Category: Litigation

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Corporate & Commercial Law Defamation And Social Media Litigation

Anti-SLAPP Lawsuit Update

In an earlier post, we discussed Anti-SLAPP motions in relation to an ongoing matter between Subway and the CBC. In that case, the CBC had conducted an investigation into Subway and the food the company marketed as 100% chicken. Following an 8-month investigation, the CBC concluded that the food only contained 50% chicken meat, while the remainder consisted of what appeared to be soy product. The CBC aired the results of its investigation, and Subway publically denied the claim. Further, the fast-food chain launched a $210 million dollar defamation lawsuit against the broadcaster. Earlier this year, the CBC filed what is known as an ‘Anti-SLAPP’ motion to have the suit dismissed under s. 137.1 (3) of the Courts of Justice Act (the ‘Act’). This section of the Act is aimed at restricting lawsuits strategically filed to protect the plaintiff from criticism on matters of public interest, otherwise known as Strategic Lawsuits Against Public Participation.

On November 22, the Ontario Superior Court of Justice released a decision in which it allowed the CBC’s motion and dismissed Subway’s lawsuit.

The Criteria Needed to Establish SLAPP Litigation

As discussed in the previous post, in order to be successful in an anti-SLAPP motion, the motioning party must demonstrate that the lawsuit surrounds a form of “expression” which was made in relation to a “matter of public interest”.

Public Interest

While Subway argued that the public would have little interest in specifics relating to the DNA breakdown of various ingredients and would be more concerned with a “consumer-oriented assessment of chicken or animal protein content”, the court disagreed. While many people may not regularly check the scientific breakdown of the food that they ingest, the court found that:

There are few things in society of more acute interest to the public than what they eat. To the extent that Subway’s products are consumed by a sizable portion of the public, the public interest in their composition is not difficult to discern and is established on the evidence.

Further, the court emphasized the importance of protecting the industry of investigative journalism as a whole and noted that there was a public interest in protecting those involved in the profession from an undue burden relating to litigation stemming from their work.

Substantial Merit

Once the CBC had established the public interest, the onus shifted to Subway to demonstrate that its claim against the CBC had substantial merit. Given that Subway was an international fast-food chain known almost solely for being a purveyor of food, the CBC’s claims were not insignificant. They would be likely to have a major impact on Subway’s reputation on a national and potentially global scale.

Subway was not required to demonstrate that it had a winning case to satisfy this criterion. It simply had to prove that it had “more than a mere chance of winning”. Subway was successful in this regard. It provided evidence demonstrating the reach of the CBC’s report, and also obtained its own expert evidence relating to the makeup of its chicken to counter the investigation. In the evidence provided by the fast-food chain, the laboratory results showed significantly less plant protein in the chicken than what was reported by the CBC (1% to the CBC’s 40% or more).

Responsible Communication

With Subway establishing substantial merit, the CBC then turned to a defence of its broadcast under the banner of ‘responsible communication’. To do so effectively, the CBC had to satisfy a two-part test:

  1. The report must have been in the public interests; and
  2. The CBC must have been reasonably diligent in establishing the validity of the claims in the report.

The report had already been deemed by the court to be a matter of public interest, so the CBC moved on to part two of the test. To satisfy this arm of the test, the CBC explained that it had retained Trent University to complete the DNA tests, and that the chicken had repeatedly come back showing significant plant protein in its makeup. The CBC then retained another independent tester to assess Trent University’s results. Lastly, the CBC provided Subway with the results and gave the company ample time to respond before airing the results publicly. In a follow-up piece, the CBC included Subway’s strong disagreement with the CBC’s findings.

The court found that while there may have been issues with Trent University’s methodology, the CBC itself had exercised due diligence in obtaining the information used in its report.

The Balance of Harm

The final determination in deciding whether to dismiss a potential SLAPP lawsuit is to assess the balance of harm between the parties. In the case at hand, the CBC positioned itself providing a service: to inform the public about matters of significant importance; in this case, consumer goods, and truth in labelling items meant for public consumption. The court found that while the investigation may have a broad impact on Subway as an organization, any impact in that regard was outweighed by the public interest in freedom of the press, and the right of the public to know the truth about items meant for their consumption. As a result, Subway’s case against the CBC was dismissed.

It is important to note that Subway has an ongoing action against Trent University, the lab that provided the CBC with the initial results pertaining to the genetic makeup of the chicken. This action was not dismissed under the Act.

