Winkler Law

Certified Specialist in Civil Litigation by the Law Society of Upper Canada

Ian Burns

Lawyer hopes Ontario lawmakers will pay attention to Appeal Court’s message in anti SLAPP case

by

A lawyer is saying he hopes politicians at Queen’s Park pay close attention to an Ontario Court  of Appeal decision involving the province’s laws on fighting strategic lawsuits against public participation, or SLAPPs, to see if the legislation is working the way they originally intended it to. 

The Ontario Superior Court of Justice had dismissed an anti-SLAPP motion brought by funeral home company Park Lawn Corp. against investment management company Kahu Capital  Partners Ltd., which had brought a defamation action over comments that Park Lawn CEO J.  Bradley Green had made in a funeral industry publication about Kahu’s relationship with his predecessor at the company. 

Justice Paul M. Perell considered the three-part test for anti-SLAPP motions set out in Ontario’s  Courts of Justice Act and refined by the Supreme Court of Canada in two seminal decisions  (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, and Bent v. Platnick,  2020 SCC 23). At the first stage, employing a generous definition for public interest, he concluded that the impugned statements concerned a matter of public interest. At the second stage, he concluded that there were grounds to believe that there was substantial merit to the  defamation counterclaim and that the appellants had no valid defence (Park Lawn Corp. v. Kahu  Capital Partners Ltd., 2022 ONSC 3341). 

On appeal, Park Lawn did not take issue with those first two conclusions, but argued that Justice  Perell was wrong on the third stage of the test when he ruled that the harm likely suffered by  Kahu was sufficiently serious that it outweighed the public interest in protecting the appellants’  freedom of expression on a matter of public interest.

But Ontario Court of Appeal Justice Sarah Pepall ruled against Park Lawn and Green, while  noting the overall theme in the legislative debates over the anti-SLAPP legislation was that it 

was designed to stop a plaintiff from silencing a defendant by pursuing meritless litigation that served to intimidate and undermine public expression. 

“The process was intended to be efficient and economical. Presumably this would pre-empt the  need for a motion judge to conduct a granular analysis,” she wrote. “[A] deep dive into the  record is not required.” 

But Justice Pepall also noted that “unfortunately” the practice has evolved into quite a different state than that anticipated by the legislature and by the Supreme Court — and that they tend to be  expensive. She wrote that the case was a good example of this, in that Park Lawn delivered a  costs outline of just over $375,000, whereas Kahu’s costs were approximately $31,000. 

“To address the objectives of the legislation, it bears repeating that the emphasis of the motion should be on the ‘crux’ or ‘core’ of the analysis, namely the weighing exercise. This should not  involve a trial of the issue or as some have put it, a ‘trial in a box,’” she wrote. “Rather, the motion is a screening procedure. At the third stage of the test, the weighing exercise, a technical,  granular analysis is not required. Instead, as directed by the Pointes Protection and Bent  decisions, the motion judge should step back and ask what is really going on.” 

Justice Pepall suggested that “as a guideline” the costs of an anti-SLAPP motion should not generally exceed $50,000 on a full indemnity basis, while also noting there will be exceptions  and motion judges always have the power to award less, more or nothing as they see fit in the circumstances of each case. 

“The cost of litigation is a plague that has infected our system of justice and serves to undermine  its efficacy. Here the Legislature enacted a provision designed to help people avoid a costly defamation lawsuit and preserve the opportunity for public discourse and expression, but at the same time allow legitimate actions to proceed,” she wrote. “The procedure was to be efficient  and inexpensive [but] ironically, a procedure intended to avoid costly, unmeritorious, protracted  defamation lawsuits has developed into a platform for sometimes costly, unmeritorious and  protracted litigation.” 

And Justice Pepall also held that “consistent with the legislation” anti-SLAPP motions should be heard no later than 60 days after the notice of motion is filed. 

“Subject to court availability, motion judges should generally compel compliance with this 60- day time parameter. The timeframe for these motions should act as a reminder that they are meant to be limited in scope,” she wrote. “Lastly, it bears repeating that a motion judge’s determination … will be entitled to deference on appeal absent an error in law or palpable and overriding error. This is especially so with respect to a motion judge’s weighing of the public interest. Parties should be mindful of this standard of review when seeking to appeal an order in  anti-SLAPP proceedings.”

 

Justice Pepall was joined by Justices Gary Trotter and Julie Thorburn in her decision, which was issued Feb. 28 (Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129). 

Joseph Groia of Groia & Company, which represented Kahu, said the case was a good example  of not only the problems with Ontario’s anti-SLAPP legislation but also the larger issue of the costs of civil litigation matters in the province. 

“I really hope that the people up at Queen’s Park will pay some attention to what the court has  said, because they really need to look at whether this legislation is working the way they expected it to or wanted it to,” he said. “The theory is great — the theory is you don’t want to have important questions or debates on matters of public importance stifled by the threat of strategic litigation. But it has now taken on a completely dysfunctional aspect, and what I mean  by that is we are seeing big companies like Park Lawn are using the legislation to try and do  exactly the opposite of what it was intended to do.” 

