Winkler Dispute Resolution

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

Civil litigation

Be careful what you wish for when it comes to defamation claims

by

The publicity surrounding a defamation lawsuit in British Columbia shows that attempts to silence a critic with legal action can sometimes backfire, says Toronto lawyer Howard Winkler.

“Plaintiffs must think long and hard about the consequences of bringing a defamation lawsuit when the expression is in relation to a matter of public interest,” says Winkler, principal and founder of Winkler Law. “What is playing out in B.C. is a cautionary tale for the rest of the country.”

According to a news story, a prominent developer launched a defamation lawsuit against a former council candidate for tweets that questioned his relationship with a local mayor. The former candidate responded by asking that the suit be dismissed under a provincial law protecting people from strategic lawsuits against public participation, or so-called anti-SLAPP legislation.

The story states tweets indicated the developer “surreptitiously wields power and influence over elected representatives,” specifically around plans to replace the city’s RCMP detachment with a municipal police force.

In his seven-page affidavit, the former candidate doubles down on his defence of truth saying the developer told him he had already decided who should be the chief of the new police force. He also alleges the developer boasted he was paying cleaning staff at city hall to retrieve items from councillors’ garbage cans.

Sometimes better not to say anything

“This a good example where the plaintiff might have been better off to just keep his head down and let this pass,” Winkler tells LegalMattersCanada.ca. “The only reason the former candidate was able to file the affidavit was that the developer was suing him. He was entitled to defend himself, and did so with the benefit of the anti-SLAPP legislation.”

Much of the evidence in the affidavit may never have come out if the developer had not launched the defamation suit, he says, but now those damaging claims can and have been publicly reported.

“By virtue of the anti-SLAPP legislation, the defendant now gets a free shot at the plaintiff, Winkler says. “While the best results for the defendant would be a dismissal of the action, he has also been given an opportunity to pursue his attack on the plaintiff.

“This arguably does way more damage to the developer than the original tweet,” he adds. “You have to wonder if he now regrets starting this action.”

The hearing to deal with the anti-SLAPP application was heard on Oct. 28.

Significant cost consequences

If the suit is dismissed under the anti-SLAPP legislation, the developer will have a significant cost liability.

“That will that add insult to injury, which is the purpose of anti-SLAPP,” he says. “It is specifically designed to force plaintiffs to consider whether what they are complaining about relates to a matter of public interest and if so to think very carefully about suing for defamation.”

If the lawsuit is dismissed due to the anti-SLAPP legislation, Winkler says that would mean the court decided the public interest in the matter outweighs the harm or the potential harm done to the developer.

Two provinces have anti-SLAPP laws

In 2015, Ontario enacted sections 137.1 to 137.5 of the Courts of Justice Act in an effort to curtail SLAPPs, or lawsuits intended to intimidate and silence critics who cannot afford costly and time-consuming litigation. It gives judges the power to dismiss lawsuits if the defendants can convince the court that the action arises from an expression that relates to a matter of public interest.

British Colombia is the only other province with such legislation, but Winker says he expects more provincial governments will develop similar laws in the future.

The Supreme Court of Canada took anti-SLAPP legislation into consideration in reaching judgments in two decisions this year, including one in which Winkler represented the respondent.

Originally published by LegalMatterscanada.ca on  November 9, 2020

Winkler successful in accessing disciplinary hearing record

by

Decisions like a recent case that applied the open-court principle to a doctor’s disciplinary proceedings contribute to a better informed Canadian public, says Toronto lawyer and mediator Howard Winkler.

Winkler, principal and founder of Winkler Dispute Resolution, acted for a major Canadian magazine after it ran into difficulty during its investigation into a disgraced gynecologist, helping the publication gain access to files and exhibits filed during the doctor’s disciplinary hearing at the College of Physicians and Surgeons of Ontario (CPSO), which ultimately ended in the revocation of his licence.

“Without that access, the story that was ultimately published would not have been as fulsome in terms of this physician’s previous disciplinary record, and the full extent of his misconduct would have remained unknown,” he tells AdvocateDaily.com.

According to the magazine feature, the author began his in-depth investigation in mid-2018 after the CPSO posted a brief notice to its website announcing the doctor’s licence to practice had been stripped from him.

But when the writer contacted the regulator about viewing the case file and related exhibits, the college’s hearing division asked him to make legal submissions to back up his access request.

That’s when they called in Winkler, a longtime counsel to the magazine who says he’s normally asked to carry out pre-publication legal reviews and conduct litigation on their behalf.

Winkler’s formal request for the full disciplinary file was opposed not only by the doctor, who objected to the impact on his privacy rights but also by the CPSO itself, which expressed concern about identifying hospital staff and other witnesses who played a part in the original proceedings.

