Update: CBC has been awarded $500,000 in costs. That is a huge deal for free expression. We may very well see an end to lawsuits being fled to shut down media inquiry, and this kind of cost award deters corporations from trying to use the courts to muzzle environmentalists and anyone else who criticizes them.
The CBC has won an important SLAPP motion against Subway Restaurants.
SLAPPS are “strategic lawsuits against public participation” and have been used for years to scare people into silence. They are commonly used against environmentalists, political activists, journalists — especially small media — and bloggers.
Ontario’s SLAPP law has brutal consequences for people who sue simply to shut others up.
While the majority of states in the U.S. have laws to prevent vexatious defamation suits filed to intimidate critics into silence, Canadian jurisdictions have been very slow to follow their example.
In the fall of 2015, the Ontario legislature passed The Protection of Public Participation Act. The law expands on the protections of Rule 2.1.01 by creating new protections for individuals from defamation lawsuits when they are quoted on public issues by journalists, including online reporters and citizen bloggers.
The protection extends to any expression on a public issue, so the material does not have to be published in any kind of media, nor does the lawsuit need to be about defamation. The key Ontario case on this law is, in fact, a contract dispute, and the expression involved was testimony at an Ontario Municipal Board hearing.
The law has a three-part test:
- Does the lawsuit seek to punish expression about a matter of public interest?
- Does the case of the plaintiff have substantial merit?
- Is the harm suffered, or likely to be suffered, by the plaintiff serious enough to justify stopping public expression?
The law has severe cost consequences for initiators of SLAPP suits. Should a judge find that a lawsuit is an attempt to stifle legitimate public debate, the plaintiff of the suit must pay all of the costs of the defendant, for both the original lawsuit and the SLAPP motion. However, a defendant who loses a SLAPP motion is not required to pay the costs of the motion to the plaintiff of the original lawsuit. (Some judges seem to ignore this aspect of the law, and the Court of Appeal hasn’t weighed in on the costs issue yet.)
People who are sued, and who win a SLAPP motion, can also be awarded damages,
I recently won a case where the people who were suing had their case thrown and had to pay the entire legal bill of the people they sued, along with $10,000 damages. Plus their own legal bills. (Ardiel and McKean v Seguin, Riverside Press et al, ONSC 2019). You can read the decision here: Reasons for Judgment (Justice Fowler)_March 28, 2019
In the latest big case, Subway was suing the CBC for reporting on claims made by a Trent University research team that Subway used substandard chicken in its sandwiches
The Superior Court of Justice followed the Ontario SLAPP law and the Ontario Court of Appeal’s reasoning in Pointes Protection. (1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685) , The judge found that CBC’s reporting was on a matter of public interest, and that the news corporation had a prima facia defence. That was basically all that was needed to win this case.
Subway wanted $210 million from the CBC and Trent University.
Trent University, however, is not off the hook. It did not join in the SLAPP motion, and will now have to settle or soldier on alone.
The Ontario Court of Appeal decision in Pointes Protection, which courts have been using in SLAPP motions as the template in expression cases for the past three years, has been appealed. The Supreme Court of Canada heard the case, along with two others, earlier this month. As is usual for the Supreme Court, judgment has been reserved.
Meanwhile, British Columbia, which lost its SLAPP protection under the previous Liberal provincial government, now, again, has a law to protect free expression and deter lawsuits that are filed simply to shut people up. British Columbia’s Protection of Public Participation Act (2001) was passed by an NDP government that was, just a few months later, defeated by the B.C. Liberals, who immediately repealed it. Quebec passed anti-SLAPP legislation in 2009 allowing for summary dismissal of lawsuits filed for improper purposes. This law is similar to Rule 2.1.01 of the Ontario Rules of Civil Procedure, but attempts to limit free expression are expressly listed in the Civil Code as one of the reasons for summary judgement.