Media and defamation lawyer Howard Winkler of Winkler Law said the consensus on anti SLAPP legislation is that it is meant to be a relatively inexpensive and expeditious way of weeding out defamation cases where the harm likely to be done does not outweigh the public  interest in its expression.

“And that is a good objective, but a ton of time and money is being spent on parties fighting over  whether there are valid defences or not, because the Supreme Court has set a high threshold for that,” he said. “So, what has happened is that a defendant can bring an anti-SLAPP motion and,  because of the complicated nature of the defences test, can ring up hundreds of thousands worth  of costs — and under the regime subject to an order from the court the defendant who succeeds  on an anti-SLAPP motion gets full indemnity costs.” 

Winkler said what the Court of Appeal is trying to do is “make what I call bad legislation work  through judicial interpretation.” 

“The whole object of the legislation is to deter defamation actions where the harm suffered is not really serious, but what has happened is because of the cost regime under these motions bringing  an anti-SLAPP motion has been itself used strategically,” he said. “What the court is really  saying is, notwithstanding the other aspects of the test, focus on the weighing of interest — and  if you focus on the weighing of interests and you don’t get caught up in a huge deep dive into the  question of whether the defences are valid, then the object and spirit of the legislation might be  achieved.” 

Groia said he has been concerned for many years that costs have gotten out of control, pointing  to Justice Pepall’s conclusions about the “plague” infecting the justice system. 

“I do a lot of work in Alberta and B.C., and they have a cost system that I think Ontario needs to  take a good hard look at adopting because they have tariffs,” he said. “If you argue a case in B.C.  or in Alberta you are liable for costs, but those costs are a fraction of what they would be in  Ontario. And the problem is that if you are a big corporation, you can afford it — but if you are a  little individual suing a big corporation you really can’t.” 

Counsel for Park Lawn did not respond to a request for comment.

The Lawyer hopes Ontario lawmakers will pay attention to Appeal Court’s message in anti SLAPP case was published by Law360 Canada on March 8, 2023.

‘Important’ decision balances open court principle with protection of sensitive information: lawyer

by

The B.C. Court of Appeal has outlined a process to follow when judges deal with media requests in “rare and exceptional cases” where there is no information publicly available about a court proceeding — and revealing that information to counsel for the media would represent too great a risk to an important public interest.

The court’s decision comes as the result of a challenge from Postmedia Network Inc. after a Vancouver Sun reporter was denied access to a court proceeding in which the judge had issued orders sealing the court file, banning publication of information and requiring the action to proceed in camera. Postmedia filed an application in the B.C. Supreme Court registry seeking access to the materials before the court that had led to the orders restricting court openness being granted, for the purpose of making a further application to vary or vacate those orders.

Supreme Court Chief Justice Christopher Hinkson denied the application and told Postmedia could instead file an originating application to receive an audience with the judge — which was later  dismissed. Postmedia appealed the ruling, alleging that the process taken was procedurally unfair and  that the reasons are inadequate and reveal an error of law.

But the Court of Appeal dismissed the challenge, ruling there was no procedural unfairness to Postmedia  and noting the case is the “rare and exceptional one” in which revealing the very nature of the interests  at stake would risk disclosing them.

The court wrote that it is “well established” that the open court principle, essential to the rights of  freedom of expression and freedom of the press under s. 2(b) of the Charter, is fundamental to our  democracy and to the rule of law — but those rights are not absolute.

“In certain circumstances, public access to confidential and sensitive information will endanger and not  protect the integrity of our justice system,” the court wrote. “Courts have discretion to make orders  limiting court openness where disclosure of such information would pose a serious risk to an important  public interest; where the order sought is necessary to prevent this serious risk because reasonable  alternative measures will not; and where the benefits of the order outweigh its negative effects.” 

But the court did outline a process to follow when the media seeks to bring an application to vary  complete sealing orders, and orders that a sealed case proceed behind closed doors. 

“Specifically, we are confronted with the need for a procedure to govern a situation where, by virtue of  the fact that there is no information publicly available about a proceeding, the media must make a  preliminary application for access to materials in order to understand the very basis for the orders  restricting court openness, and consequently to make meaningful submissions in a further application to  vary them,” the court wrote. 

In such circumstances, the court wrote it “may be preferable” for a judge to appoint an amicus curiae to  make an argument on how to both protect the privilege in issue and realize the open court principle. 

“In the usual situation, the media would have access to at least some material upon which to base  submissions. Occasionally, circumstances may arise in which this information cannot be given to the  media representatives themselves, but only to their counsel upon an undertaking not to disclose it,” the  court wrote. “In the situation at hand, where even revealing the nature of the privilege to counsel for  the media represents too great a risk, an amicus curiae can provide submissions regarding the  importance of ensuring that the privileges in issue are not overextended, and the way in which this can  be accomplished in the context of the case.” 

Doing that would have led to a better process in the case at hand, the court wrote. 

“When the media brings an application requesting access to materials in a fully sealed and in camera  case, the judge below should appoint an amicus to whom information can with less risk be revealed in  order to make argument,” the court wrote. “The judge must still take great caution, and material should  be redacted as needed. The result may still be a complete sealing of the file and an entirely in camera  proceeding … but the public and the parties will at least know that the matter has been fully argued and  considered.” 