“We had a battle to gain access to those records, but ultimately, we were successful in obtaining everything we asked for, and the documents were only redacted to the extent necessary to protect the identity of the patients involved,” Winkler says.

He says the magazine’s case was built on the foundation of a landmark 2018 Superior Court judgment that effectively extended the open-court principle to the province’s administrative tribunals, including disciplinary bodies for Ontario’s self-regulating professions.

The judge in that case ruled that certain provisions of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA), which tribunals relied on to block or delay public access to their files, were unconstitutional.

“In fashioning a regime that prohibits the disclosure of ‘personal information’ unless the press can establish its justification, FIPPA has it the wrong way around,” the judge wrote in a decision that went unchallenged by the provincial government, adding that the law’s emphasis on privacy at the expense of openness “not only has a negative impact on the press but also affects other stakeholders.”

The magazine story printed by Winkler’s client eventually revealed extensive details about the once highly respected gynecologist’s checkered disciplinary history with the CPSO, and his practice of administering drugs to pregnant patients without their consent in order to induce delivery — typically at the weekend, when he was able to charge OHIP a higher rate for his services.

Pilot’s victory classic application of anti-SLAPP law: Winkler

by

The dismissal of an airline’s $10-million defamation claim against a former pilot is a textbook case of anti-SLAPP legislation in action, says Toronto lawyer and mediator Howard Winkler, who acted for the pilot.

As the National Post reports, the airline sued its former employee after he self-published a book that was critical of the company’s safety record.

But Ontario Superior Court Justice Shaun O’Brien threw out the case under relatively new provisions of the province’s Courts of Justice Act designed to deal with Strategic Lawsuits Against Public Participation (SLAPP), which allow for the dismissal of actions involving comments on a “matter of public interest.”

Winkler, principal and founder of Winkler Dispute Resolution, tells AdvocateDaily.com that his client was extremely relieved by the decision.

“The cost of defending the action and the potential liability would have ruined him,” he says. “When you consider the importance of the nature of his speech, the indicia of SLAPP, combined with the minimal amount of damage, I think you have a classic application of what SLAPP legislation is designed to do.”

The pilot’s book was critical of his former employer. He also gave interviews as part of a Post investigation into the safety and maintenance practices of the airline, which strongly denied all complaints, pointing to its success in passing a rigorous international safety audit.

The newspaper says it was threatened with a lawsuit following the publication of its investigation, but the airline ultimately proceeded against the pilot alone and has also announced its intention to appeal.

Despite the book’s “provocative and sensationalized” wording, O’Brien concluded that any damage done was outweighed by the public interest in the debate around an issue as serious as airline safety.

“[The defendant] spoke out on a matter of significant public importance,” the judge wrote. “He caused limited harm to [the airline] with his self-published book, but was silenced by a much more intimidating litigant.”

According to the Post, the pilot’s book sold just 247 copies online before the airline convinced the retailer to stop selling it, while the pilot himself halted his own sales once the lawsuit was launched. Those facts showed that the action had interfered with the defendant’s ability to express himself, the judge found.

“He has said he does not feel free to pursue an important conversation about the safety of regional airlines and, in particular, [the airline],” she wrote. “In other words, actual libel chill is an issue here.”

Since its passage with all-party support at Queen’s Park in November 2015, Winkler says the anti-SLAPP legislation has been well-tested in court. After a number of Superior Court motion decisions, the Court of Appeal weighed in last summer after hearing six appeals together.

He says those cases and the most recent decision should give all plaintiffs in defamation actions pause.

“At this point in time, we’ve had the benefit of a good number of decisions, and I think there is a real incentive for plaintiffs to assess, at the very earliest stage, whether the legislation will apply to their particular complaint and whether it’s worth proceeding,” Winkler says.

Still, he warns that the situation could change once the Supreme Court of Canada hears appeals in two cases later this year.

“Everyone will be waiting to see what the Supreme Court has to says about the proper application of this legislation,” says Winkler, who will appear for one of the parties at the nation’s top court at the hearing in November.

Winkler successful in landmark media libel case

by

A recent Ontario Superior Court ruling of criminal contempt resulted in a newspaper publisher being sentenced to 21 days in jail and levied with one of the highest damages awards for spreading a false statement about a Canadian senator, says Toronto litigator and mediator Howard Winkler.

Justice Frederick Myers’ ruling follows an earlier finding by Superior Court Justice Sidney Lederman that the defendants — a Toronto-based ethnic community newspaper, its holding company and publisher — libelled the plaintiff, who represents Ontario in the Red Chamber.

“The finding of criminal contempt is quite unusual and the imposition of the jail term was unique,” says Winkler, who represented the plaintiff senator.

The court found that setting only a financial penalty would not work in finding a resolution or a deterrent in this case, he tells AdvocateDaily.com.

In the earlier court hearing, Lederman issued an injunction prohibiting the publisher and her company from repeating the libel of the plaintiff, directly or indirectly, expressly or by innuendo.

