You can’t always say that on TV… Updated, with analysis of Ontario anti-SLAPP law

For decades, rich and famous people who felt they’d been wronged by the media tried to have their libel cases heard in Canada because our courts were so plaintiff-friendly. Journalists, whether they wrote about rock stars or their local town council, lived with libel chill: being hit with long, expensive lawsuits that were usually dropped just before trial.

That’s changed over the last few years. The Charter of Rights gave written constitutional protection to freedom of expression. The courts began working expression rights into the Common Law.

The Supreme Court, in Grant v Torstar, codified the right of journalists to engage in “responsible communication — essentially, fair journalism. The courts also accepted the idea of “journalistic privilege”. In its simplest form, it guarantees the right to tell people facts that they have an interest in knowing, and a right to know.

Some journalists mistake Grant v Torstar as a free pass. It’s not. Journalists have to give the people targeted by their investigations a fair chance of defending themselves. That means no demands for comment at the last minute, no playing fast and loose with allegations, no malice.

Cyberlibel is almost never covered by responsible journalism. Neither is ambushing a target. The more the urgency and importance of a story, the more likely a responsible communication defence will work.

Take away 1: “Responsible communication” is lawyer talk for fair journalism. If the subject of a story is not treated fairly and the story is wrong, it’s not “responsible communication”.

There’s always been a balancing act: the press’s free expression versus honest people’s right to a clean reputation. That’s why free expression laws have co-existed with strong libel laws.

Policy-makers believed truth should always be the defining factor: if a journalist published an embarrassing fact about someone, and that fact was true, the journalist wasn’t breaking a libel law. If what the journalist published was false, a court would make them pay.

But proving truth can be expensive, and the onus of proof in Canada is on the publisher – the opposite of the onus in criminal and most civil cases. That’s one of the aspects of the law that contributes to libel chill. So in this country, the right to publish news and opinion came with serious risks. A libel suit could bleed small and medium-sized publishers dry.

And if the journalists are in the business of collecting scalps – Gotcha! Journalism – and screw over their victims, the defence of responsible communication is likely off the table. Journalists who simply won’t take denials seriously and who don’t check facts should probably make sure their libel insurance is paid up.

Take Away 2: SLAPP laws protect political expression, not shoddy journalism.

Charter interpretation and new provincial laws against filing frivolous lawsuits to shut people up have changed the game. SLAPPs – strategic lawsuits against public participation – have been outlawed in Ontario and Quebec and a new law is in the works in British Columbia.

Ontario’s anti-SLAPP law is tough. First, it protects public interest expression by giving SLAPP victims a quick way to dispose of bully lawsuits. Second, and at least as important, the law whacks SLAPPers with the highest tariff of court costs. Judges can even give damages to the people who were being sued.

Most lawyers expected this law to be used in high-profile cases and those involving media. Surprisingly, most reported SLAPP cases in Ontario have not involved media litigants. Some were filed by political factions in municipalities. The most important case was a lawsuit filed by a developer against an environmental group.

In 1704604 Ontario Ltd. v Pointes Protection Association, 2018 ONCA 685, an environmental group outside Sault Ste. Marie was sued for breach of contract for failing to keep a promise to a developer not to oppose their subdivision plan. The trial court judge ruled the developer’s contract rights trumped the environmentalists’ speech rights.

The Ontario Court of Appeal decided otherwise. It ruled in favour of the environmentalists and handed down decisions in five other SLAPP cases. Now, lawyers know what’s expected in SLAPP motion hearings, which are supposed to be held early in the litigation process.

In Pointes Protection the Ontario Court of Appeal found: “Under s. 137.1(4)(b) [of the Courts of Justice Act], the plaintiff (responding party) has the persuasive burden. The plaintiff must satisfy the motion judge that the harm caused to it by the defendant’s expression is “sufficiently serious” that the public interest engaged in allowing the plaintiff to proceed with the claim outweighs the public interest in protecting the defendant’s freedom of expression.”

Once a judge finds the expression to be in relation to a matter of public interest, the onus under s. 137.1(4)(a) of the Courts of Justice Act shifts to the responding party (the plaintiff in the original action) to prove “the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding.”

The people being sued for libel must, at this stage of the process, put forward a defence, although it need not be a Statement of Defence. In Platnick v Bent, 2016 ONSC 7340, the motions judge made it clear that he did not expect the defence to be so detailed that it effectively “front loaded” the litigation. He did want to see evidence that would convince him that the defendants could make a serious defence at trial.

Platnick was a defamation lawsuit filed by an expert witness doctor (Platnick) who was criticized on a legal message board and in emails by trial lawyer Maia Bent. She claimed Dr. Platnick was incompetent and warned other lawyers not to hire him.

The judge who heard Bent’s SLAPP motion found the Ontario legislature intended the courts to place the burden of proof under s. 137.1 of the Courts of Justice Act  “in a middle ground somewhere between the civil standard of proof (which is too high a standard to apply to so summary a proceeding) and the frivolous and vexatious pleading standard so familiar to our courts.”

The hefty costs awarded to Ms. Bent when the judge ruled against Dr. Platnick were a clear message people whole file SLAPP suits should be made to pay. The Ontario law clearly states that its purpose is to foster expression, which fits with the Supreme Court’s clear message in Grant v Torstar that Canada places a very high value on political expression.

But this isn’t absolute.

I argued a SLAPP motion in Owen Sound on March 24, as counsel to a party in this case. I don’t want lawyers to think SLAPP motions are a cakewalk. It was a tough day in court, with four lawyers arguing very complex law. And it didn’t help that the Ontario Court of Appeal came out with another decision on SLAPP law while we were in court. In Levant v Day, Doherty J, who has written the important SLAPP decisions, fine-tuned the description of “public interest”. Here’s Nora Parker’s analysis of that decision.

Takeaway 3: If there’s a real libel case – not just a quibbling over small facts – start prepping for trial.

Take a look at this month’s Bondfield v Globe and Mail, 2019 ONCA 168, in which the Court of Appeal overturned a Superior Court decision, setting aside a motion judge’s decision that the Globe was the target of a SLAPP suit. The appeal court found there were issues worth hearing at a trial.

“There are powerful arguments to be made on both sides of the public interest balancing required in s. 137.1(4)(b) (of the Courts of Justice Act),” the appeal court found.

“In the end, I view this as a case in which Bondfield has a legitimate argument that it has been defamed and suffered significant damages as a result of the Globe articles. The Globe has legitimate arguments, both that the content is not defamatory and that it has defences to any parts that are defamatory. Unlike SLAPP suits which reek of the plaintiff’s improper motives, claims of phantom harm, and bullying tactics, this litigation smells of a genuine controversy. It should be tried on its merits.”

The Globe must now defend the lawsuit in court and, to add to the sting, lost the $500,000 in costs awarded by the lower court.

BC had a similar law, which was passed in the dying days of the old NDP government and repealed by Christy Clark’s Liberals.

After some observers, including me, pushed for its return, the new NDP government of BC has a new SLAPP law in the works. Right now, the bill is at second reading in the legislature.

SLAPPs are not a license to libel. Malice, gross error and recklessness will kill any SLAPP defence. But libel chill – the fear of long, worthless but expensive litigation – has suffered a setback – as long as journalists act professionally.