The court further wrote that an application brought by the media should, at first instance, be an  application to vary or vacate the orders restricting court openness, rather than a preliminary application  for access to materials. 

“In a case like this, they amount to the same thing: allowing access to materials leading to the Restrictive  Orders would effectively be a variation of them,” the court wrote. “If a decision of the court below is to  come before this Court, it should be a substantive decision as to the need for and scope of the orders  themselves, with the benefit of the arguments of the amicus. This would result in a better use of both  courts’ resources.” 

The unanimous decision was authored by a three-judge panel of the court consisting of Chief Justice  Robert Bauman and Justices Lois Frankel and Anne MacKenzie. The court’s decision to dismiss the  appeal was made public Dec. 21, with a corrected judgment issued Jan. 9 (Postmedia Network Inc. v.  Named Persons, 2022 BCCA 431). 

Media and defamation lawyer Howard Winkler said courts have long had to deal with the struggle  between the principle of an open court and the protection of highly sensitive information — and the  likelihood of harm from the disclosure of such information. 

“The court correctly says it is only a very rare and extraordinary case in which the court will in a sense  make its decision in silence and in secret, outside of view of the public and outside of the view of the  media,” he said. “And what is really difficult about these situations — and the problem that was faced  by Postmedia — is that their counsel essentially had to argue this matter of the important principle of an  open court not having any information whatsoever about the underlying proceedings. And that really  puts the media at a disadvantage and the protection of the open court principle in jeopardy.” 

Judges across Canada will likely look at the case as one example of how the courts in one province have  attempted to create some kind of balance between open courts and the protection of information, said  Winkler. 

“This situation is very rare — and we are not going to know what is sensitive about this information that  complete secrecy is required, except perhaps once the proceeding comes to an end,” he said. “What the  court did here was very important.” 

Winkler noted all lawyers are officers of the court, but what the decision recognizes is that lawyers for  the media have somewhat conflicting duties.

“They have a duty to the client and a duty to the court as officers of the court, and one would normally  think that a lawyer’s undertaking not to disclose information to their client would be sufficient,” he said.  “But what the court has recognized there are situations where even doing that has too much risk.” 

Counsel involved in the case declined to officially comment on the decision. 

The ‘Important’ decision balances open court principle with protection of sensitive information: lawyer article was published by The Lawyer’s Daily on February 16, 2022.

Environmental groups hit Alberta government, premier with defamation lawsuit

by

Five environmental groups are suing the Alberta government and Premier Jason Kenney for defamation, saying that they have deliberately misrepresented the findings of an inquiry into foreign influence on campaigns targeting the pace and scope of energy development in the province.

The challenge, which was launched by Environmental Defence, West Coast Environmental Law, Stand.earth, Dogwood and the Wilderness Committee, alleges Kenney and the Alberta government have made “defamatory statements that directly contradict the findings” of the final report of the public inquiry into anti-Alberta energy campaigns, which emphasized that “no individual or organization … has done anything illegal.”

After the report was made public, Alberta published a “key findings” document which contains a statement that said the report had in fact concluded that the groups had been “waging a decade- long campaign of misinformation” about energy development in the province. Kenney later posted statements on social media about “foreign-funded misinformation campaigns.”

The groups say the key findings document and the posts are false and defamatory, and are seeking $15,000 each in actual damages and an additional $500,000 in punitive damages against the premier. The statement of claim says the plaintiffs wrote Kenney last November to ask for a correction and an apology, but to date he has not done so.

“In a democracy like Canada, a high-ranking government official should be held accountable for attempting to publicly alter the results of a public inquiry and for using his office to condemn and defame those he doesn’t agree with,” Environmental Defence executive director Tim Gray said in a release.

The inquiry was launched in July 2019, shortly after Kenney took office, and was led by commissioner Steve Allan. After several delays and legal challenges, it issued its final report in July 2021.

Media and defamation lawyer Howard Winkler noted the inquiry report does not include the phrase “decades-long campaign of misinformation,” but also said that it is “not a vindication of the advocacy groups.”

“There are specific findings in the report about foreign funding flowing into Canada to support these campaigns, and the report calls for increased transparency with respect to the funding of these organizations. The issue in the lawsuit, if it proceeds, is going to be the truth of whether these groups engage in a campaign of misinformation,” he said. “In a society like ours there is a strong public policy in encouraging expressions of public interest related to political policy and politicians, so you don’t want to discourage people from engaging in a free flow of ideas even if they are critical or outrageous. But if you say something knowing it to be false that suits the definition of malice, and if you add to that some collateral of improper motive then it becomes even more objectionable and offensive.”

But Winkler who is not affiliated with any parties in the case, said if it had been brought in Ontario or British Columbia, he felt it would likely be struck under legislation aimed at preventing strategic lawsuits against public participation (SLAPPs).

