Torts – Law is Cool http://lawiscool.com The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.6 1338880 Helena Guergis Sues Harper, CPC, and Cassels http://lawiscool.com/2011/12/23/helena-guergis-sues-harper-cpc-and-cassels/ Fri, 23 Dec 2011 22:41:30 +0000 http://lawiscool.com/?p=3275 When former Conservative Party of Canada (CPC) Member of Parliament, Helena Guergis, filed a claim yesterday against Prime Minister Harper and the CPC at the Ontario Superior Court, the story made headlines.

What didn’t attract as much attention is that the claim also included as defendants Arthur Hamilton and his law firm, Cassels Brock & Blackwell LLP,

2. The Plaintiffclaims as against the Defendant, Arthur Hamilton (“Hamilton”), for conspiracy, defamation, breach of fiduciary duty, breach of duty of good faith, breach of confidence, and negligence.
3. The Plaintiff claims as against the Defendant, Cassels Brock & Blackwell LLP (“Cassels Brock”), for conspiracy, defamation, breach of fiduciary duty, breach of duty of good faith, breach of confidence, and negligence…

14. Hamilton is an individual and a lawyer with the Toronto office of the Cassels Brock law firm who, at all material times, was the lawyer for CPC and Harper.
IS. Cassels Brock is a limited liability partnership and law firm with offices in several major Canadian cities that, at all material times, was acting as legal counsel for CPC and Harper.

The allegations against Hamilton include a claim that he received defamatory statements from Derrick Snowdy, a private investigator who appears to have played a role in the fiasco involving Guergis’ husband, Rahim Jaffer.  The allegations then state that Hamilton conveyed this information to Prime Minister Harper and others named in the claim (or alternatively did not make these statements, as the claim indicates).

It’s difficult to see how this function, operating in the capacity as a lawyer, could not attach some form of privilege.  Absolute privilege may be available to some of the other defendants (see New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)) and the defence of qualified privilege may attach to statements made by others. Lewis N. Klar stated in the Ottawa Law Review ((1991) 23 Ottawa Law Review 177-26),

The right of politicians to communicate information to the public has been protected by the defence of qualified privilege in recent defamation cases. In Parlett v. Robinson393, and Loos v. Robbins394, Courts of Appeal have upheld the right of a Member of Parliament in the former case, and a Cabinet Minister in the latter, to make statements to the public through the media, which although defamatory were made in furtherance of their public duties. These decisions demonstrate a greater latitude to the types of statements which will be protected, particularly with regard to the breadth of their publication, than had been the case in earlier Canadian law395.

In Leverman v. Campbell Sharp396, Lambert J.A. held that the defence of qualified privilege will be defeated if the defendant publishes a statement which is not his honest belief. Although carelessness in forming the belief will not defeat the defence, carelessness in publishing it, so that the statement does not represent one’s views, will.

In order to overcome qualified privilege there must be an element of malice, as explained in Hill v. Church of Scientology of Toronto,

144     The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149.

145     Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pp. 323-24, and Netupsky v. Craig, [1973] S.C.R. 55, at pp. 61-62.

146     Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. See The Law of Defamation in Canada, supra, at pp. 13-193 and 13-194; Salmond and Heuston on the Law of Torts (20th ed. 1992), at pp. 166-67. As Loreburn E. stated at pp. 320-21 in Adam v. Ward, supra:

    • . . . the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.

147     In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given. For example, in Douglas v. Tucker, [1952] 1 S.C.R. 275, the defendant, during an election campaign, stated that the plaintiff, who was the officer of an investment company, had charged a farmer and his wife an exorbitant rate of interest causing them to lose their property. The plaintiff maintained that the allegation was without foundation. In response, the defendant asserted that the plaintiff was facing a charge of fraud which had been adjourned until after the election. This Court held that the defendant had an interest in responding to the plaintiff’s denial, thereby giving rise to an occasion of qualified privilege. However, it ruled that the occasion was exceeded because the defendant’s comments went beyond what was “germane and reasonably appropriate” (p. 286).

The other claims against Hamilton are also worth highlighting because it involves his firm,

45. On April 8 and 9, 2010, and all material times, Hamilton and Cassels Brock owed a fiduciary duty and duty of good faith to the Plaintiff, and were obligated to act with regard to the Plaintiffs interests and keep and protect the Plaintiffs confidences as a result of the relationship that existed as between the Plaintiff, Hamilton and Cassels Brock, including as a result of the legal advice that had been provided by Hamilton and Cassels Brock to the Plaintiff on or about April 7, 2010 at a time when the Plaintiff was vulnerable and dependent upon Hamilton and Cassels Brock and relying upon their professional advice.

If Cassels was indeed representing both Guergis and Harper/CPC at the same time, and was providing advice to Harper/CPC that was detrimental to Guergis, it is difficult to see how there could not be a conflict of interest,

48. In addition, Hamilton and Cassels Brock failed to avoid a conflict of interest whereby the interests of their other client(s) were promoted at the expense of the Plaintiffs interests, resulting in breaches of their fiduciary duties and duties of good faith owed to the Plaintiff.

Of course the nature of the advice, and whether they attempted to remove themselves from the record, are other factors that may come into play, especially since Harper made a statement soon after,

72. Also on or about April 9, 2010, Harper made the following public statement: Last night, my office became aware of serious allegations regarding the conduct of the Honourable Helena Guergis. These allegations relate to the conduct of Ms. Guergis and do not involve any other minister, MP, senator or federal government employee. I’ve referred the allegations to the Conflict ofInterest and Ethics Commissioner and to the RCMP. Under the circumstances, I will not comment on them further.

At the very least the lawsuit will finally provide information about the inner workings of Harper’s Conservative Party, which has been the target of general accusations of unilateralism and squashing any dissent. The lawsuit may eventually demonstrate that not unlike the Liberal Party before them, infighting is an unfortunate reality of Canadian political parties once established in power. While this revelation might be refreshing to those who mistakenly believed it to be a problem plaguing Liberal dynamics, it may be less than inspiring to a generation who has been largely apathetic and removed entirely from public political discourse.

The Statement of Claim is below.

Guergis v Novak et al Statement of Claim

]]>
3275
The Bloody Vibrator Suit http://lawiscool.com/2011/10/13/the-bloody-vibrator-suit/ Thu, 13 Oct 2011 08:19:57 +0000 http://lawiscool.com/?p=3239 The title says it all.  SF Weekly:

A Northern California woman is suing Pipedream Products, which manufactures sex toys, claiming her experience with her dildo was anything but pleasurable. According to the claim filed in Yreka,  April Bonjour and her boyfriend were getting frisky and decided to bring out the dildo for some foreplay. But while the two were getting it on, something started to feel not quite right, according to Bonjour.

You can read the pleadings here.

]]>
3239
Renewing the Debate on Anti-SLAPP Legislation in Ontario http://lawiscool.com/2011/10/06/renewing-the-debate-on-anti-slapp-legislation-in-ontario/ http://lawiscool.com/2011/10/06/renewing-the-debate-on-anti-slapp-legislation-in-ontario/#comments Fri, 07 Oct 2011 01:02:59 +0000 http://lawiscool.com/?p=3233 October 28th of this month will mark the one year anniversary of the publication of the Anti-SLAPP Panel’s Report to the Attorney General on anti-SLAPP legislation. Since then, the chatter on the issue of strategic litigation against public participation (SLAPP) appears to have died down. With the intent of renewing the debate on this issue, the following article, although long overdue, will summarize and discuss the Advisory Panel’s report.  It is hoped that the new provincial government will address the issue of SLAPPs during its four year term.

Introduction

In June 2010 the Attorney General of Ontario created the Advisory Panel to advise him on potential anti-SLAPP legislation. Arguably, this move was in response to what has been described as the “most down-and-dirty development fight in Ontario’s recent memory”.[1] After gaining approval from the Ontario Municipal Board (OMB) to build a resort and marina on the shores of Big Bay Point, a developer made a costs application for $3.2 million against a community group and its lawyers that had opposed its plans.[2] Although the OMB declined to award the developer its costs, the latter did not come away from the proceedings empty-handed. The notion of suing the lawyers of defendants to a SLAPP lawsuit sent shockwaves throughout the Ontario legal community. While the Advisory Panel was still in the process of developing its recommendations the insurer for Ontario lawyers warned its members that representing public interest groups was risky because those groups may become the target of a SLAPP lawsuit that involves great unanticipated cost consequences.[3]

Having reached that critical point, it was not a great surprise that the final report released by Advisory Panel to the public in December 2010 recommended that anti-SLAPP legislation should be created. Instead of endorsing the creation of new statutory rights to public participation and to “SLAPPback,” the Advisory Panel opted for a procedure-based approach for filtering out SLAPP lawsuits and made recommendations on the different types of provisions that should be included in the legislation.

