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Blog February 25, 2022

Supreme Court of Canada Takes A Second Look at Anti-SLAPP Legislation

On January 13, 2022, the Supreme Court surprised many observers by agreeing to hear the appeal in Neufeld v Hansmana relatively obscure anti-SLAPP case from British Columbia.  

The decision to hear the Neufeld appeal was particularly unexpected since it comes less than 18 months after the Supreme Court released its landmark decisions in a pair of anti-SLAPP cases from Ontario (1704605 Ontario Ltd v Pointes Protection and Platnick v Bent), which dealt rather comprehensively with all aspects of the anti-SLAPP regime.  (If you are interested, please see my previous post outlining the import and impact of those decisions.)

Given that British Columbia’s anti-SLAPP legislation is nearly identical to its Ontario counterpart, one is left asking a basic if obvious question:  just why did the Supreme Court consider it a matter of national importance to hear the Neufeld appeal so soon after deciding two other major anti-SLAPP cases?

The answer is that Neufeld raises two novel issues that were not addressed in either Pointes Protection or Platnick. Both issues have to do with the final, and often crucial, ‘weighing’ stage of the anti-SLAPP analysis, which examines whether the harm likely to have been or to be suffered by the defendant is serious enough that the public interest in allowing the lawsuit to continue outweighs the public interest in protecting the expression. The Supreme Court of Canada has described this stage as the “crux” or the “core” of the anti-SLAPP analysis, and it is often determinative of the ultimate result on an anti-SLAPP motion.

The first novel issue raised by Neufeld is the requirement that the plaintiff show some causal link between the allegedly defamatory expression and any harm they have suffered, in a situation where many other people – apart from the defendant – have made or repeated similarly defamatory comments about the plaintiff. Particularly in the social media era, where defamatory comments can spread like wildfire across online platforms, this is an important consideration. Can a plaintiff single out and sue a particular defendant if dozens or even hundreds of others have said the same or similar things? Neufeld suggests the answer is “yes”. 

The second, and perhaps more controversial, issue Neufeld considers is how a chilling effect on the expressive activity of a plaintiff plays into the weighing analysis. Normally, a court is concerned with how a lawsuit could potentially chill the speech of a defendant (or other similarly situated members of the public). Courts often rely on this factor as one that augurs in favour of dismissing the lawsuit. In Neufeld, however, the British Columbia Court of Appeal (“BCCA”) turns this consideration on its head by relying on the plaintiff’s speech being chilled in ruling that the defamation lawsuit could proceed. 

Whether and how to weigh any chilling effect on the plaintiff is indeed a consequential issue. It could well tilt the delicate balance struck by anti-SLAPP legislation quite firmly in favour of plaintiffs, at least where the allegedly defamatory expression is made in reaction to the plaintiff’s own controversial public comments. 

The Facts

To understand the outcome in Neufeld, one must start with the facts giving rise to the litigation.

N is a public school trustee. In a Facebook post, he made negative comments about the way schools were implementing a program designed to teach children about sexual orientation and gender identity. Among other things, he wrote as follows:  “At the risk of being labeled a bigoted homophobe, I have to say that I support traditional family values and I agree with the College of pediatricians that allowing little children [to] choose to change gender is nothing short of child abuse. But now the BC Ministry of Education has embraced the LGBTQ lobby and is forcing this biologically absurd theory on children in our schools…”

H, who was then-president of the BC Teachers’ Federation, was interviewed by the media about N’s comments. H made several highly critical comments about N, including statements that N has “tiptoed quite far into hate speech”; that N was “creating a school environment… that is discriminatory and hateful”, and that N was “continuing to spread hate about the LGBTQ people”.

N brought a claim in defamation against H, arguing that H’s comments to the media communicated the defamatory meaning that N promoted hatred, engaged in hate speech, made it unsafe for students in the school system and presents a safety risk to students (among other things).  

H responded by bringing an anti-SLAPP motion to have the case dismissed.