“Ultimately the test in the anti-SLAPP legislation comes down to whether the plaintiff can satisfy a judge that the harm caused to them by the words complained of is sufficiently serious to outweigh the public interest in the expression itself,” he said. “But I think in the context of the report, and the public interest in the role these advocacy groups play, that the public interest in the expression, whether it be true or false, would be so high that they wouldn’t be able to demonstrate sufficiently serious harm.”

A representative from Kenney’s office did not reply to a request for comment. The allegations

made in the lawsuit have not been tested in court.

The Environmental groups hit Alberta government, premier with defamation lawsuit was published by The Lawyer’s Daily on February 16, 2022.

 

Party leader’s defamation action against pundit unable to clear anti-SLAPP hurdle, judge rules

by

People’s Party of Canada (PPC) leader Maxime Bernier has been dealt a blow in his defamation action against noted political pundit Warren Kinsella after an Ontario Superior Court justice dismissed it under a provincial law aimed at preventing powerful interests from bringing actions which chill speech on issues of public policy.

Bernier, a former federal cabinet minister under Prime Minister Stephen Harper, alleged that the Conservative Party hired Kinsella and his consulting firm Daisy Group to run a secret effort called “Project Cactus” to discredit Bernier during the 2019 federal election. Statements on Kinsella’s website included entries calling Bernier a racist and a bigot, equating him with then-U.S. President Donald Trump and former Ku Klux Klan leader David Duke. Bernier alleged the “dirty tricks” campaign cost him his seat in the House of Commons, which he had held since 2006 and the purpose of Project Cactus was to “staunch the flow of Conservative support to my party” through “lies, innuendo and facts taken out of context.”

Kinsella and Daisy Group sought to have the case dismissed under Ontario’s legislation on so-called strategic lawsuits against public participation (SLAPPs), which requires the plaintiff in a defamation action to first establish that “there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence in the proceeding” and then prove “the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

And Justice Calum MacLeod ruled Bernier was unable to clear those hurdles and dismissed the lawsuit, writing that the former MP ran a “significant risk that his action will succumb to one of the defences of justification or fair comment.”

“A statement that a person is racist or a misogynist is a generalization or conclusion that is not itself either true or false. In such cases, the question is not whether the generalization is itself true, but whether it is a statement that can be justified by proof of specific instances that support it,” he wrote in Bernier v. Kinsella et al. 2021 ONSC 7451, which was issued Nov. 10. “The test is whether a reasonable person could reach the conclusion expressed based on the underlying facts if those underlying facts are true.”

Justice MacLeod wrote the case was not one of “false news” with no foundation in fact, and that Kinsella was basing his comments on actual positions taken by Bernier.

“[Kinsella’s] language may have been distasteful and he may well have taken his rhetoric to extremes that would normally be defamatory,” he wrote. “As the evidence shows, widespread characterization of Mr. Bernier and the PPC as racist and xenophobic or at least as pandering to those elements of the political spectrum was rife in the media. Comparisons with Donald Trump, Nigel Farage or Marine LePen were widespread. Mr. Kinsella may have approached his task with particular caustic enthusiasm, but, at worst, Mr. Kinsella’s postings can be seen as a drop of vitriol in a sea of criticism.”

For his part, Bernier said in a statement he was disappointed by the ruling and would be considering his options in the coming days. But Kinsella’s lawyer David Shiller celebrated Justice MacLeod’s conclusions, saying journalists, writers and bloggers would all benefit from them.

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

“It means those seeking high public office, like Bernier was, cannot use the laws of defamation to try and silence their critics,” he said.

oted defamation lawyer Howard Winkler of Winkler Dispute Resolution said he felt Justice MacLeod was correct to dismiss Bernier’s action and the case stands as a message that the anti-SLAPP legislation is going to catch debate and discourse of a political nature in all but the most egregious cases.

“The legislation is broader than just David and Goliath-type situations — it was intentionally drafted to protect expression related to matters of public interest,” he said. “It is absolutely correct for the court to look at who the parties are and the context in which the exchange is took place — and cases where you have public figures engaged in discourse related to public policy they should not be before the courts.”

Regarding the anti-SLAPP legislation itself, Winkler said it is awkwardly worded in parts and the Supreme Court’s interpretation of it has been complex and multi-layered. This has led to a lot of cases being brought, but not necessarily any consistency in the principles being enunciated by courts.

“And that is a problem. The purpose of the legislation was to create a summary process by which actions involving expressions related to public interest could be subject to an initial screening,” he said. “What we would have hoped for by now is a body of case law which has established a degree of predictability so parties and counsel could have some clear messaging from the courts in deciding whether to bring defamation actions or not.”

But Winkler also said it would be wrong to conclude Bernier’s loss meant it was now fair game to call someone a racist and any action related to that would be dismissed under anti-SLAPP legislation.

“In this case, the court concluded, at an early stage of the proceeding and on the limited record, that the defence of truth or justification weighed more heavily in favour of the defence being made out,” he said. “There was a fulsome record in this regard. Normally an allegation that someone is a racist would be considered a serious defamation which would carry with it a presumption of more than nominal damages.”

The Party leader’s defamation action against pundit unable to clear anti-SLAPP hurdle, judge rules was published by The Lawyer’s Daily on November 17, 2021.