This article reviews those recommendations with the objective of providing a “fresh set of eyes” perspective on the issue. While the Advisory Panel’s support for anti-SLAPP legislation is a sign of progress, particularly in regards to its recommendation that a special expedited procedure be created, its approach as a whole may not have the teeth necessary to address SLAPP lawsuits, especially environmental ones, in an effective manner. This article takes the position that an approach that couples substantive rights with an expedited procedure should be adopted because it would deter SLAPP lawsuits and ensure that defendants receive adequate protection, regardless of whether the litigation involves an element of government action or not.

Unlike the final report, this article will primarily focus on environmental SLAPPs because public interest groups and ordinary middle-class citizens that speak out on environmental issues tend to be the targets of SLAPPs.[4] Ordinary middle-class citizens are particularly vulnerable targets because of their personal liability, as well as their lack of financial support and ideological dedication to defend against a SLAPP lawsuit.[5] This focus on should not be taken to imply that anti-SLAPP legislation should exclusively address environmental SLAPPs, as SLAPP lawsuits are in general considered to be weapons against public participation that must be disarmed.

Part I: SLAPPS – A Weapon Against Public Participation

During the 1970s SLAPPs were recognized for the first time as a legal phenomenon in the United States. They became part of the “corporate offensive” against activism[6] in response to the increase of American citizens speaking out on environmental and other social issues.[7] This phenomenon migrated to other jurisdictions such as Canada and Australia due to a similar rise in activism. Consensus has yet to be reached on the specific elements of a SLAPP lawsuit though it is generally accepted that a SLAPP lawsuit is a civil action without substantial merit that is brought against individuals, community and public interest groups, or local government officials for communicating with government or others on issues that affect the public’s interests.[8] They can be distinguished from other meritless and retaliatory civil litigation in that they are a reaction to political action.[9] Correspondingly, SLAPPs are designed to stop citizens from exercising their political rights and punish them for doing so.

The ultimate goal of initiating a SLAPP lawsuit is not necessarily a judgement in favour of the plaintiff. In fact, the most extensive study on SLAPPs to date, which was conducted in the late 1980s, found that plaintiffs did not succeed 77-82% of the time.[10] SLAPP lawsuits primarily wreak their mischief through the litigation process.[11] The plaintiff uses the various steps in the litigation process to waste the time and drain the financial resources of the defendant. An oft-cited passage that is used to describe the function of SLAPP lawsuits is provided in the following excerpt:

SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success… The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent.[12]

The expression and dissemination of different viewpoints in civil society are necessary conditions for democracy. By chilling participation in public decision-making and policy-making SLAPPs undermine democracy. This sentiment is shared by the Panel, who also notes that it is “crucial to encourage public participation [since] as voter turnouts decline, society’s needs become ever more complex and individuals feel increasingly powerless to effect meaningful change.”[13] Civil society is further disempowered with the “privatization of public debate” that occurs when a SLAPP lawsuit transfers a public political debate to the private, sometimes confidential, forum of the courtroom.[14] In the absence of any safeguards built into legislation, the common law on torts is used to subvert the democratic process.

Plaintiffs cannot directly sue people for exercising their democratic right to participate in the political process, though they can frame those activities perceived to be contrary to their interests as torts.[15] Common torts that are used by plaintiffs include: defamation, inducing breach of contract, conspiracy, trespass, nuisance, and interference with contractual relations.[16] Examples of SLAPP lawsuits include framing boycotts as intentional interference with economic relations[17] and opposition to land development as conspiracy and inducing breach of contract[18].

Given the aggressive use of SLAPPs it is possible that statutory participatory rights such as those built into Ontario’s Environmental Bill of Rights could be undermined by the fear of retribution.[19] Lawmakers have made an effort to incorporate rights to public comment and take legal action in environmental legislation. However, the unrestrained ability of a plaintiff to frame legitimate communications or conduct as torts can make those statutory rights to public participation impotent. The lack of legislative safeguards means that SLAPPs can transform public participation in the democratic process into a risky activity that attracts liability, even when condoned by the legislature.

Part II: Summary and Criticisms of the Advisory Panel’s Recommendations

1. Purpose of the Legislation

The report of the Advisory Panel starts off on the right track with its recommendation that the legislation include a purpose clause for the benefit of judicial interpretation.[20] It recommends that the purpose of the legislation should be to “expand the democratic benefits of broad participation in public affairs and to reduce the risk that such participation will be unduly hampered by fear of legal action.”[21] The Panel explains that this formulation is desirable because it will provide the courts and litigants with notice of appropriate uses of the legislation, and by doing so, it will deter litigation that does not fall within the appropriate uses.[22] As well, a purpose clause will help litigants differentiate between SLAPPs and non-SLAPPs, the latter of which is subject to the limited remedies for traditional civil actions.[23] An effective purpose clause plays the crucial roles of interpretation and gate keeping.[24] It is for those reasons that the lack of detail in the purpose clause is troubling.

While it is conceded that the mandate of the Panel was not to develop model legislation, it should have recommended that more principles be embodied in the purpose clause for the aforementioned reasons. As well, more principles would facilitate a more focused debate in the legislature. The experience in other jurisdictions such as British Columbia and Australia has shown that draft legislation tends to be watered-down in the final product due to strenuous opposition to anti-SLAPP legislation. While the responsibility of drafting the bill lies with the legislature, the Panel still should have provided more principles to assist the former’s debate and to avoid the risk of the bill being too general in the first place, and then being watered-down in the Third Reading. Further, providing more principles will crystallize the Advisory Panel’s vision and narrow the appropriate uses of the anti-SLAPP legislation so to avoid abuse.

Existing legislation and failed bills by provincial legislatures provide a source from which the provincial government can mine for principles. For example, the purpose clause which was used in Ontario and Nova Scotia’s failed bills and B.C.’s repealed legislation stated that the two main purposes of the legislation was: (i) to encourage public participation and deter claims brought for an “improper purpose”; and (ii) to preserve access to justice for claims not brought for an “improper purpose”. In relation to the first main purpose, legislation was to provide:

  1. an opportunity… for a defendant to allege that… the proceeding or a claim within the proceeding is brought or maintained for an improper purpose,
  2. a means by which a proceeding or claim that is brought or maintained for an improper purpose can be summarily dismissed,
  3. a means by which [defendants]…may obtain reimbursement for all reasonable costs and expenses that they incur as a result,
  4. a means by which punitive or exemplary damages may be imposed in respect of a proceeding or claim that is brought or maintained for an improper purpose, and
  5. protection from liability for defamation if the defamatory communication or conduct constitutes public participation [.]

Similarly, the purpose stated in the preamble of existing legislation in Québec is to promote access to justice, prevent “improper use” of the courts, and balance the financial strength of the parties. Québec’s legislation differs from that of the other provinces because it recognizes the “importance [of] promot[ing] freedom of expression affirmed in the Charter of human rights and freedoms”, while the above mentioned trio’s legislation failed to make reference to any human rights legislation.[25] As well, the trio’s definition of “improper purpose” had an intention element while Québec’s “improper use” does not. This subtle difference in terminology has a significant effect on the operation of the legislation.

The concept of improper use reflects the scope of the legislation; the legislation is to address a broad range of litigation beyond attempts to chill public participation and applies to reprehensible legal practices that are unrelated to public participation.[26] In comparison, the concept of improper purpose is incorporated into a threshold test for accessing the protection of the trio’s legislation. By forgoing an intention requirement Québec’s legislation avoids all the problems associated with proving intention in the context of an expedited procedure.

The intention element in the trio’s legislation placed a heavy burden on the defendant to show that the “principal purpose” for which the plaintiff brought its action was to prevent or dissuade public participation. That burden is difficult to satisfy because the plaintiff may have brought the action with the principal purpose of protecting its interests. It might be difficult for defendants to have access to documents that would demonstrate the plaintiff’s intent since such documents might  be privileged.[27] Proving intent would  entailed extensive and expensive discovery.[28] More importantly, a focus on intention distracts from the key issue regarding SLAPPs: the effect on free speech.[29] The Advisory Panel was prudent in not only avoiding an intention element in its recommendation, but, as will be discussed below, it was also prudent in developing a threshold test for accessing its proposed expedited procedure that focuses on the effect of the lawsuit on public participation.[30]

While its avoidance of an intention requirement reflected a well-researched and analysed thought-process on the part of the Panel, the failure to provide a more detailed purpose clause is the primary reason why the new provincial government should not adopt the Advisory Panel’s recommendation wholesale. The other provinces’ attempts to legislate demonstrate the lack of detail in the Panel’s recommendation regarding the purpose clause. The two principles provided by the Panel should be expanded so that they include the principles outlined in the trio’s common purpose clause, but should exclude any reference to intention. The preamble in Québec’s legislation seems to reflect this recommendation, and thus is provides a convenient model to incorporate into the Panel’s recommended purpose clause.

