Anti-SLAPP Legislation Generally
A SLAPP, or Strategic Lawsuit Against Public Participation, is brought to silence an individual or business who has criticized the plaintiff. Usually, the plaintiff has greater financial means than the individual who criticized them and it is perceived that the lawsuit was started in order to stop or punish the defendant from expressing his or her opinion.
In 2015, the Ontario government introduced “anti-SLAPP” legislation. The intention of the anti-SLAPP legislation is to provide a process for these lawsuits to be dismissed in a quick and less expensive manner. On October 15, 2021, Tanya Walker discussed this legislation on CTV’s, Your Morning. The link to watch the clip is here.
The anti-SLAPP provisions are found in s. 137.1 of the Courts of Justice Act. Generally, if a defendant wants a lawsuit dismissed under the Anti-SLAPP provisions, the defendant must prove that the proceeding arises from an expression made by the defendant with respect to a matter of public interest. Public interest has been interpreted to mean sharing a valid opinion about directly interacting with a business or person.
Once there is a finding of public interest, the lawsuit will be dismissed unless the plaintiff can prove the plaintiff’s claim has substantial merit, the defendant has no valid defence and that the harm suffered by the Plaintiff is sufficiently serious that the public interest in permitting the proceeding outweighs the public interest in protecting that expression. It will not be sufficient for a plaintiff to show general damages, in a nominal sense. Harm has been interpreted to mean substantial monetary harm, reputational harm or mental distress. There must also be a link between the harm suffered and the defendant’s actions.
Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555
In this case, a married couple hired a window company to install windows and a door. Following the installation, there was a leak and a dispute arose regarding the source of the leak. Another contractor that was later hired by the married couple informed them that the leak was due to a defective product that was installed by the window company. The couple posted a negative review of the company on Google, Yelp, and Homestars. The Google review was removed after the company served the couple with a libel notice.
The window company sued the couple alleging their comments were defamatory. The couple sought and won their request for the lawsuit to be dismissed due to the anti-SLAPP provisions.
The Court stated that discussion among the consuming public online about the quality of a company’s goods and services is a matter of public interest and decided that the company brought the lawsuit to bully the couple into removing their reviews in order to control the public narrative about the business.
Although the Court determined that the lawsuit could win because it was based on defamation, it also believed that the couple had viable defences of fair comment and truth available to them. This was largely because the new contractor told them the leaks were caused by a defective product. The Court also noted that the window company did not produce any evidence, such as an expert report, to show that the leaks were caused by anything other than their products.
The Court noted that if the company was successful in the defamation action, their damages would be modest at best.
The Court dismissed the company’s lawsuit and ordered them to pay 100% of the defendants’ legal fees (called costs on a full indemnity basis) of $164,186.76. Generally speaking, in a lawsuit, the successful party is entitled to 60% – 80% of their legal fees. However, the anti-SLAPP provisions mandated recovery of 100% of the defendant’s legal fees, which is unusual, if the defendant is successful.
The Defendants were also awarded damages in the amount of $2,500.
The takeaway is that if you are going to post a review online, try to ensure that you can back up your opinion with evidence. Also, if you are going to sue someone for posting an opinion about you or your business online, be aware of this law and that you may need to demonstrate that the comments posted are completely untrue and unjustified.
If you have been defamed and need a defamation lawyer, contact the civil litigators at Walker Law.