Before the British Columbia Supreme Court, H was successful. With respect to the first part of the anti-SLAPP test, the parties accepted (and the court agreed) that H’s expression related to a matter of public interest. The next part of the anti-SLAPP test required N to establish that his claim has “substantial merit” and H had “no valid defences”. The court concluded that H had a valid fair comment defence, meaning that N had failed to meet the requirements to avoid his lawsuit being dismissed. 

While not strictly necessary to do so, the court went on to consider the final part of the anti-SLAPP test: the weighing of the public interest in protecting H’s expressions against the public interest in allowing N’s lawsuit to proceed. Here, the court sided firmly with H, relying on the fact that N had “submitted almost no evidence of damages suffered”, as well as the fact that several other entities and individuals also had a negative reaction to N’s comments. 

N appealed to the BCCA.

The BCCA Decision

The BCCA reversed the lower court’s conclusion on the fair comment issue (for reasons that are of less interest to us, given the focus of this post). 

Since the BCCA found that N met his onus to show there was “no valid defence” in respect of fair comment, the appeal would now turn on the outcome of the weighing stage – the last step and so-called “crux” of the anti-SLAPP analysis. Again, at this stage, the court weighs the interests in favour of allowing the case to continue against the public interest in dismissing the litigation.

Normally, the main interest in favour of allowing the case to continue is giving the plaintiff a chance to vindicate their reputation and obtain a remedy for any harm they have suffered as a result of the alleged defamation. The BCCA found that the lower court erred in discounting N’s harm due to his failure to provide evidence. The BCCA fairly noted that plaintiffs in a defamation case, like N, do not need to prove they suffered actual loss or injury. General damages for loss of reputation, injury to feelings, embarrassment and anxiety are presumed. 

That being said, the magnitude of harm is relevant – indeed, often key – in the balancing analysis and will depend on the circumstances of the case. In assessing the magnitude here, the BCCA discounted the fact that several other outlets had made similar comments about N in response to N’s Facebook post:  “Although it may well be found that [H] was not the sole cause of any harm to [N’s] reputation, it must be remembered that ‘no definitive determination of harm or causation is required’ at this stage of the inquiry. Nor is causation an ‘all-or-nothing proposition’…”[1]

Simply put, the BCCA thought it was of little moment that many others, apart from H, had made similar disparaging comments about N.

The BCCA also found that the court below erred when assessing the public interest in allowing N’s lawsuit to continue because it failed to account for the chilling effect that dismissing the lawsuit would have. In particular, the BCCA faulted the lower court for failing to consider “the potential chilling effect on future expression by others who might wish to engage in debates on this or other highly charged matters of public interest – that is, the risk that people would withdraw or not engage in public debate for fear of being inveighed with negative labels and accusations of hate speech with no opportunity to protect their reputation.”[2] The lower court should have considered “the collateral effect that preventing [N] from defending himself from such serious accusations could have on other individual’s willingness to express themselves on issues of public interest in the future.”[3]

To be sure, courts routinely rely on the chilling effect as part of the weighing analysis in anti-SLAPP motions. But they invariably do so by taking into account the concern that litigation (or the threat of litigation) brought by the plaintiff would chill the expression of the defendant (or those similarly situated), thus contributing to the public interest of having the case dismissed. In Neufeld, the BCCA does exactly the opposite, relying on the chilling effect on those in the plaintiff’s position to support the conclusion that the case should continue.

Key Issues Before the Supreme Court

Since their relatively recent introduction, courts have struggled with the interpretation and application of anti-SLAPP laws. This is not necessarily surprising given the core tension at the heart of anti-SLAPP regime. On one hand, courts are naturally inclined towards allowing plaintiffs to have their ultimate day in court, rather than dismissing them on a preliminary motion where a full assessment of the merits isn’t possible. On the other hand, for anti-SLAPP laws to serve their purpose of actually encouraging and protecting expression on matters of public interest, they need to be a reasonably robust screening tool. 

In Pointes and Platnick, the Supreme Court struck a delicate balance between these competing interests. It did so by, among other things, setting a relatively lenient threshold for plaintiffs to meet in terms of establishing the merits of their case, and by focusing mainly on the final weighing stage of the analysis. 

