Civil litigation

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.

“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.

 

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.”

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 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.

 

The news media has mischaracterized the legal arguments put forward by a former lawyer for Donald Trump as she attempts to have a billion-dollar defamation lawsuit against her dismissed, says Toronto defamation lawyer Howard Winkler.

It is alleged that Sidney Powell stated on television and in legal briefs that “Dominion machines ran on technology that could switch votes away from Trump, technology she said had been invented in Venezuela to help steal elections for the late Hugo Chávez.”

She is currently seeking the summary dismissal of the claim against her by Dominion Voting Systems.

“The news coverage of the motion by Powell to dismiss the claim has been inflammatory, misconstruing the legal grounds her dismissal motion is based on, says Winkler, principal and founder of Winkler Law.

As an example, he points to an article in The Guardian, headlined, “Pro-Trump lawyer says ‘no reasonable person’ would believe her election lies.”

“This headline is misleading and is likely to be interpreted as meaning that Powell is admitting that no reasonable person would take her voter fraud claims to be true,” Winkler says. “That is not the premise of her dismissal motion, though most of the media seems to have seized on that incorrect interpretation.

“In fact, what Powell argues is that ‘no reasonable person’ would conclude that her allegations were statements of fact, but rather they were understood as statements of her opinion,” he explains.

Not a defence by ‘reputational suicide’

“Most coverage on this issue seems to suggest she is relying on a defence built around the idea that since she has so little credibility, nobody would believe what she is saying is true and therefore her statements are not defamatory,” Winkler adds. “In essence, this would be a defence of self-inflicted reputational suicide. But that is not a correct interpretation of her motion.”

Quoting from her legal documents, the article states: “It was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern.”

That is the pleading of the well-recognized defence of fair comment within the law of defamation, says Winkler, adding that Powell also has the benefit of the First Amendment of the U.S. Constitution, guaranteeing her right to freedom of speech.

“Under these circumstances, in order for there to be liability for publication of defamatory opinions, Dominion is going to have to demonstrate, among other things, actual malice, meaning that she knew the statements she was making were false or that she was reckless about their truth or falsity,” he says.

Legal factors in her favour

Another factor in Powell’s favour is that the statements made in court filings about Dominion were consistent with her public allegations of voter fraud, says Winkler. “The law of defamation provides protection for statements made in the course of the litigation process.”

He adds, “the real battle is going to be whether Powell can ground her opinions on underlying facts which can be proven to be true; and the issue of malice, which gets into a question of her state of mind.”

Winkler predicts that Powell’s motion to dismiss the defamation lawsuit will fail, but not for the reasons most media outlets are reporting.

“I don’t think she stands a chance on the motion because of the issue of malice. That likely needs to be determined at trial, and not through a summary motion,” he explains. “While I don’t think she will be successful on her motion, the media has been unfairly reporting the legitimate nature of the motion which she has brought.”

Trump supported her statements

The Guardian article says Powell’s claims about Dominion voting machines originated in a comment on a pro-Trump blog.

“They would be amplified on a global scale by Trump himself in a 12 November tweet in which he wrote in part “REPORT: DOMINION DELETED 2.7 MILLION TRUMP VOTES NATIONWIDE,” the article states.

It adds that the former president reportedly supported Powell’s claims in private and trumpeted them in public, touting Powell two weeks after the election as a key part of “the legal effort to defend OUR RIGHT to FREE and FAIR ELECTIONS.”

Many Washington insiders expressed disbelief in Powell’s statements. “This is her defense. Wow,” tweeted the Republican representative Adam Kinzinger.

“Bad argument!” added Trump’s former lawyer Michael Cohen in a Tweet. “[Powell] should have gone with an insanity defense due to #TrumpDerangementSyndrome.”

Winkler says those comments further confirm how the legal principles behind her dismissal motion are being misconstrued.

Lawsuit tests free speech in campaigns

Provided that Powell’s dismissal motion fails, he says he will be interested to see how Dominion’s US$1.3-billion defamation lawsuit plays out.

“In both the United States and Canada, there is not a lot of litigation concerning false statements made in the course of a political campaign,” Winkler says. “Those cases almost never make it to trial. They are usually brought and then abandoned or settled for political purposes.”

He says the Dominion lawsuit again Powell could help to define the limits of free speech during political campaigns.”

“While there is greater protection of free speech in the United States, it’s curious there hasn’t been more of the same litigation in Canada arising from false statements made during election campaigns,” Winkler says.

Dominion Voting Systems was founded in Canada in 2002 and has headquarters in Toronto as well as Denver. According to the firm’s website, “Multiple U.S. government agencies and election customers across 28 states have conclusively affirmed that no voting system deleted, lost, or changed votes in the 2020 election.”

Originally published by LegalMatterscanada.ca on  April 13, 2021

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.

• Five key recommendations on proposed defamation law
• A balancing of interests is currently paramount in anti-SLAPP litigation
• Another cautionary tale for plaintiffs: defamation lawsuits can be costly

“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

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.