 

Judge failed to consider ‘chilling effect’ of dismissing defamation case, B.C. Court of Appeal says

by

A defamation lawsuit brought by a B.C. school trustee against the former president of the province’s teachers union is going ahead after the provincial Court of Appeal said a dismissal of the action could have a “potential chilling effect” on future expression in matters of public interest.

Barry Neufeld, a trustee with the Chilliwack Board of Education, made negative comments about the way a provincial program designed to teach children about sexual orientation and gender identity was being implemented in schools, writing on Facebook that the program’s teaching that gender is a social construct was “biologically absurd.” In response, then-B.C. Teachers’ Federation president Glen Hansman said Neufeld’s comments “tiptoed quite far into hate speech” and the trustee was creating a school environment which was both discriminatory and hateful.

But Justice Lauri Ann Fenlon, writing for a unanimous Court of Appeal, ruled the lower court erred in its interpretation and application of the PPPA. She wrote Neufeld’s claim deserves a trial on its merits and should not have been summarily screened out at such an early stage and the lower court judge failed to consider the “potential chilling effect” on future expression in matters of public interest by dismissing the case (Neufeld v. Hansman 2021 BCCA 222).

“The risk of being tarred with negative labels (and corresponding self-censorship) is most pronounced for people who hold contentious opinions on hotly debated topics,” she wrote. “Defamatory comments that accuse someone of committing hate speech can inflict serious reputational harm. The judge’s error was in failing to consider the collateral effect that preventing Mr. Neufeld from defending himself from such serious accusations could have on other individual’s [sic] willingness to express themselves on issues of public interest in future.”

As part of his case, Neufeld brought up 11 specific publications in which Hansman allegedly made defamatory remarks. Justice Fenlon wrote that the defence of fair comment must be considered for each of them.

“In my view, the [lower court] judge’s failure to consider the specific expressions led him to overlook the constituent elements of the fair comment defence as applied to each expression,” she wrote. “The comment must also explicitly or implicitly indicate, at least in general terms, the facts on which the comment is based. The facts must be sufficiently stated or otherwise known to listeners so that they are able to make up their own minds on the merit of the comments and opinions expressed.”

Lawyer Paul Jaffe
Lawyer Paul Jaffe

Paul Jaffe, who represented Neufeld, said his client anticipated a hostile response and “sure enough that happened,” subject not only to Hansman’s comments but also human rights complaints and “a campaign of vilification to have him de-platformed.” And by using the anti-SLAPP legislation against his client, Jaffe said Hansman was using it to achieve the very purpose it was designed to prevent.

“It is a pretty onerous task for plaintiffs in defamation actions to get to court, and the legislation is supposed to be a screening device to weed out cases which are unmeritorious or are being used to punish critics,” he said. “And it is absolutely laughable to suggest a solitary school trustee in Chilliwack constitutes a threat to the freedom of expression of the president of one of the most powerful public sector unions around.”

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, said anti-SLAPP legislation was originally intended to be a summary screening process “and it has become anything but.”

“I fear the legislation is losing its effectiveness, and this decision is one example of the kind of rigour the courts seem to be requiring of motion judges, which is going to make the cost of bringing these motions prohibitive,” he said. “When you are asking a motion judge to make a summary decision in an early stage of a proceeding and then you put it under the microscope of the complexities of the law of defamation, many of these decisions are ripe for appeal.”

Neufeld’s action is a “big freedom of expression issue,” said Jaffe.

“It is in the context of a defamation claim, but if you don’t recognize the importance of defamation law in protecting free speech then you’ve got a problem,” he said. “And the judge below saw it as a contest between defamation law and free speech and failed to recognize that defamation law protects free speech.”

Jaffe said he is trying to set a trial date for February next year. Counsel for Glen Hansman did not respond to a request for comment.

The Judge failed to consider ‘chilling effect’ of dismissing defamation case, B.C. Court of Appeal says was published by The Lawyer’s Daily on June 25, 2021.

 

Common law tort of Internet harassment should be recognized in Ontario: judge

by

An Ontario Superior Court judge has concluded that a common law tort of Internet harassment should be recognized in the province as part of a decision which found a woman had engaged in “extraordinary campaigns of malicious harassment and defamation” online which was “carried out unchecked, for many years, as unlawful acts of reprisal.”

The decision in Caplan v. Atas 2021 ONSC 670 involves four separate cases brought by over 40 plaintiffs against Nadire Atas for the posts which she placed online on sites such as Reddit and Facebook, which for the most part do not monitor or control the content of postings. She largely posted anonymously or using pseudonyms, and Justice David Corbett wrote she “has carried on systematic campaigns of malicious falsehood to cause emotional and psychological harm to persons against whom she has grievances.”

“These include adverse parties in litigation, Atas’ own lawyers, and the lawyers and agents, relatives (including siblings, spouses and children) of these people, a former employer, its successor, owners, managers and employees of this former employer, and generally an ever-widening circle of victims, generally chosen to cause misery to Atas’ prime victims, those against whom she harbours festering grievances,” he wrote in his Jan. 28 decision. “As of the time that these motions were argued [in 2019], there have been as many as 150 victims of Atas’ attacks.”