2. The Threshold Test

As mentioned above, the Panel prudently developed an effects-based threshold test for accessing the expedited procedure.  First, the defendant must show that the plaintiff’s action involves a communication on a matter of public interest on a balance of probabilities. Second, if the defendant satisfies that burden, then the burden shifts to the plaintiff to show that: (i) its case has substantial merit; (ii) there are substantial grounds to believe that no valid defence exists; and (iii) and the harm it has suffered outweighs the harm done to the public interest by allowing the action to continue.[31] In its comments the Panel states that the expedited procedure should apply if the effect of the action is “likely to have an adverse effect on the ability of the defendant or others to participate in discussions on matters of public interest” [32] (emphasis added). The subtle sophistication of the test is reflected in its application to adverse effects on third parties’ public participation. By including the adverse effects on third parties’ public participation the Panel acknowledges the chilling effect that SLAPPs can have on the greater public.

For the purpose of assessing the merits of the threshold test recommended by the Panel, it is useful to look at an alternative threshold test called a “special motion to strike” that places the burden initially on the plaintiff. An example is provided in § 425.16 of the California Code of Civil Procedure[33], which allows for a plaintiff’s alleged SLAPP lawsuit to be struck out unless it can show that there is a probability that its claim will succeed. This test presumptively applies where the plaintiff’s action involves the right to petition or right to free speech in connection with a public issue. Due to corporate abuse of this provision the California legislature enacted § 425.17, which creates two exemptions to § 425.16. These exemptions help ensure access to justice for legitimate plaintiffs.

One exemption applies where a plaintiff brings an action solely in the public interest or on behalf of the general public, but also seeks relief greater than or different from the relief sought for the general public. As well, private enforcement of the alleged wrong must be necessary and place a disproportionate burden on the plaintiff in relation to its stake in the matter. A plaintiff that would satisfy this exemption would likely be a public interest non-for-profit or nongovernmental organization (NGO) with few financial resources. Corporate plaintiffs would be hard-pressed to show that they suffer a financial burden and are acting solely in the public interest.

The second exemption also ensures access to justice for legitimate plaintiffs. It applies where the plaintiff brings an action brought against a business for false representations made to potential customers about the former’s products or services or a competing business’ products and services.

In addition to being a feasible alternative that ensures access to justice for legitimate plaintiffs, the California provisions also seem to possess the capacity to protect common law and statutory causes of action. Individuals that have been wronged by corporate environmental infractions have initiated common law tort actions such as nuisance and trespass. The Environmental Bill of Rights provides a statutory right to bring an action for public nuisance causing environmental harm[34] or to protect a public resource[35]. Those rights could be undermined if anti-SLAPP legislation was abused. Unfortunately, the final report does not appear to explicitly address anti-abuse provisions.

The special motion to strike also has the advantage of presumptively protecting the rights to petition and free speech whereas the Panel’s test requires the defendant to prove that it made a communication on matter of public interest. As will be discussed later on, the Panel’s refusal to endorse a right to public participation explains why it places the burden on the defendant. If there was a right to public participation, then there would be no need for the defendant to prove that it made a communication on a matter of public interest. Ignoring for the moment the Panel’s justifications for not endorsing such a right, there does not appear to be any convincing reasons provided by the Panel as to why the burden in the threshold test should be initially placed on the defendant.

The Panel could have recommended that a special motion to strike apply presumptively whenever a communication on a matter in the public interest is made and provided a definition of the term “communication in the public interest”. That approach would avoid the creation of a new right and place the burden on the plaintiff initially. Further, access to justice for the plaintiff would not be negatively impacted and the parties’ interests would be balanced in a manner similar to that in the Panel’s threshold test. In a special motion to strike, the defendant’s interests would be embodied in the definition of communication in the public interests. If the plaintiff’s cause of action involved a communication on matter in the public interest, then it would have the opportunity to show that its claim is viable through pleadings and affidavits. Consistent with the Panel’s recommendation, the court would evaluate the plaintiff’s claim based on its effect on the defendant’s communications on a matter in the public interest. This exercise demonstrates that the main problem with the Panel’s test is the absence of any justification for placing the burden initially on the defendant.

3. Substantive Rights

a. A Right to Public Participation

The most disconcerting recommendation by the Advisory Panel is its explicit rejection of a statutory right to public participation. According to the Panel, such a right is unnecessary because its proposed procedure-based solution, coupled with existing rights, are sufficient to address SLAPP lawsuits. The Panel states:

Canadians’ constitutional freedom of expression, and the recognized importance of constitutional values for the development of the law applicable in civil litigation, provide a firm foundation for the procedural remedy recommended in this Report… [This remedy] will better protect and promote freedom of express on matters of public interest while having regard to the values at stake on both sides of cases involving such expression.[36]

The main criticism of the Panel’s position is that the constitutional right to freedom of expression outlined in s. 2(b) of the Charter of Rights and Freedoms [37]  does not apply litigation between private parties.[38] In Dolphin Delivery Ltd v RWDSU, Local 580 the Supreme Court of Canada (SCC) held that the Charter applies where there is an element of government action.[39] Since the Charter does not apply to litigation between private parties there appears to be no protection for defendants against private plaintiffs.  The Panel’s reliance on the judiciary’s duty to develop the common law in a manner consistent with the Charter neglects the requirement that any such development must not upset balance between judicial and legislative action.[40]  No explanation is provided to address these issues, and yet the Panel is willing to find without reservation that a right to public participation is unnecessary.

The inapplicability of constitutional protections to litigation between private parties seems to be indirectly addressed via the Panel’s recommendation that one of the threshold tests for accessing the proposed procedure-based remedy should be whether the communication is on a matter of public interest.[41] If the defendant can show that the subject of the lawsuit against it involves a communication on a matter of public interest on a balance of probabilities, then the burden will shift to the plaintiff to satisfy the aforementioned three-part test.[42] The Panel also recommends that the new procedural remedies should apply to a broad scope of activities regardless of whether an activity involves public or private forums of discussion.[43] By framing the issue in terms of whether a communication on a matter of public interest and erasing the distinction between public and private forums, the Panel is attempting to create the perception that the distinction between governmental and private litigation is not a problem.

Regardless of how the Panel frames the issue, the problem of different treatment for defendants between governmental and private litigation still persists. Defendants involved in litigation with a private party will not have the benefit of the Charter’s protections. That argument is not meant to imply that a right to public participation should be constitutionalized so that the same protections exist in governmental and private litigation. Instead, it is meant to highlight the disparity in protection and different burden that a defendant in non-governmental litigation must endure. Instead of shielding itself with a positive right to public participation, the defendant must show that its communication is on a matter of public interest. As above, the Panel does not justify why the defendant should carry that burden. A statutory right to public participation would allow for parallel protection as well as avoid the issue of which party must carry the burden.

The advantages of a statutory right should not be taken to imply that the expedited procedure proposed by the Panel should not be adopted. On the contrary, there is support for coupling the procedure with a statutory right to public participation. In a article referred to by the Panel, Susan Lott from the Public Interest Advocacy Centre supports the creation of a right to public participation. She supports an approach that involves an expedited procedural process, which is consistent with the Panel’s recommendations, but goes further by advocating for a right to public participation.[44] Lott explains that legislation that involves procedural and penalty considerations only work if there is a clear way to identify a SLAPP lawsuit like creating a right to public participation.[45] The latter “would provide the courts with direction to assess the facts of the case in the context of determining the impact of the lawsuit on the defendant’s right to express and exercise their democratic rights.”[46] In agreement, Chris Tollefson, a leading Canadian scholar on the issue of SLAPPs, argues that the right should have a broad scope so that it encompasses the variety of ways that citizens participate directly or indirectly in the processes of government.[47] He also argues that the right should protect communication to all levels of government on matters of public policy as well as communications directed at the public at large.[48]

Despite tremendous support for a statutory right in academic circles, lawmakers in various jurisdictions have yet to create such a right. To understand their reluctance to do so, one must look to the experiences of jurisdictions that enacted anti-SLAPP legislation.

b. British Columbia’s Failed Experiment with Anti-SLAPP Legislation

Possible explanations for the Advisory Panel’s reluctance to endorse the creation of a right to public participation are provided by a review of B.C.’s experience of anti-SLAPP legislation. After the first bill proposed by the government, Bill 29, was found to be too extreme, a second, more watered-down bill was proposed. The fierce debate over the proposed legislation influenced the government to ultimately enact the latter, which vainly attempted to create a compromise between the competing factions involved.