The two novel issues the Supreme Court will confront in Neufeld could have serious implications for the balance struck in Pointes and Platnick.

When it comes to the impact of “mob” defamation on a claim against a single defendant, the BCCA’s refusal to even consider the impact of other similarly defamatory comments (apart from those made by H) seems difficult to defend. Surely the extent to which others may have contributed to N’s reputational harm is at least relevant at the balancing stage. How much weight it should carry in the final analysis, however, is a more difficult question. There is a compelling argument that plaintiffs should not be lightly deprived of their day in court against a single defendant simply because they have been similarly defamed by a web of other potential defendants. But, at least in my view, there is a similarly compelling argument that the weight of broader reputational harm caused by a mob of defamers should not be laid at the feet of a single defendant. 

The central question raised by Neufeld, and no doubt the focus of the appeal before the Supreme Court, will be on the role of the chilling effect in the weighing analysis. In Pointes, the Supreme Court cited a broad range of potential factors that could influence the outcome of that analysis, including the “chilling effect” on other expression “by a party or by others”.[4] While the Court did not expressly limit this consideration to the chilling effect on defendants or others in a similar position as the defendants, that is how this direction has been applied in practice  – in other words, as a reason why a case should be dismissed – until Neufeld.

If the Supreme Court accepts the logic in Neufeld, then this could prove to be a powerful new argument in favour of allowing defamation cases to continue – at least in certain circumstances, such as where allegedly defamatory remarks were made in response to a plaintiff’s own heated public rhetoric on a controversial issue. In this way, the chilling effect to analysis in Neufeld risks significantly weakening anti-SLAPP laws. 

My own view is that rather than tip the scales in favour of the plaintiff, the facts in a case like Neufeld call for courts to approach any claims of damage or harm by the plaintiff (chilling effect or otherwise) with a healthy degree of skepticism. When a public figure engages in controversial and politically charged commentary in a public forum, they ought to expect a certain degree of pointed rhetoric in response from those holding opposing views. To be clear, this doesn’t amount to a blank cheque to defame anyone who articulates controversial views. But it does mean that where a plaintiff who holds public office chooses to loudly enter the fray on a politically or emotionally charged topic, the extent of any “harm” or “chill” needs to take into account an understanding and expectation that responding discourse and opinions may be harsh – vitriolic, even – as it arguably was in Neufeld.

There is some recent appellate support for this very different perspective on ‘reactionary’ expression. In Levant v DeMelle, the Court of Appeal for Ontario upheld a lower court decision granting an anti-SLAPP motion and dismissing a defamation action brought by Ezra Levant and the Rebel. The defendants called Mr. Levant, among other things, a “neo-Nazi sympathizer”. While the Court of Appeal recognized that this characterization is “serious”, it also discounted the magnitude of reputational harm given the plaintiffs’ own public engagement on controversial social and political issues:

When a person injects themselves into public debate over a contentious topic, they must expect that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal, by those who take an opposite view… The evidence demonstrates that the appellants quite readily inject themselves into the public debate on many of these types of issues. Indeed, there is evidence that they consider that to be part of the rationale for their existence. The appellants should not be surprised when they are then met with a response – even a very forceful response. While such responses do not justify crossing the line into defamatory speech, they are a factor to consider in assessing the level of damages that the defamatory aspect of the response may create.[5]

The approach in Levant is difficult to reconcile with the approach in Neufeld. The two cases offer two very different perspectives on how to assess the impact of allegedly defamatory expression made in reaction to controversial public statements by plaintiffs – with two very different consequences on the degree of protection that will be afforded to such reactionary expression. One way or another, the Neufeld appeal will afford the Supreme Court an important chance to shed light on this key question.

[1] Neufeld (BCCA) at para 59

[2] Neufeld (BCCA) at para 65

[3] Neufeld (BCCA) at para 68

[4] Pointes at para 80.

[5] DeMelle at para 70.