The posts were traced to Atas after a long campaign by many of the plaintiffs. Atas, who was self-represented in the case, has been deemed a vexatious litigant and was cited for contempt of court as the case against her unfolded. According to court documents, she admitted to having authored some of the posts but denied she was responsible for the majority of them. She also argued the defamation claims were barred by the notice requirements under the provincial Libel and Slander Act and the court had shown bias against her, but these arguments were rejected.

Justice Corbett noted courts can order a defendant to remove offensive content on the Internet but such an order would not be effective in the case, as Atas has shown that she will not follow court orders, has posted on sites that have policies of not removing content on request and is destitute after filing for bankruptcy.

“[But] the court itself has an interest in seeing the overall conflict brought to an end,” he wrote. “The alternative order proposed by the plaintiffs … vesting title to the postings in them, with ancillary orders enabling them to take steps to have the content removed, will be more effective for them.”

And Justice Corbett concluded that a common law tort of Internet harassment should be recognized in Ontario “because Atas’ online conduct and publications seek not so much to defame the victims but to harass them.” He noted the Ontario Court of Appeal recently overturned a lower court ruling which recognized a common law tort of harassment (Merrifield v. Canada (Attorney General) 2019 ONCA 205), but “the facts of the case before me are very different.”

“The intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery,” he wrote. “The law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct.”

Plaintiff counsel Gary Caplan said he could not comment on the specifics of the case due to ongoing litigation against Atas, but said the decision’s importance was “timely in the sense there has been a lot of recent media attention brought to bear on the problems occasioned by either Internet harassment or Internet defamation.” Caplan’s brother and two sons-in-law were among the plaintiffs in the case after being targeted by Atas.

“How to deal with Internet harassment and defamation is a very big question and I am not sure there is a right answer,” he said. “One of the very obvious issues is what do you do with posters or people who access the Internet anonymously using aliases or fake names, and in terms of court process one of the challenges is trying to have the evidence necessary to show who is behind it.”

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, said it is an “extreme example of the kind of harm that can be done on the Internet by one person.”

“And as egregious as the facts are in this particular case, this kind of situation plays out every day on Facebook, Google, Twitter and other social media platforms where the lives and businesses of ordinary people are ruined by this kind of conduct,” he said.

Although the plaintiffs were able to achieve significant remedies against Atas, Winkler said the case doesn’t really deal with the central problem of online harassment and defamation — the fact that the social media platforms allow the material to be posted and largely refuse to do anything about it when complaints are raised. He said the Ontario government should adopt a recommendation made by the Law Commission of Ontario (LCO) in its 2020 report on defamation law in the Internet age to bring in legislation which allows for notice provisions of defamatory content to be passed on to social media platforms, and it imposes an obligation on them to take down the content if there is no response to the notice.

“If the province enacted that, and if they did it while recognizing this new tort of Internet harassment, then there would be a recourse available to ordinary people in situations like this,” he said. “Without that platform and that megaphone for speech, then the kind of conduct and behaviour that Ms. Atas engaged in would have been silenced. It was only when these social media platforms refuse to respond in a way that provides a proper remedy that the court has found it necessary to intervene.”

The Common law tort of Internet harassment should be recognized in Ontario: judge was published by The Lawyer’s Daily on February 8, 2021.

 

Case could set precedent in determining social media giants’ liability for defamation: legal expert

by

A B.C. court has given the green light to a defamation action against social media giant Twitter, with a legal expert saying the case has the potential to settle a major unresolved issue in Canada — what is the liability of social media companies for comments users post online.

Frank Giustra, the B.C.-based founder of entertainment company Lionsgate, brought a defamation action against Twitter for comments made about him online concerning his relationship with Bill Clinton and the Clinton Foundation, the former U.S. president’s charity. He was targeted by online trolls who connected him to the debunked “pizzagate” conspiracy theory concerning a supposed Satan-worshipping pedophile ring consisting of many high-profile individuals from around the world. Posters also made comments about his involvement with the Boys Club Network charity, of which he is a founding patron.

Twitter asked the action to be dismissed, arguing California was a more suitable venue for any complaint against the San Francisco-based company. But Twitter would have no liability in the United States due to the freedom of speech provisions in the First Amendment to the U.S. Constitution and s. 230 of the Communications Decency Act of 1996, which gives Internet platforms immunity for tort claims arising from the dissemination of content by third-party users.

But B.C. Supreme Court Justice Elliott Myers sided with Giustra, writing the court does have jurisdiction due to the billionaire’s close ties to the province and the fact that many tweets referred to B.C. and were published there (Giustra v. Twitter, Inc. 2021 BCSC 54).

“The presumption is that a defendant should be sued in only one jurisdiction for an alleged wrong, but that is not a simple goal to achieve fairly for Internet defamation,” he wrote in his Jan. 14 decision. “[Giustra] has gone far enough in demonstrating damage to his reputation here. I do not agree with Twitter, who argues that of all places in the world, the plaintiff’s reputation has not been harmed in B.C.”

In an online post, Giustra said that he believed “words do matter.”

“Recent events have demonstrated that hate speech can incite violence with deadly consequences,” he said on Twitter.

