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.