When Bill 29 was proposed in 2000 the provincial government was receptive to anti-SLAPP legislation based on then-Premier Ujjal Dossanjh’s perception of the need to gain public support by prioritizing environmental and community interests.[49] Opposition came from two fronts: business and industry interests coupled with the criticisms of the Liberal Party of Canada. Given the slew of environmental disputes between developers and environmental groups in B.C., it was no surprise that industry and business groups opposed the legislation. Political opponents criticized the proposed legislation based on their view that SLAPPs were not a problem that required legislation and that existing procedural remedies were capable of addressing SLAPPs.[50] As well, they argued that legislation would preclude access to justice by plaintiffs and could be subject to abuse.[51] Bill 29 ultimately died on the legislative table and a new bill was proposed. The substantially different Bill 10 ultimately passed Third Reading and the Protection of Public Participation Act was enacted by the B.C. legislature in April 2001. Political and private interest opposition influenced the government to reach a compromise that essentially watered-down the legislation.

The critical difference between the two bills is that Bill 29 contained a statutory right to public participation. Section 2(1) of the bill stated that “a person may make any communication or engage in any conduct if the communication or conduct is genuinely aimed at promoting or furthering lawful action by the public or by any government body in relation to an issue of public interest.” Unprotected communication or conduct is that which resulted in property damage or physical injury, was in breach of any law or court order, or is considered by a court to be an unwarranted inference with a person’s property or rights.[52] This right would have provided a complete defence to a SLAPP lawsuit, while its exceptions would have maintained the court’s “discretion to refuse protection to behaviour that overstepped the bounds of what would be considered reasonable in a democratic society.”[53] However, the aforementioned criticisms influenced the lawmakers to bow to the multitude of competing interests. The content of the resulting legislation demonstrates the consequence of governments attempting to appease all of the interested stakeholders above the greater public interest in addressing a legal problem: a watered-down legislative regime that does nothing to change the status quo.

c. Australia’s Experience with Anti-SLAPP Legislation

Australia’s experience with anti-SLAPP legislation parallels that of B.C. Similar to B.C.’s experience, a bill that included a right to public participation was proposed in the Australian Capital Territory (ACT).  Bill 40 established a right to public participation that was tailored to exclude from its protection activities outside legal democratic activity such as property damage.[54] A lawsuit would be summarily dismissed where the defendant showed that its activity was a legitimate act of public participation.[55] However, like its B.C. counterparts, the ACT lawmakers ultimately rejected a substantive rights approach for a procedural one.

Like the Canadian trio’s legislation, the resulting Protection of Public Participation Act 2008 used an “improper purpose” threshold test to filter out SLAPPs.[56]  Like the trio’s definition of improper purpose, the ACT’s legislation imposed the onerous burden of satisfying intention and primary purpose requirements.[57] In a similar fashion, the legislation was watered-down in response to fierce opposition that echoed the criticisms that were raised in B.C. The Australian experience with SLAPP legislation reinforces the effect that pandering to a multitude of competing interests can have on the content of legislation.

The experiences in B.C. and Australia demonstrate one of the many ironies of the legal system. While democracy is reflected in the legislative process through the expression of the competing interest groups’ viewpoints, it is not necessarily engendered in the content of the resulting legislation. Specifically, in both of these jurisdictions, a proposed right to public participation that would have protected activities that facilitate the democratic process was deleted out of legislative bills after lawmakers bowed to the opposition’s pressure. Although democratic decision-making necessarily entails the consideration of a variety of viewpoints, the lawmakers seemed to have forgotten that the means of democracy do not necessarily entail compromise. There are some circumstances where the means of democracy such as a right to public participation need to be established so that a variety of viewpoints can be raised throughout civil society. In other words, a right to public participation would facilitate and reinforce the expression of various viewpoints in various contexts. By successfully advocating for the exclusion of the right, the opposition was able to express its viewpoint, but the greater public was hindered in its overall ability to do so because of the exclusion of the right from the resulting legislation. The failure to perceive this relationship means that the Advisory Panel is perfunctorily following in footsteps of its peers towards a situation where democracy does not function properly.

d. A SLAPPback Right

One issue that the Advisory Panel cannot be said to have replicated is that of a SLAPPback right because its report does not even address it. A SLAPPback right is a “countersuit in which targets [of a SLAPP lawsuit]… sue the filers for injuries and losses caused by the SLAPP.”[58] Penelope Canan and George W. Pring concede that it is ironic that “the cure [to a SLAPP lawsuit] is a dose of the same disease”, but maintain that SLAPPbacks are different from SLAPPs. Writing from an American perspective, they argue that a SLAPP lawsuit is an abuse of the court system, a violation of constitutional rights, and an unconstitutional effort to chill public participation.[59] In comparison, SLAPPbacks are an acceptable use of the court system because they defend constitutional rights and create accountability for filers that cause injuries to others.[60] They address situations where the defendant receives a costs award for its legal expenses yet is uncompensated for bad faith or abuse of process by a plaintiff.[61] Finally, many American scholars have endorsed SLAPPbacks based on the deterrent effect they have on the initiation of SLAPP lawsuits.[62]

There are different approaches to the content of a SLAPPback provision. Tollefson suggests a provision that allows the defendant to recover costs as well as actual and punitive damages for bad faith or abuse of process by the plaintiff without having to initiate a separate claim for abuse of process.[63] In some U.S. states defendants must exercise the SLAPPback either in a separate claim or as a cross-claim or counterclaim in the original proceeding.[64]

An example of one jurisdiction that adopts the latter approach is the State of New York. According to §70-a(2)(a) of the Civil Practice Rules, a defendant that seeks costs and legal fees must show that the SLAPP action lacked substantial basis in fact and law, and cannot be supported by a “substantial  argument  for  the  extension, modification or reversal of existing law”.[65] Other compensatory damages may be recovered if the defendant shows that the action was commenced “for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.”[66] The defendant may also be able to recover punitive damages if the action was commenced solely for any of the aforementioned purposes.[67] This type of provision is superior to existing tests located in the Ontario Rules of Civil Procedure because it explicitly addresses the nature of SLAPPs. While opponents to anti-SLAPP legislation argue that civil procedure rules provide an existing, albeit unexploited, remedy to SLAPPs, it has been conceded by many that, in practice, the scope of those rules are too limited to address SLAPPs.[68] Further, a SLAPPback has a deterrent effect while subsidiary claims provided for in provincial rules of civil procedure do not.

4. Expedited Procedure

The main thrust of the Advisory Panel’s approach to anti-SLAPP legislation is a special expedited procedure that would address the mischief that SLAPPs wreak through the various steps of the litigation process. It maintains this position despite big business’ arguments that existing law offers satisfactory remedies against abusive litigation.[69] In B.C. and Australia the same argument was raised by big business and the law society, respectively. However, like its counterparts in those jurisdictions, the Panel recognizes that an expedited procedure will make it easier and cheaper for defendants to challenge SLAPPs.

The expedited procedure proposed by the Advisory Panel addresses the shortcomings in existing procedural rules by providing for short timelines and reduced evidentiary requirements via motions for relief and appeal. In its recommended procedure, the defendant shall be allowed to serve on the plaintiff notice for relief accompanied by affidavit evidence.[70] Then the plaintiff has fourteen days to respond to the motion by filing affidavit evidence.[71] Out of court cross-examination of the affidavits by the parties is to occur within seven days after the plaintiff delivers its affidavit evidence.[72] Further, there is a one day maximum for each side to conduct cross-examination.[73]

At least three days prior to the hearing of the defendant’s motion, factums are to be delivered.[74] The actual motion is to be heard within sixty days of the filing.[75] The Advisory Panel’s expertise is reflected in its clever recommendation that the plaintiff be barred from taking any further step in the SLAPP proceeding until the defendant’s motion is decided.[76] This recommendation prevents the plaintiff from undermining the efficiency of the expedited process by engaging in other tactical steps. The process balances the integrity of the process with access to justice for the plaintiff with the exception that the latter may apply for an injunction where serious harm has occurred or there is a threat of serious harm.[77]

The consequences of the motion reflect deterrence against filing SLAPP lawsuits. The most obvious deterrent is the dismissal of cases that fail to meet the public participation test discussed above. Other benefits of dismissal include awarding full indemnity costs to the defendant[78] and a presumption that the pleadings cannot be amended.[79] As well, the defendant could receive damages where the court finds bad faith or improper motive on the part of the plaintiff.[80] These components of the expedited procedure establish the foundation for a potentially effective deterrent effect. Unfortunately, these components are only procedural in nature. They can filter out SLAPP lawsuits but they do not go far enough.