At Baker & Company, we are both everyday trusted advisors and problem solvers. Our team of skilled and experienced litigation lawyers are cherry-picked for their ability to analyze cases, counsel clients, and examine and present evidence at trial.  Our litigation team has dealt with all kinds of litigation matters in courts across Ontario and has significant experience at both the trial and appellate levels. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Litigation Probate & Estate Administration Wills & Estates

Declaratory Relief and Limitation Periods

We have posted previously on the topic of limitation periods as they pertain to civil litigation in Ontario, however, we did not discuss the specific instance of an action seeking declaratory, rather than consequential, relief. A recent Ontario decision was faced with the question of whether an application was outside the limitation period, and whether the relief the applicant sought was purely declaratory.

What is the Difference Between Declaratory and Consequential Relief?

Consequential relief is what an applicant is generally seeking when bringing an action in court. They seek an order that something will happen; payment of damages, an injunction being granted, or an award of support. They have brought the action in an effort to bring about a certain consequence.

Declaratory relief is when an applicant presents a legal question to the court seeking only a declaration with respect to the parties’ rights. There is no consequence sought beyond the court’s opinion on the matter.

A Recent Decision

Limitation periods, typically a two-year period in Ontario for most civil actions, do not apply to matters that seek a purely declaratory order. This is not controversial. A recent decision, Piekut v. Romoli, required the court to make a determination as to whether an action was statute-barred due to being outside the limitation period. The sole basis for this determination was whether the relief sought was consequential or solely declaratory.

The case involved two of the three daughters of a deceased man. Each of the man’s daughters had been appointed as Estate Trustees under their father’s Will. Each of the daughters was also a beneficiary under the Will, which had stated that the residue of the estate was to be divided equally among the deceased’s three daughters, one of whom was not a party to this action.

However, after the death of her father, the respondent daughter presented a codicil which she claimed her father had executed two years before his death. In this codicil, the father gifted two of his properties to the respondent daughter alone.

The plaintiff daughter and the third sister were unsure how to handle the codicil, which they felt was not valid. Due to the disagreement between the daughters, they did not attempt to probate the Will for several years after their father had passed. Eventually, the plaintiff brought an application seeking an order as the validity of the codicil so that she could carry out the administration of the estate. The respondent sought to dismiss her sister’s application as it had been brought outside the two-year limitation period.

The Court’s Findings

The key issue in the case became the determination of whether the relief sought was purely declaratory or if it involved a degree of consequential relief. The court noted that no action had ever been brought to prove the validity of the codicil one way or the other. Had the respondent brought an action to prove the validity of the codicil and the plaintiff had challenged it, the relief sought would have been consequential, with each party seeking a specific outcome from the court. In that case, the limitation period would have applied.

However, in the case at hand, the applicant did not seek that the court award the properties in question to anyone in particular. She simply sought a declaration as to the validity of the codicil. Once a declaration was made, she would move on to the administration of the estate in accordance with the court’s determination. While there was no question that consequences would flow from the declaration of the court, the plaintiff did not seek one consequence over another. This was the key distinction for the court.

The two-year limitation period will still apply to most civil actions, however, it is important to understand the difference between the types of relief that may be sought. Seeking a declaration rather than an outcome could be a way to resolve an ongoing matter than has progressed beyond the statutory limitation period.

At Baker & Company, our Toronto estates and litigation lawyers can help you establish an estate plan tailored to your needs, or bring or defend a challenge in court. We have extensive experience and expertise in providing you with estate planning advice and implementing your desired plan. We also rely on our broad base of experience and expertise to provide you with exceptional legal guidance in any litigation matter when necessary. Call us at 416-777-0100 or contact us online for a consultation.

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Estate Planning, Will Planning, Succession Planning & Inheritance Planning Litigation Probate & Estate Administration Wills & Estates

Dependant Relief Claim

When a person passes away without a will, or intestate, the distribution of the estate’s assets is determined by Part II of the Succession Law Reform Act (the “Act”). For example, a spouse will be first in line, followed by children, and so on. However, it is important to note that this part of the Act only applies to married spouses. What happens in a case where the deceased had a common-law spouse at the time of their death? What are the entitlements owing to that spouse, if any?

Dependant Relief Claims Explained

Common-law spouses retain a right to claim a portion of their spouse’s estate in the form of a dependant’s relief claim. These claims are governed by Part V of the Act. In order to make a successful claim for dependant’s relief, a spouse must be able to demonstrate that they were in a common-law relationship with the deceased at the time of their death. In cases where the deceased did have a will, the spouse must also establish that the will failed to provide adequate provisions for their ongoing support.

Once the spouse has established their right to a claim, the court must then determine the amount of the award. To do this, the court will review a number of factors set out under s. 62, including the following:

  • the dependant’s current assets and means;
  • the dependant’s capacity to contribute to their own support;
  • the dependant’s age and physical and mental health;
  • any agreement between the deceased and the dependant;
  • the claims of any other dependant of the deceased; and
  • the length of time the spouses cohabitated.

