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.
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