Motivations Irrelevant for Determining the Public Interest
Following the Court’s decisions in Pointes/Platnick, anti-SLAPP motions continue to be brought in defamation actions. These decisions will continue to build and refine test created by the Court, and how it can be applied.
One particular aspect is determining what exactly is in the public interest for the purpose of s. 137.1(4)(b), which is the main focus of analysis after the Court’s decision. A recent Ontario Court of Appeal decision in Sokoloff v. Tru-Path Occupational Therapy Services Ltd. helps expound on this issue.
The action emerged from a dispute between a well-known lawyer in Toronto, and a the President of a rehab facility who received referrals from the lawyer, and would agree to provide services where an insurance company denied coverage, with the agreement that the lawyer would be ultimately responsible for paying. The President stood outside the lawyer’s office, holding a sign that said:
SOKOLOFF LAWYERS USED OUR COMPANY’S REHAB SERVICES TO HELP MANY OF THEIR CLIENTS’ AB CLAIMS BUT WON’T PAY.
OVER $1.3 MILLION OF OUR REHAB COMPANY’S PAYMENT IS BEING SEIZED BY SOKOLOFF LAWYERS.
DEAR SOKOLOFF LAWYERS: YOU HAVE OUR REHAB COMPANY’S NEARLY $1.4 MILLLION DOLLARS. PAY YOUR UNDERTAKINGS NOW!
SOKOLOFF LAWYERS IS TAKING MONEY FROM OUR REHAB COMPANY’S ACCOUNT TO PAY THEIR CLIENT’S TORT DISBURSEMENT. HOW IS THIS LEGAL?
The rehab company claimed that aspects of this expression were a matter of public interest, because if lawyers are not held to their undertaking to protect fees to service providers, members of the public would be deprived rehabilitation services.
The motion judge ruled that this was a contractual dispute between a lawyer and a regulated professional, and did not have characteristics of a matter in the public interest. It could be contrasted, for example, as a fee dispute between a lawyer and a client, which could touch on issues of access to justice and costly legal fees.
Ultimately the harm to the lawyer’s reputation outweighed any potential imperative for the rehab professional to air his grievances publicly, and there was no real public interest in the expression.
The Court of Appeal expanded on this further,
[18] There is necessarily a normative aspect to what is “genuinely” a matter of public interest. As the Supreme Court put it, there is “no single ‘test’” for identifying the public interest; “‘[t]he public has a genuine stake in knowing about many matters’ ranging across a variety of topics”: Pointes (SCC), at para. 27; Grant, at paras. 103, 106. The court described the proper interpretation of whether expression relates to a matter of public interest as both “broad and liberal” and “generous and expansive”: Pointes (SCC), at paras. 24, 30.
[19] But not everything relates to a matter of public interest. For example, it is not enough if expression simply makes reference to something that is of public interest, or to something that arouses the public’s curiosity. Moreover, the court’s instruction of interpretive generosity cannot be read in isolation. The scope for legitimate interpretation of vaguely worded concepts such as “public interest” must be informed by the purpose of the legislation: to safeguard the fundamental value that is public participation in democracy. The burden is on the moving party to establish that its expression relates to a matter of public interest, albeit that this burden is not an onerous one.
The approach required is contextual in nature, but not one where a qualitative assessment of the expression is made. Courts must ask what the expression is about, and what it pertains to. While the public and an interest in the ethical conduct of lawyers, they do not have an interest in every transaction that a lawyer engages in, or every expression touching on the ethical conduct of an individual lawyer.
The Court of Appeal found that the motion judge did not err in their conclusion that the expression did not relate to a matter of public interest, but they analyzed this improperly by making qualitative assessments of the expression in question. Subjective considerations such as why the expression occurred are not relevant,
[24] …The motion judge could properly consider the entire communication and the context in which it was made. But the motivation behind the communication – why the impugned expression occurred – is a subjective consideration that is not relevant to determining the objective nature of that expression. The quality or merits of the expression and the manner in which the expression is conveyed are similarly irrelevant.
[25] Mistakes have sometimes been made in this regard – see Levant, at para. 11;Ontario College of Teachers v. Bouragba, 2019 ONCA 1028, 51 C.P.C. (8th) 280, at paras. 31-33; and Nanda, at para. 37 – so the point bears repeating: Motive, merit, and manner are irrelevant in determining whether expression relates to a matter of public interest under s.137.1(3).
They confirmed the expression at issue was a private commercial dispute. One fo the parties simply happened to be a lawyer. This was insufficient to make it a matter of public interest, and the Court of Appeal distinguished it from the expression around the lawyer in Pointes,
[35] The expression in this case and the context in which it occurred are in no way similar. Mr. Campbell’s expression raised no general concerns about the importance of lawyers respecting their undertakings, nor was it directed to anyone with an interest in the respondents’ conduct. The expression did not relate to a matter of public interest. It was really about the appellants’ commercial dispute with the respondents.
Lawyers often play a very public role, as an extension of their professional responsibilities. This does not mean that they are necessary public figures, or that expression about individual lawyers are necessarily a matter of public interest.
The clarification provided by the Court of Appeal here as to how public interest is to be defined is helpful, especially because cases prior to Pointes/Platnick have applied this in disparate ways.
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