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, called the decision important because the issue of social media platforms’ liability for the content individuals post on their sites is undecided in Canada.

“I probably get on average two calls a week from people who are looking for some kind of advice about false or malicious postings about them or their businesses online,” he said. “And the reality is that for most people, until the issue of liability is resolved, they just don’t have the resources to take on these huge enterprises so they are really left without any remedy whatsoever.”

Winkler noted Giustra has the resources to overcome any obstacles that may be put in his path, and said if he is able to overcome those obstacles his action cou ultimately set the precedent in determining the social media giants’ liability in Canada.

“And if the courts find that there are circumstances under which the Facebooks and Twitters of the world are liable once they become aware of the defamatory nature of any content, then what is going to happen is one of two things — they will change their model and exercise some degree of control over the content once they receive complaints, or if they refuse to do that we will know that there is a remedy available,” he said.

Counsel for Twitter declined to speak on the case, and the company’s representatives did not respond to a request for comment. The Lawyer’s Daily also reached out to Giustra for comment but also received no response.

The Case could set precedent in determining social media giants’ liability for defamation: legal expert was published by The Lawyer’s Daily on January 26, 2021.

 

Technical deficiencies opened door for Yukon Appeal Court to overturn defamation verdict: lawyer

by

The Yukon Court of Appeal has sent a defamation case back to trial because of the inadequacy of the judge’s instruction to the jury, with a lawyer characterizing it as a “results-driven” decision as he felt the court did not like the original verdict.

The case in Senft v. Vigneau 2020 YKCA 8 deals with a defamation action brought forward by Angela and Michael Senft for allegedly defamatory comments made by Audrey Vigneau and Susan Herrmann. The Senfts had been involved in a dispute with a former friend, Daniele McRae, over the title to her house. The defendants claimed the Senfts were trying to force McRae out of her home and move her into a seniors’ residence, allegations which were posted on Facebook and in flyers sent out to the Dawson City community, as well as a GoFundMe page.

The Senfts commenced an action against Vigneau and Herrmann, who both later publicly apologized. At trial, Vigneau and Herrmann defended their comments by saying they were fair comment, but the Senfts replied by saying they had acted with malice in publishing the comments; a successful claim of malice would defeat any successful defence of fair comment.

The jury awarded damages to the Senfts, finding Vigneau and Herrmann had made the allegedly defamatory comments and acted with malice when publishing them. The jury made no finding with respect to the fair comment defence, and awarded the Senfts approximately $377,000 against Vigneau and approximately $432,000 against Herrmann.

But Justice Daphne Smith, writing for a unanimous Court of Appeal, set the awards aside and ordered a new trial. She ruled the trial judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question to the jury, and also failed to instruct the jury that express malice could not be considered unless they first determined Vigneau and Herrmann had established the defence of fair comment on a balance of probabilities and if established, in order to defeat the defence, that malice was Vigneau and Herrmann’s dominant motive in publishing the defamatory comments.

“In my opinion, as a matter of law, the judge was required to make a determination on whether the evidence adduced raised a probability of malice before instructing the jury on the issue,” she wrote in her March 27 decision. “His failure to do so constituted an error of law reviewable on a standard of correctness. In the circumstances of this case, this error could not be rectified after- the-fact on appeal.”

Justice Smith noted the lower court judge “properly recognized that, months after the trial had been completed, he could not undertake a detailed review and weighing of the evidence in order

to remedy the oversight of failing to make the required ruling.”

“This court is faced with the same problem. Where the issue of express malice raises a question of fact, an appellate court is generally not well-suited to step in and undertake a detailed evidentiary analysis as a matter of first instance in order to determine if the evidence raised a probability of malice,” she wrote. “This court is in no position to undertake a detailed review and analysis of the evidence for the purpose of determining if it raised a probability of malice, where the trial judge himself found the delay had made it impossible for him to undertake the task. In my view, the only way the error in this case can be rectified is to order a new trial.”

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution said the lesson of the decision is that “close attention has to be paid to the technical requirements of the law, and that if you fail to appreciate those technical aspects of the law then the decisions of the court are going to be open for review.”

“In terms of remitting it back for consideration [the Court of Appeal] had two choices — they could have sent it back to the trial judge or ordered a new trial. Given the statement by the trial judge that he could no longer, given the length of time, undertake a detailed review in weighing the evidence they were incapable of sending it back to the trial judge for reconsideration, so they were forced therefore to order a new trial,” he said. “However, the question remains of whether the Court of Appeal could have substituted its own decision and brought an end to the litigation, but I think given the circumstances of this case, given that it was a jury trial and jury verdict it probably would have been very difficult for them to do that.”

But Winkler said he was of the view that the Court of Appeal’s decision was very results-driven, in that he felt the court didn’t like the jury verdict and was inclined to find a basis to allow the appeal.

“You never know the decision-making process for a jury and that is why they are very difficult to overturn,” he said. “So, when I read this case, it was likely the jury was wrong in finding the

defendants were motivated by malice, which is why on the face of it, it appears to be an unfortunate decision. But what the court needed to do was find technical deficiencies in the judge’s decision-making and instructions to the jury to open the door to the opportunity of allowing the appeal.”

