Defamation cases, and the anti-SLAPP provisions under the Libel and Slander Act, continue to be interpreted in new and novel contexts.
In Nanda v. McEwan, the Divisional Court heard an appeal of a Small Claims Court motion in a defamation action, involving statements made during the election campaign for President of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”). The statements were made in print, and in two invitation-only WhatsApp groups, and included the following statements about the plaintiff:
- he was a racist, a bigot, a sexist, a bully and a thief;
- he was corrupt;
- he had “rigged” a union election;
- he had stolen from membership and had abused his position of trust;
- he had used union funds to buy votes; and
- he had engaged in a criminal conspiracy.
The motion by the defendants sought to dismiss the claim under Rule 12.02 on the following bases:
a) The parties were required to arbitrate the dispute under the CUPW Constitution (the “Constitution”) before commencing a court action;
b) The plaintiff failed to give notice under the Act prior to commencing the Action; and
c) An anti-SLAPP dismissal based on s. 137.1 of the Courts of Justice Act.
The Deputy Judge concluded arbitration was not required, concluded based on Jansen-Ortho Inc. v. Amgen Canada Inc. that notice was required but not provided, and stayed the action without addressing the anti-SLAPP motion.
The Divisional Court reviewed the union’s constitution, which stated,
Article 8.01: Where two or more members wish to resolve conflict between them, they will have access to alternative conflict resolution processes.
Article 8.02: Penalties may be imposed on a member or officer of the Union or Local if he/she committed any of the following offences:
Without limiting the general character of the aforesaid offences, the following action are among others regarded as offences:
(5): Having published or circulated, either verbally or otherwise, false reports or misrepresentation concerning any member or officer of the Union in respect of any matter connected with the affairs of the Union or Local.
Article 8.39: A member, may not undertake legal procedures against …. its members … without having previously exhausted the possibilities afforded him/her under the present Constitution.
The Deputy Judge found that this language was not mandatory, and the Divisional Court did not find this to be a reviewable error. The purpose of these provisions were intended to assist members from avoiding disciplinary proceedings, not general arbitration, and was permissive in nature.
The Divisional Court referred to the John v. Ballingall (leave to appeal refused), where I was co-counsel, but distinguished it on the basis that it was an online newspaper. They concluded that the Deputy Judge’s reliance on Janssen-Ortho Inc. to include a broadcast over the Internet, as there were no radio stations or evaluation of whether it was from a station in Ontario. There was inadequate information to conclude whether the provisions of the Act applied here.
Because the appeal was allowed, counsel agreed to make submissions on the anti-SLAPP portion of the motion. The Divisional Court released a separate decision dealing with this relief. Relying on Veneruzzo v. Storey, the court indicated that s. 137.1(3) of the Courts of Justice Act required that the motion address an expression that relate to the public interest, prior to going to the merit analysis under 137.1(4).
The Divisional Court was therefore dealing with a unique and novel issue, “Can expressions between union members regarding a candidate during a local union election be considered a matter of public interest?”
Public interest in Grant v. Torstar Corp. was defined as inviting public attention, which the public had some substantial concern, or a function of the prominence of the person referred to in the communication. Further context was gained from1704604 Ontario Ltd. v. Pointes Protection Association, which emphasized the context of the expression,
 A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest: Grant v. Torstar Corp., at paras. 102, 105. Public people are entitled to private lives. Expressions that relate to private matters are not converted into matters relating to the public interest merely because those expressions concern individuals in whom the public have an interest or involve topics that may titillate and entertain.
 An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression: Grant v. Torstar Corp., at paras. 102 and 105.
 Public interest does not turn on the size of the audience. Especially in today’s world, communications on private matters can find very large audiences quickly. On the other hand, statements between two people can relate to matters that have a strong public interest component.
[emphasis added by the court]
The plaintiff claimed that the election of a local union officer was a private matter, which the Divisional Court agreed with,
 The election of an official to a local union is NOT a matter of public interest caught by s. 137.1 of the Act. The expression may be of interest to the approximately 200 members of the local union, but NOT to the public generally or a segment of the public. In my view, the elections of the local union is a private matter. This is not similar to the election of a public official such as a councillor. The public interest in such elections is obvious to the persons entitled to vote and others who may be effected by the public figure, if elected. See Armstrong v. Corus Entertainment Inc., 2018 ONCA 689. The same could be said for appointments of persons to public positions. There are many other not “public” election/appointments that engage the public interest such as environmental, planning, the arts and other categories where the Defendant could show that a general or specific segment of the public has an interest in the subject matter and that freedom of expression on that subject matter should be encouraged.