A filtering mechanism does not proactively prevent SLAPPs; it still allows them to function, albeit in a reduced capacity, by giving the plaintiff access to the courts. Defendants require a positive right to public participation that insulates their lawful conduct and communication from challenge. That right, in conjunction with the procedure proposed by the Panel would serve as a comprehensive mechanism for deterring SLAPPs

5. Costs

Another component of a comprehensive mechanism for deterring SLAPPs is special rules for advance cost orders. The Panel acknowledges that common law advance cost orders for matters of public interest are rare, though refuses to endorse statutory provisions providing for them because of its belief that the speed of the procedure coupled with full indemnity costs for successful defendants will be an effective remedy for the imbalance of resources between the parties.[81] These short timelines and reduced evidentiary requirements will counteract some of the damage-inflicting components of SLAPPs.

A potential weakness of the Panel’s approach to cost awards is that cost awards in general can be ineffective in deterring SLAPPs. Costs awards, even full indemnity costs, are perceived to be a cost of doing business for large corporate plaintiffs.[82]  As well, the requirement that a defendant be successful in its motion for relief in order to access those full indemnity costs may be impractical in light of the lack of accessible advance cost orders. If a defendant lacks crucial financial resources during the actual proceedings, then the likelihood of its success is significantly reduced. The speed of the proceedings will alleviate the overall time and financial resources considerations, but a quick proceeding that is ill-defended will not serve to remedy the financial imbalance between the parties when it really matters. Even more damaging to the Panel’s position is the observation by Sharon Beder that if a defendant cannot afford legal counsel, then it may lose for not following the proper procedure.[83] At the risk of underestimating the capabilities of self-represented defendants, it must be acknowledged that the latter may not understand the proposed expedited procedure regardless of its relative simplicity.

6. Funding

The Panel does not make any recommendation about the funding for defendants,[84] it does make some related comments that are worthy of criticism. First, it states that the prospect of a full indemnity award could encourage legal counsel to represent defendants on a contingency fee.[85] While there is willingness for some legal counsel engage in contingency fee arrangements, the Panel seems to have forgotten the effect of the notorious application for $3.2 million in costs at the OMB that extended to the defendants’ lawyers. Coupled with the recent confirmation by the insurer for Ontario lawyers that SLAPPs present the risk of large unanticipated cost consequences, it is reasonable to expect that some lawyers will be deterred from taking on clients notwithstanding the possibility of a full indemnity award. The Panel’s comment appears to be naive in light of these recent events.

Second, the Panel’s “hope” that its expedited procedure and remedies will reduce the need for a legal aid fund for impecunious defendants may not pan out. [86] In all fairness to the Panel, it does state that a fund would be “attractive” but at the same time, recognizes that “public money is scarce”.[87] The Panel adds that it lacks the expertise to address this issue and that the matter is properly within the government’s responsibility. While these conclusions are proper for the Panel to make, the Panel could have addressed alternative sources of funding for a legal aid fund.

For example, the plaintiff with an illegitimate claim could be required to repay the amount of money that the defendant had to request from a fund that is initially established by government or private funding. In the alternative, the entire fund could be self-funded by unsuccessful plaintiffs for the use of future defendants.  These suggestions demonstrate that there are several creative recommendations that the Panel could have made, and yet failed to, in order to address the issue of funding of legal aid for impecunious defendants.

7. Personal Liability for Directors and Officers

The Panel’s recommendation regarding personal liability for directors and officers for costs and damages leaves a lot to be desired. This issue is relevant in the context of a plaintiff corporation that has insufficient assets or is judgement proof. The Panel notes that personal liability for directors and officers would require processes similar to that in corporate law. It states that “[s]ome method might have to be found to record directors’ dissent from the decision to sue, to avoid penalizing those who have opposed the commencement of the action found to have been unmeritorious.”[88] Since such a method would be “unduly complex and unnecessary to provide a full remedy for the defendant”[89], the Panel does not recommend personal liability for directors and officers.

The Panel’s position is untenable given that corporate law statutes already adequately address personal liability for directors and officers in other contexts. For example, in corporate law statutes an individual director may not be held personally liable for a decision of the majority of the board where he or she registers his or her dissent.[90] There are also provisions that address corporate governance issues such as the standard of care and defences for directors, as well as indemnification and insurance for both directors and officers. Unless there is some reason why plaintiffs that initiate SLAPP lawsuits would be excluded from the application of corporate law statutes then it is unclear why the Panel considers this issue to be so difficult to address that it refuses to recommend personal liability for directors and officers. Closer scrutiny of existing corporate law statutes may reveal to the Panel that it is unnecessary to exclude personal liability provisions when there may be existing legislation to either deal with the intricacies of this issue or act as a model for developing anti-SLAPP legislation.

Given that the Panel did not recommend personal liability for directors and officers, and thus did not provide any suggestions as to the type of statutory language that would be used in such a provision, it is useful to look to existing provisions for guidance. In the Code of Civil Procedure of Québec s. 54.6 states:

If a legal person or an administrator of the property of another resorts to an improper use of procedure, the directors and officers of the legal person who took part in the decision or the administrator may be ordered personally to pay damages.

As mentioned above, the use of the “improper use” device is problematic given the difficulty of proving intention and primary purpose of the plaintiff was to deter public participation. Further, there does not appear to be any discretion for the court to exercise in s. 54.6 where the plaintiff has sufficient assets. If that is the case, then it may be unnecessary for a successful defendant to turn to the directors and officers. The advantage of s. 54.6 is that it somewhat addresses the Panel’s concern about holding directors and officers personally liable where they dissented to a decision of the majority of the board through the requirement that the person take part in the decision. Section 54.6 also demonstrates that one legislature was able to navigate through the perceived complexity of personal liability and directly legislate on the issue.

8. Qualified Privilege

The Panel’s recommendation in favour of a statutory defence of qualified privilege to the tort of defamation is suitable for anti-SLAPP legislation in Ontario, though with some caveats. In order to explain these caveats, the common law on qualified privilege must first be explained. Qualified privilege is a defence the tort of defamation. The latter is a “strict liability” tort, in that it can be proved in the absence of intention to do harm when three requirements are satisfied:

  1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
  2. that the words in fact referred to the plaintiff; and
  3.  that the words were published, meaning that they were communicated to at least one person other than the plaintiff.[91]

Once the plaintiff satisfies all three requirements, the burden then shifts to the defendant to assert the defence. Qualified privilege only attaches to the occasion upon which the communication is made, and not to the communication itself.[92] In Hill v. Church of Scientology of Toronto the Supreme Court of Canada quoted the following passage from the House of Lord’s decision in Adam v. Ward[93] to explain the difference:

a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.[94]

By focusing on the occasion on which the communication is made, the defence ensures that communications that benefit the greater good of society are made freely. If the occasion is privileged, then the communication is presumed to be bona fide and thus can be freely published with impunity. However, the privilege is “qualified” and not absolute; the privilege can be defeated if the defendant acted with malice.

In light of the key role that qualified privilege plays in protecting communications that promote the well-being of society, the Panel recommends that a statutory version of the defence be included in the legislation. The statutory defence would apply “where a person with a direct interest in a subject of public interest makes statements on that subject to persons who have a direct interest in that subject.”[95] Like its common law counterpart, the defence would be defeated by proof of malice. As well, the communication must be made between people that have an interest in the matter. This requirement of common interest or “reciprocity” is particularly attractive to the Panel, who uses it to justify the wholesale adoption of the common law formulation of the defence. Freedom of expression in favour of the defendant is balanced by the circumscription of the scope of the defence through the direct interest requirement. Correspondingly, the Panel is able to achieve its mandate of creating a balanced response to SLAPPs.

Notwithstanding the benefits of this balanced response, the wholesale adoption of the common law formulation of the defence may be problematic in the context of environmental matters. In particular, the requirement that the defendant have a direct interest seems at odds with case law on public interest standing in relation to environmental matters. Specifically, the case law indicates there is judicial willingness to consider NGOs that lack proximity to the matter to have a direct interest.

