BDS and Terrorism Sympathies as Fair Comment

When the Ontario’s Libel and Slander Act was amended in 2015 under the Protection of Public Participation Act, the explicit purpose of implementing the 2010 recommendations by the Anti-SLAPP Advisory Panel. Since that time, the interpretation of these provisions continue to evolve.

This past week, the Ontario Court of Appeal released its decision in Lascaris v. B’nai Brith Canada, overturning the decision of the Superior Court of Justice that had granted the anti-SLAPP motion under s. 137.1(3) of the Courts of Justice Act to dismiss the action.

Justice Rady of the Superior Court outlined the public interest purpose of the anti-SLAPP provisions, but also relied extensively on the 2015 decision of Baglow v. Smith, which I’ve criticized in the past as providing a far too broad license to those online to engage in “rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar” speech that is indeed defamatory, but cloaked under the guise of political debate.

The facts in Lascaris are equally contentious, but also capable of some differentiation from Baglow. The plaintiff was a political activist, but was also someone who ran unsuccessfully for political office. In his political activities, he endorsed Boycott, Divestment and Sanctions (“BDS”) against Israel. The defendant is a community organization that characterized some of these activities as anti-Semitic, and depicted the plaintiff as having terrorist sympathies.

The plaintiff claimed that the depictions of him by the defendant was defamatory, especially because the communications occurred when he was no longer engaging in this role politically. He claimed they damaged his reputation, as a reasonable person would conclude that the coverage falsely characterized him as a supporter of terrorists.

The defendant denied that the content was libelous, false, or defamatory, but also plead justification and qualified privilege. As a result, they brought the anti-SLAPP motion to have the action dismissed.

Justice Rady of the Ontario Superior Court of Justice concluded that there was no doubt that the defendant’s expression related to matters of public interest, under s. 137.1(3),

[39] There can be no doubt that the subject matter of the article is one that invites public attention; affects the welfare of citizens; and attracts considerable controversy, which are all outlined in the definition of public interest in Grant, supra. Canadians have a public interest in receiving information on the conflict in the Middle East and on individuals involved with government parties and their stance on the issue. The ongoing debate regarding the conflict between Israel and Palestine and Canada’s involvement attracts significant public attention and controversy. Additionally, as the evidence on the motion demonstrates and similar to the circumstances of Dr. Baglow in Baglow, supra, the plaintiff himself publishes in this particular area, which clearly shows the public interest in the subject matter.

The plaintiff resisted this characterization, as he claimed that the publications were at their core an attack on his character, not on matters of public interest.

Justice Rady also concluded that under s. 137.1(4)(a)(ii) that the plaintiff was unable to prove that the defendant had no valid defence in the proceedings, focusing specifically on the defence of fair comment, as the comment was arguably recognizable as opinion, and it was arguable that support for certain individuals could constitute support for terrorists. The reasonableness of the opinion was not in issue, and she did not find any motivation by malice.

The Ontario Court of Appeal largely overturned this decision on the basis of the court’s recent interpretation of s. 137.1 in 1704604 Ontario Ltd. v. Pointes Protection Association, which was released after the anti-SLAPP motion in Lascaris. The court in Pointes clarified that s. 137.1 is intended as a screening device, and not as a surrogate for summary judgment,

[73] Turning to the specific language of ss. 137.1(4)(a)(i) and (ii), the interpretation must begin by recognizing the purpose of s. 137.1. It provides a judicial screening or triage device designed to eliminate certain claims at an early stage of the litigation process. Sections 137.1(4)(a) and (b) identify the criteria to be used in that screening process. Section 137.1 does not provide an alternate means by which the merits of a claim can be tried, and it is not a form of summary judgment intended to allow defendants to obtain a quick and favourable resolution of the merits of allegations involving expressions on matters of public interest. Instead, the provision aims to remove from the litigation stream at an early stage those cases, which under the criteria set out in the section, should not proceed to trial for a determination on the merits.

…

[78] Motion judges must be careful that s. 137.1 motions do not slide into de facto summary judgment motions. If the motion record raises serious questions about the credibility of affiants and the inferences to be drawn from competing primary facts, the motion judge must avoid taking a “deep dive” into the ultimate merits of the claim under the guise of the much more limited merits analysis required by s. 137.1(4)(a). If it becomes apparent to the motion judge that a proper merits analysis would go beyond what could properly be undertaken within the confines of a s. 137.1 motion, I think the motion judge should advise the parties that a motion for summary judgment would provide a more suitable vehicle for an expeditious and early resolution of the claim.