But less than two months later, the publisher repeated the libel, says Winkler. While she was found to be in contempt by Myers in Superior Court, a review of the case by the Ontario Court of Appeal unanimously found “the appellant created a controversy so that she could defame the respondent. This was entirely personal.”

The hearings determined the publisher’s conduct was deliberate “and the intent all along was to destroy the reputation of the senator,” says Winkler, principal and founder of Winkler Dispute Resolution. “We presented evidence that years ago the publisher felt slighted by the senator when he was for good reason late in attending a function held by the newspaper,” he says.

The newspaper then published an article saying the senator should respect the media because it could destroy him, Winkler says.

“The antagonism continued and the court was persuaded that ultimately it was all part of the threat the publisher made those many years ago,” he says.

The rules of responsible journalism are clearly outlined in a 2009 case formulating the boundaries of responsible communication, he says. But the publisher in this matter was not able to provide the court any “evidence or verification of any research to support the allegations being made, there was no fact-checking, and the newspaper never reached out to the senator to warn him about the nature of what was to be published and give him an opportunity to respond,” Winkler says.

“In fact, on cross-examination, I was able to get her to admit that she didn’t believe the allegations to be true,” Winkler says. “You go down the checklist of responsible communication and it’s a classic case of how to be irresponsible and disentitle oneself to that defence.”

It’s common that in a case where a court order was defied, a ruling of civil contempt may be issued by a judge, he adds, but Myers “was very clear in his view that this amounted to a criminal contempt because it was so knowing and deliberate on the defendant’s part in his opinion.

“The criminal contempt is for an offence against the court, not so much the plaintiff,” Winkler explains. “Myers found the publisher was aware of the order, that she knew the scope of it and deliberately tried to circumvent it by having other people republish the original libel.”

The appeals court found the conduct of the publisher “demanded a substantial award of punitive damages,” adding after Lederman’s judgment, “the appellant had repeated the defamation, knowing full well that it was false. On the facts as found by the motion judge, deterrence could only be adequately served by a significant award of punitive damages.”

The behaviour of the publication is unprecedented, Winkler says.

“This is a situation where the publisher allowed her personal animosity towards the senator to creep into the work of the newspaper and the product it was publishing,” he says. “This case represented a complete dereliction of the responsibility that comes with the privilege of being a publisher.”

Winkler believes the case sits among one of the top damage awards issued for media libel.

“I think the case will be relied upon by others to try and push the envelope on damages,” he says, which included $150,000 for general and aggravated damages, $100,000 in punitive damages, and each of the media defendants was fined $5,000 for contempt and court costs, totalling $150,000.

“We’re engaging in efforts to collect on the judgment and the cost orders,” he says.

Free expression outweighs reputation protection: Winkler

by

A former member of Parliament’s unsuccessful defamation case against a major B.C. newspaper underscores a recent trend by the courts to balance interests more towards freedom of expression rather than protection of a person’s reputation, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.

The man’s claim was based on an article that contained allegations of unpaid debts, improper campaign spending and unsuccessful business ventures, which led to his resignation from the Liberal Party caucus, reports the online legal news outlet.

At issue was the allegation the former politician received a personal loan from his mother-in-law just before her death, something that was established at trial to be untrue, the legal site says. The trial judge ruled most of the article was covered by responsible communication, but “the allegations about the loan were ‘a distinct and separate subject in the story that was plainly untrue and was not investigated with sufficient diligence,’” The Lawyer’s Daily notes.

“Justice David Tysoe, who wrote the unanimous decision of the Court of Appeal, ruled the trial judge erred in applying the defence of responsible communication separately to different portions of the article, rather than its entire content,” it adds.

In the matter, the B.C. Court of Appeal ruled the lower court judge was wrong in not considering whether the overall tone of the article was responsible communication rather than just one section while the plaintiff’s lawyer said he fears the decision could allow people to publish false information and escape responsibility, the publication reports.

However, “When the article is considered as a whole, the appellants are entitled to succeed on the defence of responsible communication,” the judge wrote.

Winkler, principal and founder of Winkler Dispute Resolution, who was not involved in the case and comments generally, says the most significant aspect about the emergence of the responsible communication defence is that for the first time it allowed a defendant to be wrong, publish something that was false, and still escape liability.

“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,” he says.

Going forward, Winkler says the courts will have to be careful in their consideration as to whether the contents of an article constitute a single charge or separate and distinct charges.

“If the court properly undertakes that analysis then the media shouldn’t be able to just throw frivolous and perhaps false allegations into what otherwise would be a matter of public interest,” he says.

If the media does abuse the application of this decision, then ideally the court will decide that what they’ve thrown in constitutes a separate charge and treat it as such. However, in this matter, the court found this wasn’t the case, Winkler says.

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