 In this case, focusing on elections, there are many elections which take place in private institutions such as church elections, management/director elections in companies, elections in community and charitable organizations, businesses such as law firm management and so on. Such elections are not matters of public interest. These elections involve highly local, limited and private interests, being those within the organizations. I see no distinction between such elections and elections in local unions.
 The suggestion that it is important to uphold freedom of expression in “democratic elections” misses the point – these private organizations set the rules who can vote, how they can vote and so on. That is for the private organization to decide. The results impact on the private organization and not the public.
Consequently, the anti-SLAPP motion was dismissed.
The matter was further appealed to the Court of Appeal, who recently released their decision, concluding that the matter could indeed involve the public interest,
 In my view, expressions concerning racism, sexism, corruption, abuse of union funds, and misconduct by a candidate for President of the Toronto Local of a Canadian public sector union relate to a matter of public interest. In the words of McLachlin C.J.C. in Torstar, at para. 102, “[i]t is enough that some segment of the community would have a genuine interest in receiving information on the subject”: see also Torstar, at para. 105. Members of the Toronto Local, beyond the recipients of the posters and WhatsApp messages, would clearly have a genuine interest in the expressions in the context of an election campaign. But the scope of public interest would extend even further, to the broader community served by members of CUPW and the public sector.
 In summary, the motion judge erred in this case by focusing on the nature of the expressions and failing to consider their context, in defining the group interested in the expressions too narrowly, and in treating the “private” context as determinative. In my view, allegations of racism, sexism, corruption, and misconduct in the context of the election of the President of a major local of an important public sector union is a matter of public interest. The appellants’ motion passed the public interest threshold. This requires this court to conduct the additional analysis under s. 137.1(4).
The Court of Appeal concurred that the Pointes decision was the guiding authority, but disagreed that it should be applied in this manner. Instead of focusing on the manner of expression and the motives of the defendants, or the size of the audience, rather than considering what the expression was about.
The two decisions released with Pointes, in Armstrong v. Corus Entertainment Inc. and Able Translations Ltd. v. Express International Translations Inc., both dealt with expressions made in the context of elections. Fitness for office during an ongoing election campaign qualifies as expression relating to a matter of public interest.
The Court of Appeal also relied on LIUNA Local 183 v. Castellan, where an anti-SLAPP motion was dismissed and summary judgement granted, where a former member of the union made disparaging statements about the union and their counsel online. Even where the posts contained derogatory, malicious, and false statements, they could still qualify as relating to a matter of public interest, which was explained as follows by the motion’s judge,
 …While the posts may be understood as the public airing of very personal grievances, they may also be construed as addressing the Union’s governance and the suitability of some of the plaintiffs to act as union representatives. The fact that [the defendant] is no longer a member of that union does not bring his comments regarding the Union outside the scope of s. 137.1. I accept [the defendant]’s submission that this characterization of the expression has significance for members of Local 183 as well as the community at large. This is sufficient to ground a finding that [the defendant] has met his onus under s. 137.1(3).
Despite meeting the public interest, the motion judge in LIUNA dismissed the anti-SLAPP motion, and granted summary judgment and injunctive relief.
The Court of Appeal continued in Nanda to a merits analysis under 137.1(4), concluding it met the threshold for reasonable grounds of substantial merit, and that there was a public interest in permitting the action to proceed.
The Court of Appeal also rejected the defendant’s submissions around the protections around political speech, focusing on the motion judge’s comments about the allegedly defamatory statements:
These types of Statements do not encourage debate on public matters but are allegedly defamatory statements made for the sole purpose of attacking and maligning the character of an individual without a meaningful connection with the alleged public interest or to encourage debate on matters of public interest.
Put another way, the statements by the Defendants in this case, appear to be vulgar and vitriolic statements meant to denigrate and defame the character of the Plaintiff to sway other voters not to vote for the Plaintiff. These statements were not intended to provide information or the exchange of opinion, assert facts into the public debate (even if it were a matter of public interest) or to engage in a discussion of a person’s qualifications for office. A key example is the statement that the Plaintiff engaged in criminal conduct.
The Court of Appeal interpreted this as obiter int he context of applying the relevant balancing exercise under s. 137.1(4)(b), where the quality of expression and motivation of the speaker are relevant factors for measuring the public interest necessary to protect the expression.
Although this decision may appear to open up these types of defamatory statements to anti-SLAPP motions, this would only apply to the threshold test under s. 137.1(3), establishing that these expressions are related to the public interest. The merits-based analysis, including the public interest hurdle in s. 137.1(4), are still unlikely to allow these motions to succeed, where there is still substantial merit, and the harm suffered is sufficiently serious.