The court in Pointes explicitly noted in footnote that the Advisory Panel was completely silent on the enhanced summary judgement rule, and likely did not foresee the developments of Rule 20 motions after Hryniak v. Mauldin. The court also noted that expression relating to a matter of public interest may still be defamatory, false and malicious,

[55] The phrase “public interest” in s. 137.1(3) is not qualified in any way. It does not require that the expression actually furthers the public interest. A qualitative assessment of the expression’s impact on the issue to which it is directed is not part of the s. 137.1(3) inquiry. Nothing in the section justifies any distinction among expressions based on the quality, merits, or manner of the expression. An expression that relates to a matter of public interest remains so if the language used is intemperate or even harmful to the public interest. For example, a statement relating to a matter of public interest that is demonstrably false is nonetheless an expression relating to a matter of public interest: see Anti-SLAPP Advisory Panel, at paras. 28-31.

…

[65] In summary, the concept of “public interest” as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3).

[66] When deciding whether an expression relates to a matter of “public interest”, the motion judge will apply the legal principles from Grant v. Torstar Corp. to the relevant circumstances of the case as determined by the motion judge. The application of a legal standard to a set of facts raises a question of mixed fact and law. Absent the identification of an extricable error of law or a palpable and overriding factual error, an appellate court will defer to the motion judge’s assessment: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, at paras. 33-35; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (CanLII), [2016] 2 S.C.R. 23, per Wagner J., as he then was, at paras. 35-36, and per Cromwell J. (concurring), at paras. 100-101; Benhaim v. St-Germain, 2016 SCC 48 (CanLII), [2016] 2 S.C.R. 352, at paras. 36-39.

This interpretation was also subsequently affirmed by the Court of Appeal in Platnick v. Bent which was also referred to by the Court of Appeal to highlight the lack of any of the indicia of a SLAPP lawsuit:

• [99] The indicia of a SLAPP suit include:

  • a history of the plaintiff using litigation or the threat of litigation to silence critics;
  • a financial or power imbalance that strongly favours the plaintiff;
  • a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and
  • minimal or nominal damages suffered by the plaintiff.

If anything, the Court of Appeal suggested that any financial or power imbalances favoured the defendant, as a community organization with significant resources as compared to the plaintiff.

The appellate review of Lascaris in applying the legal principles from Grant also made note that the plaintiff is a lawyer, and a lawyer’s reputation is central to their ability to carry on their profession (a point I made previously in Awan v. Levant),

[40] In my view, this balance clearly favours the appellant. I say that because, if the appellant’s action proceeds and if the appellant is ultimately successful, the damages to which the appellant would be entitled could be significant. Accusing any person of supporting terrorists is about as serious and damaging an allegation as can be made in these times.

…

[43] The fact that the appellant is no longer engaged in private practice does not mean that his reputation is still not of consequence. The appellant continues to represent clients on a pro bono basis. His reputation will mean as much to those clients as it would to any other client, especially given the nature of the clients to whom he devotes his services.

The Court of Appeal was careful to state that the defendants were still entitled to their views, but that fair disagreements over policies and principles still required responsible discourse without the need for personal attacks.

[44] …It remains open to the respondent to express its views on issues that concern it, such as the BDS Resolution and broader BDS debate, for example, without engaging in speech that is arguably defamatory.

This decision will help restore some stability to the case law on online defamation, which has increasingly seen a propensity towards vitriol. Even when engaging in controversial subjects such as BDS, the conflict in the Middle East, and terrorist sympathies, those engaging in such discourse should refrain from imputing political positions and views on to the character of the individuals themselves. This is particularly true given the treatment of the common law of the reputation of lawyers, irrespective of practicing status.

The use of anti-SLAPP motions, which have themselves become strategically used by defendants in a more powerful position, will hopefully be granted more sparingly. As the Court of Appeal also noted recently in Fortress Real Developments Inc. v. Rabidoux, section 137.1(3) does not restrict a plaintiff’s right to bring an action for defamation if the expression relates to a matter of public interest. It only opens the door to the two-pronged inquiry required under s. 137.1(4), which still allows a matter to proceed where there is substantial merit.