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Reference to Masks, COVID-19 Not Sufficient to Dismiss Action via “anti-SLAPP” Legislation

By Athina Ionita

In Dent-X Canada v. Houde, 2022 ONCA 414, the Court of Appeal considered whether a defamation action concerning an internet post about the plaintiff’s services in supplying face masks during the COVID-19 pandemic should be dismissed pursuant to Ontario’s “anti-SLAPP” legislation, s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as relating to a matter of public interest.

Background

The appellants posted the following to Facebook expressing their dissatisfaction with the delay in delivery of face masks they had ordered from the respondent:

Dent X Canada Masks Class Action

The purpose of this group is to locate people and companies that have experienced fraud with the company Dent-X Canada.

Dent-X Canada has promised that we would be refunded if they were not able to respect the delivery dates but it’s NOT TRUE. They’ve missed all of the dates for the shipments we had agreed upon and now they don’t want to refund me.

All of my dealings with Dent-X Canada have simply been a series of BIG FAT LIES.

Like others, I suspect I have been defrauded. The guy in charge is Mr. James Peter Emms. He was convicted of fraud in the past. I don’t understand how a person like Ms. Anaida Deti, Dent-X Canada’s president, would let a convicted fraudster run her company. She has been appraised and decorated for helping her community, but she sure is not helping to stop this fraud from happening in broad daylight, in front of her very eyes. Like many, she seems to only want to profit off of Covid-19. I hope she gets as much (bad) publicity for this as she got for her other achievements.

The lucky ones who haven’t yet done business with Dent-X Canada, STOP THINKING ABOUT IT AND GO ANYWHERE ELSE. You will thank me later.

Analysis

Section 137.1 of the Courts of Justice Act mandates that the court shall dismiss the proceeding if it arises from an expression that relates to a matter of public interest, unless certain circumstances are met. The defendants had brought a motion seeking dismissal of the plaintiff’s defamation action on the basis of this provision. The defendants’ motion was dismissed, and they appealed to the Court of Appeal.

In  the court below, the motion judge, referring to the Supreme Court of Canada’s decisions in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, and Grant v. Torstar Corp., 2009 SCC 61, held that the when reading the statement as a whole, it did not relate to a matter of public interest. Instead, the statement as a whole was about a private dispute between businesses.

The motion judge had recognized that the quality of masks may be an issue closely connected to the public interest during a global pandemic. However, the statement only mentioned the word “mask” once, and there was nothing in the statement that spoke to the issue of quality of the masks, or suggested that the alleged fraud had anything to do with the quality of the masks, or put the public at risk. The post instead related to the respondent missing delivery dates and not honouring a refund.

The Court of Appeal stated that in arguing that the issue of provision of masks during the COVID-19 pandemic, the appellants had confused an expression referring to a matter of public interest with an expression relating to a matter of public interest. Merely referring to something of public interest is not the same as relating to a matter of public interest.

Further, the Court of Appeal declined to interfere with the motion judge’s discretionary finding that awarding costs to the respondent was appropriate in the circumstances.

Takeaway

A statement about a private dispute between businesses that only refers to a matter of public interest will not be sufficient to dismiss a defamation action under Ontario’s “anti-SLAPP” legislation. This is true even where such a statement makes reference to a global pandemic and directed towards a business involved in PPE distribution.

The statement as a whole needs to relate to a matter of public interest in order to engage the “anti-Slapp” provisions, and the fact that the targeted business or service may be pandemic-related is not necessarily sufficient to meet this threshold.