If Ontario wants to reduce the number of defamation suits that are launched it should take a lesson from the United Kingdom and Australia.
The Ontario government implemented the current anti-SLAPP (strategic lawsuits against public participation) legislation in an effort to protect from expensive protracted litigation expressions related to matters of public interest. And by doing that, reduce the number of defamation cases brought in the province.
Unfortunately, the anti-SLAPP law has resulted in a proliferation of expensive litigation both at the motion level and at the Court of Appeal.
Howard Winkler This is a result of the Supreme Court holding that one element of the test under the legislation is whether each defence raised weighs more heavily
in favour of the plaintiff. This has caused parties on an anti-SLAPP motion to plead extensive evidence as the merits of each defence.
Keeping in mind that the Supreme Court of Canada has stated that the crux of the legislation is the weighing of the harm caused or likely to be caused by the expression and the public interest in protecting the expression, a more elegant solution to SLAPP would have been to follow the lead of other common-law jurisdictions.
The U.K. and Australia have taken a different approach to attempting to limit the number of defamation actions. In those jurisdictions an element of the cause of action of defamation is the requirement that a plaintiff show that they have suffered or are likely to suffer serious harm to their reputation as a result of the expression complained of. This requirement can be found in s.10A of the Defamation Act of New South Wales and s.1 of the Defamation Act in the United Kingdom.
- A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
- For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
In practice, a party to defamation proceedings can apply to the court to have the “serious harm” element determined at an early stage of the proceeding.
Under these provisions, the court has only one narrow issue to consider on a preliminary basis. Compare that with Ontario’s anti-SLAPP law, which takes a multilayered approach to assessing a defamation action, including a consideration of the merits of the defences.
The U.K. and Australian approach is much simpler, faster, less expensive and more encompassing since it extends to all defamation actions, not only ones where the expression relates to a matter of public interest. I suspect if one were to apply this one factor test to the existing ant-SLAPP cases in Ontario the results in those cases would not change. After all, this provision strikes at what the Supreme Court of Canada says is the crux of the existing anti-SLAPP legislation.
If Ontario scrapped its existing anti-SLAPP legislation and adopted this type of provision, there is no doubt in my mind that the goals of protecting freedom of expression and reducing litigation would be better achieved.
Howard Winkler is the founder and principal of Winkler Law. A certified specialist in civil litigation, he also has expertise in the areas of media and defamation law. He has been practising for close to 40 years.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law 360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.