News August 30, 2018

Ontario Court of Appeal decisions a victory for free expression

Today, the Ontario Court of Appeal handed down six decisions that uphold and strengthen Ontario’s 2015 anti-SLAPP lawdesigned to ensure that defamation suits are not misused as a tool to silence discussion on matters in the public interest.

SLAPPs (strategic lawsuits against public participation) are a legal device used by those who are the target of criticism, not to vindicate any genuine wrong done to them, but to silence, intimidate, and punish those who have spoken out. As Justice Doherty states in one of today’s decisions, “Litigation can be a potent weapon in the hands of the rich and powerful. The financial and personal costs associated with defending a lawsuit, particularly one brought by a deep-pocketed plaintiff determined to maximize the costs incurred in defending the litigation, can deter even the most committed and outspoken critic.”

To prevent this, Ontario’s anti-SLAPP law allows the defendants in such a lawsuit to bring a motion to dismiss the lawsuit. If the defendant the can demonstrate that the litigation arises out of the defendant's expression on a matter relating to the public interest, the onus shifts to the plaintiff to demonstrate i) that there are reasonable grounds to believe its proceeding has substantial merit and ii) the defendant has no valid defense.

Finally, the legislation requires the party that launched the original lawsuit to satisfy the court that the harm it is likely to, or has, suffered as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the lawsuit to continue outweighs the public interest in protecting the defendant’s free expression. The motion to dismiss the lawsuit is granted unless party that launched the original lawsuit can meet these very high tests.

The Ontario legislation has an additional, and unique, provision. It allows the judge hearing the defendant’s motion to award damages to the defendant if the defendant is successful in having the proceedings dismissed and satisfies the motion judge that the plaintiff brought the original defamation suit "in bad faith or for an improper purpose".

“The Ontario Anti-SLAPP law, upheld and strengthened by the Ontario Court of Appeal today, is a remarkable protection for free expression in matters of public interest,” said James L. Turk, Director of the Centre for Free Expression. “It takes significant steps to remove fear of speaking out about the positions and actions of powerful interests and individuals in matters of public interest. It strengthens our democracy in a significant manner.”

Why I will no longer post on Elon Musk’s X

The Guardian’s decision earlier this week to stop posting on X finally prompted me to take the same step, one I have been contemplating for some time. Whereas the decision of the Guardian, which has 27-million followers, is consequential, my decision (with my 1,018 followers) is not. Still, for me, it is important to dissociate myself from what Musk has made of X.

A concept of peaceful assembly under s.2(c) of the Charter

Courtesy of the Rouleau Commission I developed a late-onset interest in freedom of peaceful assembly (FPA) and s.2(c) of the Charter. Since then it has been an ongoing concern to me that in more than forty years s.2(c) has not received an authoritative interpretation, much less been considered or discussed in any depth by the Supreme Court of Canada.

What if Charter Values Mattered?

Universities have property rights. Are they entitled, as a consequence, to exclude others at will? Are property rights, especially those exercised by public institutions like universities, different from homeowners or shop owners?