These are just some of the factors enumerated in the Act. The full list can be viewed under s. 62(1) of the Act.

A Recent Example

A recent decision of the Ontario Superior Court examined a classic scenario of a common-law spouse’s claim for dependant’s relief. In the case at hand, the deceased died intestate and was survived by an adult child and his common-law spouse. Under the laws of succession, the entire estate, valued at $2,851,125.77, would have gone to the daughter of the deceased. The common-law spouse brought a claim for dependant’s relief, seeking an award of half the value of the estate. Specifically, she sought an absolute transfer of the farm property where she resided with the deceased, which was valued at $580,000.00. In addition, she sought to keep all funds and assets she had received to date, which totalled approximately $570,000.00 and then a further cash payment of approximately $275,000.00. This would leave both the applicant and the respondent with approximately equal shares in the estate.

At the time of her spouse’s death, the applicant was 73 years old. She had no physical or mental health issues and was not employed. She resided on a farm property owned by the deceased, where she had lived and worked since 1991. She had originally met the deceased when he hired her to work as his housekeeper, however, a romantic relationship developed over time. Tax records indicated that the pair had declared themselves to be common-law spouses beginning in 1999.

Records showed that the applicant had paid into the household expenses over the years, including veterinary bills, small tools for the farm, home appliances, and food and clothing for the couple.

The court examined what the applicant would require in order to maintain her own care, with the contemplation of the applicant eventually relocating to a one-bedroom accommodation in a nursing care facility. Relying on expert evidence, the court found that the applicant would be likely to suffer a shortfall if she was entitled only to the assets already in her possession. Given that the estate was sizeable enough to provide for the applicant, the court found that the deceased had failed to provide adequate support.

Once the applicant had successfully established a claim against the estate, the court then turned to the amount. While the court considered providing a life estate in the farmhouse for the applicant, it found that there was a contentious relationship between the applicant and the deceased’s daughter, and a life estate in the home would prolong the need for the parties to interact with each other. Under the circumstances, the court held that both parties would be better served by ordering a transfer of the farmhouse to the applicant.

The court ultimately found that a judicious spouse would have provided for the applicant’s care and her ability to live in relative comfort for the remainder of her life. Given that, the court ordered that the applicant keep the assets already in her possession in addition to the transfer of the farmhouse, and also awarded a further payment of approximately $275,000.00. The applicant received everything she had requested, which amounted to half the value of the estate.

Takeaways

This case serves to illustrate how the law can help to make up for a shortfall when a person dies without properly providing for a dependant. Just because a person has been left out of the will, or in a case where there was no will at all, it does not mean that they are without options. If you find yourself facing a similar circumstance, seek the advice of a skilled wills and estates lawyer.

At Baker & Company, our Toronto estate planning lawyers can help you establish an estate plan tailored to your needs, no matter your current family status. We have extensive experience and expertise in providing you with estate planning advice and implementing your desired plan. Should you find yourself in the position of challenging an existing will or estate, our lawyers can also represent you through the litigation process. Call us at 416-777-0100 or contact us online for a consultation.

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Litigation

Limitation Periods & Civil Litigation: An Overview

A key factor to consider before initiating a civil claim in an Ontario court is whether the limitation period for the claim may have expired. Limitation periods are governed by the provincial Limitations Act, 2002 (the “Act”), which came into force in 2004. The Act attempts to bring consistency to limitation periods for all civil claims in the province, however certain exceptions and other factors do still allow for a degree of uncertainty. For the purposes of the Act, a “claim” is defined as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”.

The Basic Limitation Period

In Ontario, the basic limitation period for a civil claim is two years from the time the damage or loss was discovered by the plaintiff. However, determining the date the period begins to run is not as simple as it sounds. The day a claim is discovered is the earliest of the following occurrences:

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

It is not enough to simply say that two years have passed since the act or omission that caused the loss or injury occurred. It must be two years from the date that the injured party became aware of the loss, the act or omission that caused it, and the person or entity responsible. The court also has the discretion to find that a reasonable person would have become aware sooner, given the same circumstances. If this is the case, the court will find that the two-year limitation period began to run on the date a reasonable person would have known.

The Ultimate Limitation Period

Considering the fact that the clock does not begin to run on the basic limitation period until the basis of the claim is discovered, this could leave defendants vulnerable to litigation indefinitely in some cases. In order to provide some certainty in this area, the Act also includes a provision establishing an ultimate limitation period of 15 years from the date that the act or omission occurred, after which period a claimant is barred from bringing an action in court. Discoverability is not a factor for this period – the clock begins to run at the time of the act or omission responsible for the loss or injury.

