The Ottawa protests and the federal government’s invocation of the Emergencies Act during the pandemic have given rise to litigation on several fronts. Recently, the Superior Court of Justice considered an anti-SLAPP motion brought by defendants in such a lawsuit. This follows an earlier anti-SLAPP motion in the context of the Ottawa protests in Li et al. v. Barber et al.
In Cornell v. Trudeau, the plaintiffs claimed approximately $44 million against many defendants, including government actors and agencies and the Canadian Anti-Hate Network (“CAHN”). One of the defendants, Bernie Farber, was the founding Chair Emeritus of CAHN. Among other things, the claim alleged that CAHN and Farber had committed the torts of defamation and civil conspiracy. Specifically, it alleged that they had provided false information to some of the other defendants and media organizations and that this had been “designed to harm the plaintiffs.” Further, the claim alleged that false or “highly exaggerated information” had been provided to some of the defendants “in support of the invocation of the Emergencies Act” and the enactment of certain regulations. The claim also alleged that the defendants had worked together to share information, “disseminated misinformation,” and “froze or otherwise searched and seized the financial services, assets, and private property of the Plaintiffs in an unlawful manner.”
The anti-SLAPP motion was brought by CAHN and Farber pursuant to section 137.1 of the Courts of Justice Act.
The Court began by revisiting the purpose of ant-SLAPP motions. Specifically, it noted that section 137.1 of the Courts of Justice Act was intended to provide a remedy concerning lawsuits that were brought to deter a party from participating in public affairs. The remedy is intended to “weed out strategic or abusive claims at an early stage.”
Under section 137.1, the moving party (in this case, CAHR and Farber) has the onus of showing that the proceeding “arises from an expression relating to a matter of public interest.” If that onus is met, the burden shifts to the respondents to satisfy the court that there are grounds to believe the proceeding has “substantial merit” and that the moving party has “no valid defence” to the proceeding. The respondents must also establish that the harm likely to be or have been suffered by them due to the moving party’s expression “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.” The proceeding will be dismissed if the respondents cannot meet this onus.
The Court thus began its analysis by focusing on the threshold question of whether an expression existed, whether it related to a matter of public interest, and whether the proceeding in question arose from that expression.
In reviewing this aspect of the legal test, the Court noted that “public interest” should be given a “broad and liberal interpretation.” As the Court observed, the question to be asked is whether “some segment of the community would have a genuine interest in receiving information on the subject.” The subject in question must be something in which the public has “some substantial concern” rather than mere curiosity.
The Court referenced the earlier case of Li, in which the Superior Court of Justice found that the Ottawa protests were expressions of matters of public interest. In Cornell, the Court concluded that if the Ottawa protests are “expressions on matters of public interest, it follows that expressions that relate to those protests, including individuals who participated in them, are also matters of public interest.”
One of the arguments raised by the CAHN defendants was that the pleading in the claim failed to include particulars of the alleged defamatory statements. In this regard, the plaintiffs argued that the anti-SLAPP motion was brought prematurely and that the CAHN defendants should have sought particulars or some other remedy instead. They argued that the CAHN defendants failed to identify the “impugned statements,” so it could not be concluded that the proceedings arose from those statements and were in the public interest. However, the Court observed that the plaintiffs could not rely on their own failure to plead sufficient particulars to support their argument against the anti-SLAPP motion. Accepting such an argument would allow the plaintiffs to circumvent section 137.1(6), which prohibits amendments to a claim to avoid a dismissal under section 137.1.
The burden then switched to the plaintiffs to show their claim had substantial merit. As the Court noted, this required the plaintiffs to show a “real prospect of success” with their claim.
The Court reviewed the elements that must be proven by a plaintiff to establish defamation and noted that, in cases where a plaintiff alleges they were harmed as a member of a group, such plaintiff would only have a valid claim if the allegedly defamatory words “singled out” that individual. In other words, “individuals in a group must be able to show that the words were about them in particular.” Because of the “unparticularized expressions” in the issue, the Court concluded that a “group defamation” claim could not be established in this case.
Further, the Court indicated it was not satisfied there were grounds to believe the CAHN defendants had no valid defence to the defamation claim. Indeed, those defendants had raised a variety of defences, including section 6 of the Libel and Slander Act (which requires that a claim for libel be commenced within three months after it has come to the plaintiffs’ knowledge) and a limitation period defence. The Court found thus that the plaintiffs failed to meet the burden of showing the defences would not apply.
The Court also found that the claim for civil conspiracy lacked substantial merit. It noted that the tort requires that the alleged conspirators act in concert, whereas the pleading alleged that the defendants “ultimately assisted one another,” which is insufficient. Further, a pleading must set out the specific acts of each co-conspirator. The Court found that here, however, the conspiracy claim was nothing more than “bald assertions and lumps all the defendants together.”
The Court, therefore, found no valid claim against the CAHN defendants and granted their motion.
Anti-SLAPP (Strategic Lawsuits Against Public Participation) motions are powerful tools designed to protect individuals and organizations from being sued for expressing their opinions on matters of public interest. At Milosevic & Associates, our team will help you assess your case and determine whether an anti-SLAPP motion is appropriate. We can also provide guidance on defending your case and protecting your rights. Call us at 416-916-1387 or contact us online for a consultation.
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