Counsel in the case did not respond to a request for comment. The Yukon Court of Appeal is made up of justices of the British Columbia Court of Appeal and justices from the Yukon Territory, Northwest Territories and Nunavut.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

The Technical deficiencies opened door for Yukon Appeal Court to overturn defamation verdict: lawyer was published by The Lawyer’s Daily on April 9, 2020

 

B.C. Appeal Court ruling on responsible communication tips balance in favour of free expression: lawyer

by

In Grant v. Torstar Corp. 2009 SCC 61, the Supreme Court of Canada modified the law of defamation to provide greater protection for communications on matters of public interest. One of the factors relates to the concept of “reportage,” which are statements attributed to someone other than their publisher. The ruling stated the “repetition rule” (which is that a person who repeats a defamatory statement made by another is just as liable as the maker of the statement)did not apply to reportage on a matter of public interest, provided that four prerequisites are satisfied: namely, the statement is attributed to a person; the report indicates its truth has not been verified; the report sets out both sides fairly;and the context of the statement is provided.

But Justice Tysoe held, even if the reportage exception is made out for some statements in the publication, “it is still necessary to determine whether the publication was responsible because the defence is to be applied to the publication as a whole.”

“[Justice Dardi] applied the Grant responsibility factors to the statement in isolation and the publication the defence of responsible communication was not established,” he wrote. “This approach gave no effect to the reportage exception. This would not have occurred if the judge had properly interpreted [Grant] to mean that it was the publication as a whole that is required to have been responsibly made.”

The court then allowed Canwest’s appeal, and also dismissed a cross appeal by Wilson in which he argued Justice Dardi failed to consider the fact William Lougheed had committed the statutory tort of harassment against Wilson in determining whether the publication of the article was in the public interest. Justice Tysoe was joined by Justices Mary Saunders and Harvey Groberman in his decision, which was released Nov. 27 (Wilson v. Canwest Publishing Inc./Publications Canwest Inc. 2018 BCCA 441).

Daniel W. Burnett, Owen Bird Law Corporation

Daniel W. Burnett of Owen Bird Law Corporation, who represented Canwest and O’Connor, said the case is important in terms of how the responsible communication defence is applied. He noted, while the Supreme Court in the Grant case referred briefly to the need to take an overall approach, this was the first case which grapples in more detail with a situation where a judge says she will deal with one piece of a story differently.

“The whole point of the responsible communication defence is if something is in the public interest and the author exercised due diligence then we will excuse errors,” he said. “So, if a court can carve off the part that’s the error, which almost by definition is going to have some failings that occurred in order to get there, then effectively you’ve punctured the defence. The Court of Appeal corrected that.”

But James Straith, who represented Wilson, said the decision “seems to extend the reportage defence” to the point that he is worried individuals may feel free to publish false items and then hide behind a defence of responsible communication. He said he and Wilson were weighing their options about whether to seek leave to appeal to the Supreme Court.

“The question that was being asked in the Court of Appeal was if you’ve got five chapters in a book and one is completely fictitious, can you even sue on that one chapter anymore?” he said. “Because they can say we got four of the five chapters right, so we win. I just find not just the outcome of this case but the wider implication of this kind of journalism getting the green light to be disturbing.”

Burnett said he didn’t share Straith’s concerns, saying the decision made it quite clear reportage doesn’t stand as a defence unto itself.


“In this case all of the elements set out in the Grant case for reportage were met in terms of the story at issue, but then in addition to that they had to decide that the story was overall handled responsibly,” he said. “Reportage doesn’t mean you can just quote somebody and you’re immune — the quotation must be itself in the public interest and must be reported making it clear it’s unproven and getting the other side of the story. There are some statements that are very much in the public interest whether they are true or not.”

Howard W. Winkler
Howard Winkler, Winkler Dispute Resolution

Howard Winkler of Winkler Dispute Resolution noted there has been a trend in recent cases and in litigation such as anti-SLAPP measures to balance interests more towards freedom of expression rather than protection of one’s reputation.

“What was significant about the development of this responsible communication defence was for the first time it allowed a defendant to be wrong, to publish something that was false and still escape liability,” he said. “And what this case perhaps does is that it further tips the balance in favour of the protection of expression by treating all of the charges in the communication as a single publication rather than treating one or more of them as separate charges.”

Winkler said Straith has a point about his concerns surrounding the reportage defence, but added the courts will have to be very sensitive to the consideration of whether something constitutes a single charge or whether it contains separate and distinct charges.

“And if the court properly undertakes that analysis then the media shouldn’t be able to just throw in frivolous and perhaps false allegations into what otherwise would be a matter of public interest it,” he said. “If that happens then hopefully what the court would decide is what they’ve thrown in constitutes a separate charge and treat it separately. In this case the court found this wasn’t the case, but hopefully in the future this decision and its application won’t be abused to permit that kind of situation.”

The B.C. Appeal Court ruling on responsible communication tips balance in favour of free expression: lawyer article was published by The Lawyer’s Daily on December 4, 2018