Exceptions to the Limitation Period

There are a few exceptions to the Ontario civil limitation periods. Specifically, limitation periods can be extended in cases where:

  • The claimant in an action is under the age of majority at the time of the act or omission, or when it is discovered; and
  • When the claim is against a municipality in Ontario or against the provincial government.

If you believe that you have a claim against another party, it’s important to speak to a knowledgable lawyer as soon as possible, in order to protect your right to bring an action within the time periods established under the Act.

At Baker & Company, we take the time to meet with you and understand your unique needs in order to offer solutions to the diverse problems you are facing. We rely on our broad base of experience and expertise to provide you with exceptional legal guidance in any litigation matter. Call us at 416-777-0100 or contact us online for a consultation.

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Defamation And Social Media Litigation

Anti-SLAPP Motions and Defamation Litigation

In 2017, the CBC aired the results of an investigation conducted by journalists that examined whether some chicken products marketed and sold by Subway, an international fast food franchise, may not have been comprised of 100% chicken meat. The CBC’s conclusion, following an 8-month investigation, was that some products the chain had labelled as chicken contained only approximately 50% chicken DNA (much of the remainder appeared to be comprised of soy product). After the piece aired, Subway publicly disputed the claim and filed a $210 million defamation lawsuit against the broadcaster. The CBC, in the statement of defence, claimed that the chain had been given the opportunity to respond to the claims prior to the piece going public, and failed to do so. They also claimed that the restaurant chain had failed to provide evidence to contradict the results of their independent investigation.

In June of this year, the CBC filed a motion to have the suit dismissed under s. 137.1 (3) of the Courts of Justice Act (the ‘Act’), which is aimed at restricting lawsuits strategically filed to protect the plaintiff from criticism on matters of public interest.

What is Anti-SLAPP legislation?

The Protection of Public Participation Act (the ‘PPPA’) which came into force in Ontario in 2015, aims to curb lawsuits launched specifically to silence public discourse on matters important to the public interest. The passing of the statute amended several pieces of existing legislation, primarily through the incorporation of ss. 137.1-137.5 of the Act, which created a new pre-trial procedure allowing defendants to move for an order dismissing a claim arising out of a defendant’s expressions on matters of public interest. The stated purpose of the section is as follows:

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

The Test for Identifying a SLAPP Lawsuit

A 2017 decision of the Ontario Superior Court of Justice helpfully set out a clarification of the test for courts considering a motion under s. 137.1(3) of the Act. In deciding on the motion, brought by a Toronto-area school teacher facing a defamation lawsuit over social media posts she had made speculating on the toxic effects of changes to regulations surrounding a local landfill site, the judge found that the original onus of proof under a SLAPP motion falls to the applicant. The applicant must first establish that the suit surrounds a form of “expression” which was made in relation to a “matter of public interest”.

If an applicant can establish both elements described above, the motion must be granted, unless the respondent can establish the criteria set out in s. 137.1(4) of the Act:

A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

  • there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and 

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

The responding party must satisfy the court that each of the elements above is present in order to avoid a dismissal. In the case at hand, the judge concluded that the applicant had satisfied her part and that the respondents had failed to satisfy theirs. Specifically, they failed to establish the first element, demonstrating that the proceeding had ‘substantial merit’. The corporation had demanded a retraction and apology from the applicant prior to the lawsuit, and she had fully complied, retracting her comments and posting an apology viewable by everyone who had seen her original comments. Following that, the court reasoned, there was no further benefit to be gained via the proceeding as no further harm existed. As a result, the case was dismissed.

Corporations and Individuals Should Review Proposed Defamation Suits with Experienced Counsel

Anti-SLAPP legislation aims not only to put a stop to existing litigation brought by corporations or individuals with considerable resources in order to silence discourse on matters of public interest but also to prevent the courts from being used to intimidate others from potentially speaking up. Defamation lawsuits can have a chilling effect on whistleblowers who fear being targeted and facing severe financial repercussions, and litigants have used this to their advantage in the past. This legislation aims to protect the freedom of expression of those seeking to shed light on matters in which the public has a vested interest. To avoid expending unnecessary time and expense, parties seeking to file a lawsuit to counter what may be perceived as libel or slander are strongly advised to discuss potential pitfalls with respect to anti-SLAPP legislation with experienced litigation lawyers before proceeding.

As for the Subway case, the CBC’s motion to dismiss is set to be heard on September 24, 2019. We will continue to watch this case and will update as appropriate.

At Baker & Company, we are both everyday trusted advisors and problem solvers. Our team of skilled and experienced litigation lawyers are cherry-picked for their ability to analyze cases, counsel clients, and examine and present evidence at trial.  Our litigation team has dealt with all kinds of litigation matters in courts across Ontario and has significant experience at both the trial and appellate levels. Call us at 416-777-0100 or contact us online for a consultation.