A case in point is the decision of MiningWatch Canada v Canada (Minister of Fisheries & Oceans).[96] MiningWatch sought to challenge a decision regarding an environmental assessment of a mining project, but the issue arose whether it had standing. The latter was an issue because s. 18.1(1) of the Federal Courts Act states that an application for judicial rule may be made by “anyone directly affected by the matter in respect of which relief is sought”[97] (emphasis added). The Federal Court held that the phrase “directly affected” should not be given a narrow meaning so to restrict the pool of applicants for judicial review of a federal administrative decision-maker. In exercising its discretion to grant standing, the Court noted that the purpose of the Canadian Environmental Assessment Act was to ensure that timely and meaningful public participation and consultation occurs in relation to projects that require an environmental assessment. In circumstances where a NGO and not local citizens apply for standing, a court will consider whether the applicant has a “long standing reputation and … must do significant work on the subject-matter of the challenge, and its interest must be greater than that possessed by a member of the general public”.[98] The Court’s grant of standing to a NGO seeming to have no direct interest in the matter in MiningWatch demonstrates judicial willingness to facilitate public participation, notwithstanding the lack of immediate interest in environmental matters. There is recognition that in the absence of local representation, there would be no one to advance the public’s interest in environmental matters without the involvement of NGOs.

Caselaw on NGO public interest standing is relevant to qualified privilege because it indicates that the Panel’s requirement for a direct interest may be unduly restrictive. These organizations, which have taken on a leadership role on environmental issues, will be excluded from the protection of the statutory defence in the absence of a direct interest. As indicated in the MiningWatch decision, it is harsh to deny this defence when there does not appear to be any one from the community to advance the public interest. Especially since the financial toll and waste of resources associated with SLAPPs can deter individuals from communicating on issues that are directly interested it, it seems counterintuitive to create a statutory defence that ignores that effect. It is for that reason that the balance that the Panel wishes to achieve in a statutory defence may not in fact be achieved effectively.

Conclusion

The current provincial government has taken the first step towards disarming weapons against public participation with the creation of the Advisory Panel. Now that the latter has fulfilled its mandate, the responsibility rests with the new provincial government to assess which of the Panel’s recommendations are suitable and to take the initiative to legislate in a creative and effective manner. This article has attempted to facilitate that process by reviewing and making recommendations. Having completed this “fresh eyes” review of the recommendations, it is concluded that the Panel’s blueprint for anti-SLAPP legislation provides some of the basic elements of anti-SLAPP legislation, but is in need of substantial revision on key issues.

The basic criticism of the recommendations is that it lacks the teeth necessary to deter SLAPPs. While an expedited procedure for SLAPPs would undermine the damage-inflicting components of SLAPPs, which are to waste the resources of defendant, there is glaring lack of substantive rights that would affirmatively protect public participation. Cutting down on the cost and time for adjudicating SLAPP lawsuits will not necessarily deter plaintiffs when litigation is seen as a cost of doing business. It is for that same reason that full indemnity cost awards for successful defendants will not effectively combat SLAPPs alone. The only way to truly disarm SLAPPs is to couple the expedited procedure proposed by the Panel with substantive rights. Among other optional rights, a right to public participation is necessary to create a safe space for the dissemination of a variety of viewpoints in civil society. Without such right, the public participation in issues of public concern will continue to decrease and the democratic process will become an institution for advancing corporate interests over that of the public good.


[1] Jeff Gray, “Ontario looks to smack down SLAPPs”, The Globe and Mail (6 July 2010) online: The Globe and Mail <http://www.theglobeandmail.com>.

[2] Kimvar Enterprises Inc. v Nextnine Limited (30 January 2009), OMB PL050290, online: OMB  <http://www.omb.gov.on.ca>.

[3] Norman MacInnes, “Practice Pitfalls” (2010) 9:2 LawPRO 1 at 3, online LawPRO <http://www.practicepro.ca/default.asp>.

[4] Sheila R Foster, “Public Participation” in Michael B Gerrard &  Sheila R Foster,  eds,  Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks (Chicago: ABA Publishing, 2008) 225 at 247.

[5] Sharon Beder, Global Spin: The Corporate Assault on Environmentalism (Vermont: Chelsea Green Publishing Company, 1997) at 69.

[6] Rob White, “Stifling Environmental Dissent” (2005) 30:6 Alternative LJ 268 at 268.

[7] Supra note 5 at 64.

[8] British Columbia, Ministry of the Attorney General of British Columbia, Developing a Response to Strategic Lawsuits Against Public Participation in British Columbia, (2000) at 3.

[9] Penelope Canan & George W Pring, SLAPPs: Getting Sued for Speaking Out (Philadelphia: Temple University Press, 1996) at 8.

[10] Pamela Shapiro “SLAPPs: Intent or Content? Anti-SLAPP Legislation Goes International” (2010)19:1 Rev of European Community & International Environmental Law 14 at 14.

[11] Samantha Brown & Mark Goldowitz, “The Public Participation Act: A Comprehensive Model Approach to End Strategic Lawsuits Against Public Participation in the USA” (2010) 19: 1 Rev of European & International Environmental Law 3 at 4.

[12] Gordon v Marrone 590 NYS (2d) 649 at 656 (1992).

[13] Ontario, Anti-SLAPP Advisory Panel, Report to the Attorney General (2010) at para 44 (Chair: Mayo Moran), online: AGO  <http://www.attorneygeneral.jus.gov.on.ca>.

[14] Supra note 5 at 66.

[15] Ibid at 64.

[16] Michaelin Scott and Chris Tollefson, “Strategic Lawsuits Against Public Participation: The British Columbia Experience” (2010) 19: 1 Rev Of European & International Environmental Law 45 at 46.

[17] Daishowa v Friends of the Lubicon (1998), 39 OR (3d) 620 (Gen Div) (QL).

[18] Fraser v Saanich (District) (1999), 5 MPLR (3d) 80 (BCSC) (QL).

[19] Environmental Bill of Rights,1993, RSO 1993, C-26 ss 15(1),16(1), 21(1).

[20] Supra note 13 at para 18.

[21] Ibid.

[22] Ibid, at para 17.

[23] Ibid.

[24] Supra note 16 at 50.

[25] Québec, Code of Civil Procedure, RSQ c C-25, Preamble to s 54.1.

[26] Supra note 10 at 55.

[27] Ibid, at 43.

[28] Ibid, at 25.

[29] Greg Ogle “Anti-SLAPP Law Reform in Australia” (2010) 19:1 Rev Of European Community & International Environmental Law 35 at 35. See note 12 at note 42; note 11 at 25.

[30] Supra note 13 at para 35.

[31] Ibid, at para 38.

[32] Ibid, at para 35.

[33] California Code of Civil Procedure, Cal CCP.

[34] Environmental Bill of Rights, 1993, SO c 28, s 103(1).

[35] Ibid, s 84(1).

[36] Supra note 13 at para 27.

[37] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 2(b), [Charter].

[38] Chris Tollefson, “Strategic Lawsuits Against Public Participation: Developing a Canadian Response” (1994) 73:2 Can Bar Rev 200 at 224.

[39] RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573 at para 33 (QL).

[40] R v Salituro, [1991] 3 SCR 654 at para 48 (QL).

[41] Supra note 10 at para 29.

[42] Ibid, at para 38.

[43] Ibid, at para 29.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Supra note 11 at 230.

[48] Ibid.

[49] Supra note 8 at 49.

[50] Supra note 16 at 50.

[51] Ibid, at 51.

[52] Bill 29, Protection of Public Participation Act, 4th Sess, 36 Leg, British Columbia, 2000, s 2(2).

[53] Supra note 8 at 53.

[54] Supra note 29 at 40.

[55] Ibid, at 41

[56] Ibid.

[57] Ibid.

[58] Supra note 5 at 168.

[59] Ibid.

[60] Ibid.

[61] Supra note 11 at 232.

[62] Supra note 5 at 168–87. See also supra note 6 at note 56.

[63] Supra note 11 at 232.

[64] Supra note 13 at note 56.

[65] Actions Involving Public Petition and Participation, NY CIV RIGHTS § 70–a(a).

[66] Ibid, § 70–a(b).

[67] Ibid, § 70–a(c).

[68] Supra note 4 at para 11.

[69] Supra note 13 at para 9.

[70] Ibid, at para 41.

[71] Ibid.

[72] Ibid.

[73] Ibid.

[74] Ibid.

[75] Ibid.

[76] Ibid, at para 42.

[77] Ibid.

[78] Ibid, at para 44.

[79] Ibid, at para 45.

[80] Ibid. at para 46.

[81] Ibid, at para 51.

[82] Chris Tollefson, “Strategic Lawsuits and Environmental Politics: Daishowa Inc. v. Friends of the Lubicon” (1996) 31:1 J of Can Studies at 121.

[83] Supra note 5 at 69.

[84] Supra note 13 at para 50.

[85] Ibid, at para 44.

[86] Ibid, at para 50.

[87] Ibid.

[88] Supra note 13 at para 53.

[89] Ibid.

