Court Submissions

CFE Intervener Factum in the Supreme Court of Canada – This appeal is a significant test of Ontario’s anti-SLAPP legislation, balancing corporate reputation with the right of consumers to share online feedback. Originally the homeowners’ anti-SLAPP motion to dismiss the defamation suit brought by Benchwood Builders (the plaintiff) was granted, but later it was revered by the Ontario Court of Appeal. The crucial “weighing” test under the legislation is that the plaintiff, to avoid having the case dismissed, must show that the harm caused by the expression at issue is “sufficiently serious” to outweigh the public interest in protecting the defendant's expression. The plaintiff must also meet a “merits” test satisfying the court that it was seriously harmed by the expression and that the defendant has “no valid defense.” The merits stage often requires a complex and resource-intensive analysis. The Centre for Free Expression was granted leave to intervene. CFE submits that the motion’s judge can expedite anti-SLAPP cases, once the required public interest test has been met by the defendant in the underlying case, by addressing the “weighing” test first. If it is not found in the plaintiff’s favour, the motions judge can be relieved, or can deal with more cursorily, with the often more complex and resource-intensive merits-based analysis. CFE also submits that corporate plaintiffs alleging defamation must show a link between the impugned expression and pecuniary loss to meet their burden of demonstrative “serious harm.”

CFE Intervener Factum in the Supreme Court of Canada – This appeal concerns the scope of the obligations of meaningful consent and safeguarding according to Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA). CFE submits three points in this intervener factum: (1) evidence of subjective expectations of privacy, rather than those of a reasonable person, has no role to play in determining whether meaningful consent was provided under PIPEDA; (2) users’ reasonable expectations of privacy on digital platforms will generally be high; and (3) meaningful consent to the use or disclosure of personal information on digital platforms requires that the platform clearly inform the user of the specific purposes for which the information may be used or disclosed, prior to such use or disclosure.

CFE Intervener Factum in the Supreme Court of Canada - In this factum, CFE submits that citizens’ access — and particularly, public interest litigants’ access — to judicial review remedies is a fundamental feature of the democratic dialogue in Canada. Absent a robust remedial comparison, judicial review applicants are at risk of being rerouted to inadequate alternative processes, including political processes with which they cannot meaningfully engage.

Joint Intervener Factum of ACTO/ Animal Justice/CCLA/CFE/Democracy Watch/ISAC  – Ontario Court of Appeal. The issue is to update the test for leave to appeal decisions of the Ontario Divisional Court. We argue the test for leave to appeal established by the Ontario Court of Appeal in its 1972 Sault Dock decision should be refreshed to reflect the evolution of administrative, constitutional, and human rights law over the past 50 years, and the role of the Divisional Court in response to those changes. Based on key legal developments in recent decades, we suggest there is a need for the leave test to focus on the criterion of “public importance.” We propose a non-exhaustive list of factors that this Court ought to consider when deciding whether to grant leave to appeal decisions of the Divisional Court.

CFE Intervener Factum in the Ontario Court of Appeal This case concerns the Government of Ontario law, Security from Trespass and Protecting Food Safety Act, 2020, and associated Regulation whose stated purpose is to prevent trespass, protect animal safety, protect biosecurity of the food supply chain, protect those working with animals and prevent the adverse economic effects that these risks can create. The CFE intervention addresses how the Act and Regulation penalize employees who are prospective whistleblowers engaging in expressive activity in pursuit of truth and social discourse. The Act and Regulation also compel employee expression by mandating and controlling the timing of whistleblower disclosure. And although the Regulation purports to provide an exception for whistleblowers, it is so narrow as to be illusory.

CFE Intervener Factum – British Columbia Supreme Court. The issue is whether Vancouver Island University’s request for an injunction should be granted against the encampment on campus. After a review of the legislative context and of Canadian jurisprudence on the applicability of the Charter to specific actions of universities, the factum suggests that the University’s rights as a “property owner” and its statutory powers in the “management of its privately owned land” are not unlimited or absolute; that the University’s statutory power does not necessarily pre-empt or extinguish the Charter freedoms of those using its property for expressive purposes. Finally, the factum submits that, in acting as a singular arbiter for expressive rights on campus, VIU must inform its decisions with a view to the values that underlie Charter rights.