By LegalMatters Staff •A recent Superior Court of Justice ruling rejecting an application to dismiss a defamation lawsuit under anti-SLAPP legislation will likely be back in court on appeal, says Toronto litigator and lawyer Howard Winkler.
Winkler, principal and founder of Winkler Dispute Resolution, says he believes the judge in CUPW v. B’nai Brith Canada et. al posed but did not answer the key question of whether the public interest in protecting the statements made by the defendants outweighed the harm suffered or likely to be suffered by the plaintiff.
“In my view, the judge’s failure to engage in that balancing of interests is fatal to the decision and for that reason, an appeal will be successful,” he tells LegalMattersCanada.ca. “It’s a curious decision in that the judge clearly understood what needed to be done, what needed to be answered, but he didn’t complete the analysis.
“It’s too early for anyone to comment on the merits of the case because that would involve a deep examination into the facts,” adds Winkler, who was not involved in the case but comments generally.
Under Ontario’s anti-SLAPP (Strategic Litigation Against Public Participation) legislation, judges have 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.
The amendments to the Courts of Justice Act are also known as the “Gag Proceedings,” sections intended to, among other things, encourage individuals to express themselves and promote broad participation in debates on matters of public interest.
Winkler appeared before the Supreme Court of Canada (SCC) last fall on behalf of lawyer Maia Bent in Maia Bent, et al. v. Howard Platnick, et al, a $15-million lawsuit brought by Platnick. This is the first case in which this legislation – which also has been enacted in British Columbia – has been considered by the SCC. The court has yet to release its decision.
Winkler notes that in relation to CUPW v. B’nai Brith Canada et. al “what is striking is its two high-profile parties, both of whom participate or are active in the public domain on political matters.”
According to the decision, the union “takes positions on political and human rights issues from time to time and it has for many years supported a boycott of Israeli products because of what the union believes is Israel’s mistreatment of Palestinians in the occupied territories,” which is also known as the Boycott, Divestment and Sanctions Movement.
Following a complaint to B’nai Brith by a Jewish member of CUPW about support for the movement, the organization examined CUPW’s activities in 2018 and discovered the union’s involvement with PPSWU and found postings on the PPSWU Facebook page “which appeared to be pro-Palestinian and which B’nai Brith interprets as implicitly calling for the destruction of Israel,” court heard.
B’nai Brith called on CUPW to comment on the PPSWU Facebook postings, advising it intended to publish a story about CUPW and its association with PPSWU, court was told.
B’nai Brith published the first of two press releases on July 31, 2019, which are the subject of the defamation action.
Winkler says that on the current state of the law, as expressed by the Ontario Court of Appeal, s. 137.1 (4) (b) – the weighing of public interests – “is the heart of the anti-SLAPP legislation.”
Because he says the judge failed to address this issue, Winkler believes the decision is likely to be overturned or sent back.
As to the balancing of interests, he says “it strikes me that the public interest in the expression is very high.”
“At this stage, you don’t get into a discussion of whether the words complained of are true or not,” Winkler says. “There is clearly a high public interest in discussion related to the involvement of CUPW in matters such as this.
“I think on a consideration of the balancing of interests it’s very likely that B’nai Brith would succeed in having the action dismissed,” he says.