[90] Section 135(1) of the Ontario Business Corporations Act requires a director to register his or her dissent or be deemed to have consented to a decision of the board.

[91] Grant v Torstar Corp, 2009 SCC 61 at para 28.

[92] Ibid, at para 141.

[93] Adam v Ward, [1917] AC 309 (HL) at 334.

[94] [1995], 2 SCR 1130 at para 143.

[95] Supra note 13 at para 74.

[96] MiningWatch Canada v Canada (Minister of Fisheries & Oceans), [2007] FCJ No 1249 (QL) [MiningWatch].

[97] Federal Courts Act, RSC 1985, c F-7, s 18.1(1).

[98] MiningWatch, supra note 96 at para 179.

]]>
http://lawiscool.com/2011/10/06/renewing-the-debate-on-anti-slapp-legislation-in-ontario/feed/ 1 3233
Pill Turns Man Into Gay Gambler http://lawiscool.com/2011/02/01/pill-turns-man-into-gay-gambler/ http://lawiscool.com/2011/02/01/pill-turns-man-into-gay-gambler/#comments Wed, 02 Feb 2011 03:11:28 +0000 http://lawiscool.com/?p=3098 In perhaps one of the most bizzare products liaiblity cases we’ll see in some time, Didier Jambart of France is suing GlaxoSmithKline over the company’s Parkinson’s drug, Requip (ropinirole),

The 51-year-old’s lawyers say their client’s behaviour changed radically after he was first administered the drug in 2003 for the illness, which causes tremors, slows movement and disrupts speech.

Didier Jambart, a married father-of-two who says he has attempted suicide three times, claims he became addicted to Internet gambling, losing the family’s savings and stealing to feed his habit.

He also became a compulsive gay sex addict and began exposing himself on the Internet and cross-dressing. His risky sexual encounters led to him being raped, his lawyers said.

The behaviour stopped when he stopped taking the drugs in 2005 but by then he had been demoted in his defence ministry job and was suffering from psychological trauma resulting from his addictions, his lawyers said

FOX News points out that National Institutes of Health warnings for this drug include:

• Tell your doctor if you have ever had an urge to gamble that was difficult to control and if you have or have ever had unexpected daytime sleepiness or a sleep disorder other than restless legs syndrome; high or low blood pressure; a psychotic disorder (mental illness that causes abnormal thinking or perceptions); or heart, liver, or kidney disease

• You should know that some people who took medications such as ropinirole developed gambling problems or other intense urges or behaviors that were compulsive or unusual for them, such as increased sexual urges or behaviors. There is not enough information to tell whether the people developed these problems because they took the medication or for other reasons. Call your doctor if you have an urge to gamble that is difficult to control, you have intense urges, or you are unable to control your behavior.

Legal Blog Watch points to the company’s product insert,

Some patients taking REQUIP get urges to behave in a way unusual for them. Examples of this are an unusual urge to gamble or increased sexual urges and behaviors. If you notice or your family notices that you are developing any unusual behaviors, talk to your healthcare provider

]]>
http://lawiscool.com/2011/02/01/pill-turns-man-into-gay-gambler/feed/ 2 3098
Warman v. Fournier et al: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases http://lawiscool.com/2010/05/04/warman-v-wilkins-fournier-balancing-disclosure-privacy-and-freedom-of-expression-interests-in-internet-defamation-cases/ http://lawiscool.com/2010/05/04/warman-v-wilkins-fournier-balancing-disclosure-privacy-and-freedom-of-expression-interests-in-internet-defamation-cases/#comments Tue, 04 May 2010 12:04:27 +0000 http://lawiscool.com/?p=2631 While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these entities generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of plaintiffs who seek these kinds of orders, courts have sought to craft approaches to evaluating applications for disclosure that strike an appropriate balance between the privacy interests of anonymous internet posters and the reputational interests of plaintiffs.

Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.

1. Background

The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.

The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.

This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.

2. Holding on Appeal

The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.

In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:

If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.

[Warman, at para. 33]

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; 
  • whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; 
  • whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and 
  • whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:

In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima faciecase standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers. 

In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.

[Warman, at paras. 41 – 42]

3. Implications

Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.

Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”): 

  • whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim; 
  • whether the applicant has established a relationship with the third-party from whom the information is sought, such that it establishes that the third party is involved in the acts; 
  • whether the third party is the only practicable source of the information; 
  • whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and 
  • whether the interests of justice favour obtaining the disclosure. 

[York University, at para. 13]

Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.

Originally posted on Defamation Law Blog

]]>
http://lawiscool.com/2010/05/04/warman-v-wilkins-fournier-balancing-disclosure-privacy-and-freedom-of-expression-interests-in-internet-defamation-cases/feed/ 1 2631
George Lucas Doesn’t Like Legal Bloggers… http://lawiscool.com/2010/04/06/george-lucas-doesnt-like-legal-bloggers/ Tue, 06 Apr 2010 06:50:53 +0000 http://lawiscool.com/?p=2585 Ewok! At times I feel like legal blogging is like Mark Hamill’s career. It will lead to Broadway and cartoon voiceovers rather than Bay Street or serious advocacy.

I look after my brother who is a big Star Wars fan. I’ve been to two Star Wars conventions because of him. So when Star Wars Celebration V (“SWCV”) was announced for Orlando, August 12 – 15, 2010, I thought it may be an opportunity to do some legal blogging among one of popular culture’s leading franchises. My brother had already booked the room and I had enough airmiles to make the trip cost effective.

When SWCV’s official web page was launched, I immediately applied for media credentials. As a law student and a legal blogger, the idea of writing stories of importance to the legal profession from the Star Wars universe was literally out of this world for me.

I pitched my involvement in terms of the great depository of legal material available at the convention. Issues of intellectual property, copyright, trademarks, contract, and entertainment law have obvious importance. The geek in me asked, “Could Luke sue in tort for having his hand sliced off by his father?” Or for that matter, “Could Anakin have a claim as well when he lost his right arm years before during a duel with Count Dooku?” Then there was the ever complicated contractual issue involving the clone armies produced by the Kaminoans for the Jedi Council, commissioned by a Jedi long since dead.

I waited for the three week turnaround for approval but nothing. I email the contact at Reed Exhibitions, the company running the convention, and who I must say was always prompt and professional. Eventually I was notified that my request for media credentials was declined. Being a bit of a tie-fighter, I appealed. Lucasfilm’s press department through Reed Exhibitions made it known that www.lawiscool.com did not match “the criteria that they’re looking for to provide a media badge to the event”.

What? I was at Indianapolis and Los Angeles in 2005 and 2007. My bar tabs nearly killed me. What did George Lucas have against law students or lawyers for that matter? Then the asteroid in the room hit me.

Reed Exhibitions is owned by Reed Elsevier who also owns Lexis Nexis, its legal publishing wing. The quicklaw of conspiracies entered into my mind. None of the six motion picture Star Wars films, nor the Clone Wars animation series, and not even the cult favourite Star Wars the Christmas Special featured lawyers. Sure they have bounty hunters, the Sand People, and Hutt mobsters but alas none from the learned profession.

George doesn’t like lawyers. The darth of examples are abundantly clear. It is like lawyers were the Jar Jar Brinks of the money-interested professions, trying to blow up the Star Wars world through the death star of blogging.

By experience, I understand that the Star Wars Celebration gatherings are a wretched hive of scum and villainy but then I went to law school. By Princess Leia’s slave costume, in Indianapolis I even had coffee at Starbucks across the street from the event with Barrie Holland, the English actor who played the Imperial Officer who quipped to Han Solo, “You Rebel Scum” in The Empire Strikes Back. A nice chap, we both were taking a time out from Star Wars fandom.

I’m sorry to droid on like this but I feel like a rebel challenging the dreaded empire. What does the Lucas brand have to lose by giving a legal blogger a media pass? I might increase the interest level in an active and professional market while addressing legal issues affecting more than just the Star Wars universe? I will never force the issue but I do look forward to a new hope.

