Political issues often stir passionate debate. Indeed, one side can spend a lifetime shouting at the top of their lungs advocating positions that the other side will spend an equal lifetime shouting at the top of their lungs to oppose. However, when the shouting becomes targeted at the reputation of others, issues in the political arena may be drawn into the judicial arena when the person whose reputation is harmed seeks damages for reputational loss by commencing a defamation action. In Ontario, the defendant can bring an anti-SLAPP motion under section 137.1 of the Courts of Justice Act ("CJA") to seek the early dismissal of this kind of action because such a claim will likely involve matters of a public interest. However, not every anti-SLAPP motion will be successful even though it involves political issues.

In Teneycke v. McVety, 2023 ONSC 1710 (not available on CanLII at the time of this writing), the court dismissed the defendants' anti-SLAPP motion on the grounds that the plaintiffs had satisfied each element of section 137.1(4)(a) and (b) of the CJA. The plaintiffs demonstrated that there were grounds to believe that there claim had substantial merit, that the defendants' had no valid defences, and that the balance of whether there was a public interest in permitting their claim to proceed outweighed the interest of protecting the defendants' expressions.

The plaintiffs in this case were a political strategist and his company. The individual plaintiff was Premier Ford's campaign manager during the provincial election. His company's business was engaged in lobbying governments on behalf of clients, which included clients in the pharmaceutical industry. However, when the individual plaintiff managed Premier Ford's campaign, he was on a permissible leave of absence from the company.

The defendants were involved in the operation of a Christian college and in 2020 had sought the government's permission to be called a "University". This designation would have provided the college with a higher degree of granting privileges. However, the College's application for university status was rejected.

In September 2021, the provincial government also introduced "vaccine passports".

The rejection of the College's application and the government's COVID-19 policy on vaccines caused the defendants to express their views about the plaintiffs on the internet, on social media, and in public speeches. A website created by the defendants was devoted exclusively to the individual plaintiff. This website suggested that the individual plaintiff had lobbied the government for "vaccine passports" purely for profit. The defendants also linked the corporate plaintiff to a client who had actively opposed the College's application to attain university status.

Overall, the defendants engaged in a large campaign which the plaintiffs viewed as presenting them as anti-Christian, pro-pharmaceutical and corrupt. As well, the defendants' comments were viewed as suggesting that the plaintiffs had breached government regulations regarding their lobbying activities. The plaintiffs contended that the numerous statements made by the defendants about them were demonstrably false and were patently malicious.

The defendants brought a motion under under section 137.1 of the CJA to have the action dismissed. On an anti-SLAPP motion, a defendant bears the initial onus of establishing that the plaintiff's action arises from an expression that relates to a matter of public interest. This is a low threshold and the plaintiffs conceded that the defendants satisfied this burden.

Once this burden is satisfied, the onus shifts to the plaintiff to satisfy the court of the following three things:

  1. that the plaintiff's action has substantial merit;
  2. the defendant has no valid defence to the action; and
  3. the harm suffered by the plaintiff is sufficiently serious that the public interest in permitting the action to continue outweighs the public interest to protect the defendant's expression.

Items 1 and 2 constitute the "merits-based" hurdle. Item 3 is the "public interest" hurdle.

To satisfy the substantial merit element of the first hurdle, the plaintiffs were required to demonstrate that their claim had a prospect of success that tended to weigh more in their favour. Based on the seminal case of 1704604 Ontario Ltd. v. Pointes Protection Assoc., 2020 SCC 22 at para. 51, although a plaintiff is not required to provide evidence of a high, strong prima facie case threshold, a plaintiff must lead evidence which shows that the action's success is more than the very low threshold of being "plain and obvious".

The defendants attacked the legal tenability of the plaintiffs' action, contending that the plaintiff company was not the subject of the expressions and that the impugned expressions were not made by the College.

The court rejected these arguments and concluded, without hesitation, that the claim met the legal requirements for a defamation action and that it was supported by evidence that was reasonably capable of belief. The impugned statements attacked the plaintiffs' business reputations and/or imputed the commission of regulatory and/or criminal offences by the plaintiffs.

The defendants further contended that the plaintiffs' claim lacked merit because the impugned statements were true or were protected by the defences of qualified privilege or responsible communication.

With respect to truth, the defendants advanced facts about the plaintiffs which were indeed true. The defendants further contended that the impugned comments had been repeated by others and that it was an essential element of defamation that they could not have damaged the plaintiffs' reputation because the words used by them had been previously published or publicly disseminated.

The court rejected these arguments. First, the facts that defendants relied upon as being true were tangential to the crux of the alleged defamatory statements. Tangential facts that are true cannot undermine what are otherwise defamatory statements.

Second, other arguments with respect to the defence of truth were also viewed as being "close to nonsensical". The court found it difficult to accept an allegation that the laintiffs were closely tied to Premier Ford in one breath, while at the same alleging equally that the plaintiffs were closely tied to the Liberals. This contradiction was viewed by the court as a concession that at least one, if not both statements, were fabrications.

Third, the defendants' submission regarding prior publication by others went beyond the recognized protection afforded to a party that innocently disseminates defamatory material. The defendants were found by the court to not be passive actors, and their impugned statements had been consciously made.

With respect to the defences of fair comment and responsible communication, these defences are vulnerable to allegations that the impugned statements were made with malice. (The responsible communication defence, which requires that the defendant acted with due diligence, is also vulnerable to being defeated if a statement was negligently made),

As stated in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), malice can be established by "reckless disregard for, or indifference to the truth, spite or ill-will, or any indirect or ulterior motive".

On an anti-SLAPP motion, evidence of malice is often "based on the presence of an ulterior motive or recklessness about the truth of the underlying facts, or based on an inference from the [defendants'] conduct" and that a court in assessing whether there has been malice is allowed to find that a defendant acted on assumptions, without due diligence. The lack of diligence will be fatal to both the fair communication and responsible communication defences.

Based on the facts, the court found that there was sufficient evidence in the record to establish that the fair comment and responsible communication defences could be defeated by malice.

Lastly, the court held that the balance of harms favoured the plaintiffs. While the defendants argued that the plaintiffs had not suffered damages, including special damages, the court stated that since the impugned comments comprised both written and spoken alleged defamations, the plaintiffs were not required to show that they had suffered a loss of business: see Carrington v. Corrigan, 2010 CarswellOnt 4916 (SCJ) (not available on CanLII). As well, the court noted that under section 16 of Ontario's Libel and Slander Act, a plaintiff whose professional reputation is attacked is not required to prove special damages, and accepted that the plaintiffs would be able to prove general damages. The defendants' motion was therefore dismissed and the action will proceed in the ordinary course.

This case shows that an action based on repeated alleged defamatory statements either posted on various websites and social media or made orally will not easily be dismissed on an anti-SLAPP motion even though they may arises out of matters of a public interest. Furthermore, a defendant should carefully consider their defences to a plaintiff's claim and only rely upon those defences that are anchored with cogent, rather than clever or meritless, arguments. Meritless arguments are unhelpful to a litigant and, although not expressly stated in the court's judgment, under section 137.1(4)(b) may be a factor that persuades a court to find that the balance of harm favours the plaintiff's right to have their action continue.

At the time of this writing, the court had not issued any ruling on costs. Under section 137.1(8) of the CJA, there is a presumption that no costs will be awarded to a plaintiff who successfully defends an anti-SLAPP motion. However, a court retains a discretion to award costs to a successful plaintiff in appropriate circumstances. A PDF version is available to download here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.