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B’nai Brith (BB), a charitable organization supporting the Jewish people of Canada and human rights causes in general, recently brought a motion seeking to dismiss an action for defamation brought against it by the Canadian Union of Postal Workers (CUPW). BB claimed that the action should be classified as a SLAPP action, aka strategic litigation against public participation, and therefore dismissed. The court has denied the motion, allowing the action for defamation to go forward.

A Serious Accusation of Aligning With Terrorism Supporters

CUPW, as part of its ongoing work, regularly works with similar unions in foreign jurisdictions. One such organization is a union supporting Palestinian postal workers. CUPW has also taken a polarizing stance supporting the boycott of Israeli products, due to the union’s stance on the ongoing clash between the two countries. A worker and CUPW member brought a complaint with respect to CUPW’s public position, and as a result, BB began looking into CUPW’s activities and associations.

When investigating social media accounts associated with the Palestinian union, BB found a page maintained by a senior member of the union. On the page were messages praising individuals involved in terrorist activity as heroes. BB sent this information to CUPW and called for a comment, advising that BB would be making the information public. Five days later, BB released the first in a series of press releases, with the headline, “Canadian Postal Workers Align with Pro-Terrorism Palestinian Union”. In the press releases, it claimed that CUPW had aligned itself with terrorist-supporting organizations and with the “path of violence and extremism”.

CUPW brought an action for defamation against BB, claiming that BB’s actions were malicious. CUPW pointed out that it has made public, via the union’s website, its support of a peaceful two-state solution to the conflict in the middle east as well as its stance against terrorism, violence and antisemitism. CUPW further alleged that the claims against the Palestinian union were untrue and that BB issued its press releases based on faulty research and a reckless disregard for the truth.

BB then brought an anti-SLAPP motion claiming that CUPW’s action should be dismissed, as the action sought to limit BB’s expressions on a matter of public interest.

The Test for an Anti-SLAPP Action

The court then turned to the test set out in s. 137.1 of the Courts of Justice Act, which states:

 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.

The court agreed that the issue of the conflict between Israel and Palestine was a matter of public interest and that legitimate criticism of the union’s views was protected speech. However, it also found that it would be an uphill climb for BB to rely on ‘truth’ as a defence to its public claims about CUPW. While it was true that CUPW was involved in a project with the Palestinian union, it would be very difficult to establish that because of that, CUPW could be said to support terrorism. The court pointed out that the Canadian government, European Union, United Nations and the State of Israel had all sponsored projects in the past in Gaza and the West Bank. This alone would not be enough to validate a claim of supporting terrorism.

The court also found that there was evidence to suggest that BB had acted without due diligence, which may be fatal to a defence of “fair comment” in the defamation action. BB’s research into the Palestinian union consisted of a cursory review of a few social media pages, and its public statements ignored CUPW’s publicly-posted policies against terrorism, violence and antisemitism. There was also the possibility that BB had acted with malice, stemming from BB’s vast disagreement withe CUPW’s stated support of boycotting products from Israel. Rather than publicly challenging the union on that stance, the court found that BB may have simply chosen to focus on a tenuous link between CUPW and the union in Palestine in order to blow that out of proportion.

The court was cautious to say that there had been no actual finding of malice, but simply the possibility of it. As a result, the court rejected BB’s motion to dismiss the defamation action, allowing it to be fully heard in court on the merits. It will be interesting to see how the courts decide this matter as the case moves ahead. Given the controversy surrounding the subject matter, there are undoubtedly passionate advocates on both sides of the issue. The challenge faced by the courts will be to come to a decision based on legal merits presented by both parties.

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 defamation 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.

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