The Author at Celebration IV in Los Angeles, 2007

]]>
2585
Discussing Quan v. Cusson and Grant v. Torstar http://lawiscool.com/2010/03/29/discussing-quan-v-cusson-and-grant-v-torstar/ Mon, 29 Mar 2010 15:41:10 +0000 http://lawiscool.com/?p=2567 The Ontario Bar Association (OBA) Young Lawyers Division has an interesting article by Karen Perron of Merovitz Potechin LLP discussing an event they held with Wendy Wagner of Gowling Lafleur Henderson LLP and Ron Caza of Heenan Blaikie LLP on the two recent SCC decisions in Quan v. Cusson and Grant v. Torstar,

After reviewing the decisions themselves, our speakers discussed the impact of the decisions on the daily practice of law in this area. Because a key component of the defence is proving that the journalist/writer was diligent in trying to verify their story, will this now invite a more formal exchange between the media and the subjects of the reports who are, arguably, the potential victims of defamation? Lawyers acting on the plaintiff side are now getting calls from their clients immediately after they are contacted by journalists. What is the best advice to provide to your client in this circumstance? How can you provide an opinion to your client on the merits of his or her case without first proceeding to discoveries to uncover the extent of the journalist’s due diligence? Of course, the counterargument is that responsible journalists should always take the necessary steps to verify their stories prior to reporting them in any case, including speaking to the subject of the report. Will this defence actually bring anything new to the manner in which good journalists function? However, will the responsible journalism defence now impact the public’s interest to receive news stories in a timely and effective manner? How long should a journalist wait to receive a plaintiff’s response in a world where news is a quickly perishable item?

Many other considerations also come into play. How will the defence evolve in light of the fact that the jury has been given the role of determining whether the publisher was diligent in trying to verify the allegations? Also, the defence has not been limited to the media. What effect will this have on bloggers and tweeters? These decisions also introduced the reportage defence, which is an exception to the repetition rule that otherwise holds that repeating a libel has the same legal consequences as originating it. How will the new reportage defence evolve? Will experts be required to testify on whether or not a journalist completed their due diligence? Will a standard of care emerge for journalists?

Good questions.  We’ll have to watch the case law to find out.

]]>
2567
Georgian Luger Dies as Olympics Commence… http://lawiscool.com/2010/02/12/georgian-luger-dies-as-olympics-commence/ http://lawiscool.com/2010/02/12/georgian-luger-dies-as-olympics-commence/#comments Fri, 12 Feb 2010 22:18:35 +0000 http://lawiscool.com/?p=2465 I am going to start this off by saying it is with a sense of sadness that I write this piece.

Twenty-one year old Georgian luger, Nodar Kumaritashvili, died in a training run today at the Whistler Sliding Centre in Whister, B.C.  It has been reported that he was travelling in excess of 140 km/h before the incident occurred.

A report by the Toronto Star said “he didn’t have a chance.”

I have seen the video (after doing some hunting around), and the impact was horrifying to put it mildly.

However, since this is a law site.  Perhaps this may be too soon, but this incident is definitely going to need some analyzation.  The Toronto Star also reports that this specific luge course has a particularly “nasty reputation.”

CTV luge analyst Chris Wightman said experienced lugers aren’t having problems on the course but that less experienced riders are finding it hugely challenging.

Had Vancouver Olympic Committee (VANOC) and the International Luge Federation ensured that this was a safe course?  Was the fact that he had previously crashed on Wednesday play a factor into whether an action is brought against the committee?

Questions like these will reveal themselves in the coming days, but for the time being, our thoughts here (and I’m sure I speak for everyone) are with the family, friends, and luging community.

RIP Nodar.

]]>
http://lawiscool.com/2010/02/12/georgian-luger-dies-as-olympics-commence/feed/ 1 2465
Liebeck v. McDonald’s Restaurants – Redux http://lawiscool.com/2010/02/07/liebeck-v-mcdonalds-restaurants-redux/ Sun, 07 Feb 2010 17:40:43 +0000 http://lawiscool.com/?p=2452 Aimee Green of The Oregonian reports,

An attorney for Aurora Hill filed suit in Multnomah County Circuit Court Wednesday afternoon — stirring memories of a controversial 1994 suit in which a jury awarded $2.86 million to an Albuquerque, New Mexico woman who spilled scalding-hot coffee on herself, suffering severe burns that required hospitalization. Upon appeal, the parties settled for an undisclosed amount.
…She went into “nervous shock,” endured pain and has scarring. She seeks $7,182 for her pain and suffering, plus another $318 for lost wages and medical expenses.

See our previous posts:

]]>
2452
Grant v. Torstar and the defence of responsible communication: implications for bloggers and users of other online media http://lawiscool.com/2010/01/25/grant-v-torstar-and-the-defence-of-responsible-communication-implications-for-bloggers-and-users-of-other-online-media/ http://lawiscool.com/2010/01/25/grant-v-torstar-and-the-defence-of-responsible-communication-implications-for-bloggers-and-users-of-other-online-media/#comments Mon, 25 Jan 2010 14:00:48 +0000 http://lawiscool.com/?p=2416 In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters of public interest” (the “Defence”). The Defence allows defendants in libel cases where statements of fact are at issue to evade liability if they can show that they acted responsibly in reporting on a matter of public interest, even if the statements of fact are untrue. Prior to the decision, defendants could not avoid liability in these cases unless they showed that the statement was substantially true (the defence of justification), or that the statement was made in a protected context (the defence of privilege).

Importantly, the Defence applies not only to journalists and print-based publishers – the types of defendants in Grant and Quan – but also to non-journalist bloggers and users of other online media:

[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree … that the new defence is “available to anyone who publishes material of public interest in any medium”. [Grant, at para. 96]

[Emphasis added]

Although the extension of the Defence to non-journalist bloggers and users of other online media is an important recognition of the growing relevance and legitimacy of these groups, the Defence is – at least currently – unlikely to protect most members of these groups. To gain the protection of the Defence, the defendant must establish two elements: (1) that the publication is on a matter of public interest; and (2) that the publication was responsible, in that the defendant was diligent in trying to verify the allegation. The trial judge will determine the first element. If the judge concludes that the first element is met, the jury will determine the second element, having regard to several factors:

  • the seriousness of the allegation;
  • the public importance of the matter;
  • the urgency of the matter;
  • the status and reliability of the source;
  • whether the plaintiff’s side of the story was sought and accurately reported;
  • whether the inclusion of the defamatory statement was justifiable;
  • whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and
  • any other relevant circumstances

In assessing whether the defendant was diligent, the jury will be guided by “established journalistic standards”:

[M]any actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]

[Emphasis added]

This indicates that the same journalistic standard must be applied to every defendant irrespective of whether or not they are journalists. As a result, the Defence will likely not apply to non-journalist bloggers and users of other online media unless they perform the due diligence expected of a journalist in the circumstances.

The problem for many members of these groups is that they are generally not guided by established journalistic norms. Although they may approach online publishing in good faith and with a level of diligence reasonably expected of non-journalists, this level of diligence is unlikely to meet the required journalistic standard. For example, although journalists will generally make a point of seeking the plaintiff’s side of the story and speaking directly to witnesses and experts, non-journalist bloggers – who are generally unpaid for their efforts – will rarely have the time, resources, training, or willingness to do so. As one American commentator argues,

blogging and journalism clearly differ. The former ‘implies that a disinterested third party is reporting facts fairly’ (Andrews, 2003: 64). Blogs are ‘unedited, unabashedly opinionated, sporadic and personal’ (Palser, 2002) – in many ways, the antithesis of traditional US journalism. Some say that is the best thing about them. ‘Journalism is done a certain way, by a certain kind of people,’ but bloggers “are oblivious to such traditions” (Welsh, 2003). [Jane B. Singer, “The political j-blogger: ‘normalizing’ a new media form to fit old norms” (2005) 6(2) Journalism 173 at 176]

[Emphasis added]

Even if a non-journalist blogger or user of other online media does engage in the level of diligence required to meet the journalistic standard, they may unknowingly fail to do so in a way that produces a strong record of evidence from which a court can conclude that they did act diligently. As a result, many of these defendants may simply not have access to the protection of the Defence.

Nonetheless, Grant does not foreclose the possibility that courts will apply a different diligence standard to non-journalist bloggers and users of other online media as the “norms of new communications media” evolve. Although the court isn’t clear on this point, these groups might be able to gain the protection of the Defence in future cases even if they haven’t performed their diligence in the same way that a traditional journalist would have:

While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]

[Emphasis added]

Even if the standard applicable to these groups does not shift to allow them to gain the protection of the Defence, juries – who have been tasked with the responsibility for assessing whether the defendant was diligent – may be sympathetic to these groups and apply the journalistic standard less rigidly.

In summary, although the Defence extends to non-journalist bloggers and users of other online media, many members of these groups are unlikely to be protected by the Defence because it requires that they performed the due diligence expected of a journalist. Nonetheless, the law does not necessarily foreclose the possibility that courts will apply a different diligence standard to these groups in future cases, or that juries will less rigidly apply the existing journalistic standard.

Originally posted on Defamation Law Blog

]]>
http://lawiscool.com/2010/01/25/grant-v-torstar-and-the-defence-of-responsible-communication-implications-for-bloggers-and-users-of-other-online-media/feed/ 1 2416