In 2015, the Ontario Legislature passed the Protection of Public Participation Act, S.O. 2015, c. 23, which introduced a powerful motion to counter “Gag Proceedings” or “Strategic Lawsuits Against Public Participation” into the Courts of Justice Act, R.S.O. 1990, c. C. 43. The motions provide a defendant to a defamation lawsuit with a mechanism to expediently dismiss a such an action, should it be abusive or intended to utilize litigation as a method to silence or dissuade criticism.
The relevant sections of the CJA include sections 137.1-137.5, and sections 137.1(1)-(4) read as follows:
Dismissal of proceeding that limits debate
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.
(2) In this section,
“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) 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 Ontario Court of Appeal released a decision on August 3, 2023, which includes a discussion of the application of the test set out in s. 137.1(4), and delineates the relevant considerations for each part of the test.
In this case, Mondal v. Kirkconnell, 2023 ONCA 523, the “Gag Proceeding” motions in two actions were heard together on consent. The plaintiffs/appellants were the same in both actions: Probash Mondal and 23451671 Ontario Inc., operating as Guelph Medical Imaging (“the appellants”).
The defendants in the first action were Ross Kirkconnell and Michelle Smith. They worked for the Guelph Family Health Team, a cohort of physicians that often referred patients to the appellant imaging clinic. They had circulated an email containing Ms. Evans-Bitten’s allegedly defamatory tweet to the Guelph Family Health Team.
The defendants in the second action were spouses: Stephanie Marie Evans-Bitten and Kathryn Evans-Bitten. Stephanie had tweeted at the appellants, and those tweets were the basis of the defamation claim the appellants brought against her.
The motions judge dismissed both of the appellant’s defamation actions.
The motions judge applied the framework as set out in the Act. The motions judge first determined that the expression related to a matter of public interest (s. 137.1(3)). The motions judge determined that there were grounds to believe that the defamation actions did have substantial merit (137.1(4)(a)(i)). However, the motions judge determined that the respondents would have the valid defence of ‘fair comment’ and therefore satisfied the test (137.1(4)(a)(ii)). The motions judge did not proceed to apply 137.1(4)(b).
The Ontario Court of Appeal overturned the motion decision for Ms. Evans-Bitten and upheld the decision for Kirkconnell and Smith.
The subject twitter exchange occurred on June 11, 2021. However, those tweets were the culmination of a Twitter war between the appellant and Ms. Evans-Bitten that had been ongoing off-and-on since 2019. Among other things, Ms. Evans-Bitten accused the appellant of posting homophobic conservative content on the Guelph Medical Imaging Twitter account, and the appellant accused Ms. Evans-Bitten of being subject to liberal brainwashing.
The June 11, 2021 tweet by Ms. Evans-Bitten suggested that gay residents of Guelph were forced to seek healthcare diagnostics elsewhere because of the views expressed by the appellants in previous tweets. Screenshots of the appellants’ earlier tweets were attached to this tweet.
Kirkconnell and Smith circulated Ms. Evans-Bitten’s tweet on June 14, 2021 to the membership of the Guelph Family Health Team via email. The email message reminded members of the organization’s commitment to diversity and inclusion.
The Supreme Court of Canada considered the framework for determining the outcome of motions brought under s. 137.1 in the 2020 decision 1704604 Ontario Ltd. v Pointes Protection Association [Pointes]. Pointes is cited throughout this decision.
1. S. 137.1(3) – the expression related to a matter of public interest
Justice Huscroft, writing for the majority, agreed with the motions judge that the allegedly defamatory expression included a matter of public interest, but disagreed as to why. Justice Huscroft noted that where the expression takes place has no bearing on whether the expression relates to a matter of public interest. No matter how much more vitriolic the forum may be, a Tweet is subject to the same test as a printed newspaper article, for example.
2. S. 137.1(4)(a)(i) – there are grounds to believe the action has substantial merit
The finding of the motions judge in this respect was not challenged on the appeal.
3. S. 137.1(4)(a)(ii) – the moving party has no valid defence in the proceeding
This portion of the analysis centres around the defendants’ assertion of the defence of “Fair Comment”. At paragraphs 48-49 Justice Huscroft explained that the “Fair comment” defence to a defamation claim is available if the words complained of are expression of opinion rather than fact. The four-part test was set out by the Supreme Court of Canada in 2008. The fair comment defence is defeated if the plaintiff proves that the defendant’s comments were motivated by malice.
However, Justice Huscroft further explained that the test for section 137.1(4)(a)(ii) requires only that the plaintiff establish that there are grounds to believe that the defendants have no valid defence. In other words, that there is a basis in the record and the law for concluding that the defences asserted will not succeed. This is a standard less than the balance of probabilities.
In finding that there were grounds to believe that Ms. Evans-Bitten had no valid defence, Justice Huscroft emphasized that the burden the plaintiff must meet at this early stage is not a high one. Justice Huscroft found that there were grounds to believe that the fair comment defence may fail on the basis of malice. The plaintiffs may fail to prove malice at trial, but there is enough basis in the record to satisfy this lower preliminary burden in the context of the “merits-based hurdle” set out in s. 137.1(4)(a).
In finding that there were no grounds to believe that Kirkconnell and Smith have no valid defence, Justice Huscroft applied the test for fair comment. His Honour considered at para 64 that the email does not attest to the factual accuracy of the appellant’s deleted tweets, it simply draws them to the attention of those who received the email, leaving it to them to decide how to proceed. Further, there were no grounds to believe that allegations of malice or recklessness in sharing the tweets could be made out.
4. S. 137.1(4)(b) – the public interest in allowing the proceeding to continue outweighs the public interest in protecting the expression
This is referred to as the public interest hurdle portion of the test.
At this stage of the analysis, the appellant must put forward evidence permitting an inference of likelihood in respect of harm and causation. There is no expectation that the quantum of damages be determined at the early stage of litigation that these motions are to be held in.
The motions judge noted a factual finding that at least one physician would no longer refer patients to the appellant’s clinic and stated that the appellant was likely to establish that he has suffered economic harm. At para 79, Justice Huscroft noted that,
…the appellant’s business operates on the basis of referrals from physicians, and it is reasonable to infer that the appellant suffered harm and that the harm is significant to the appellant’s business. That is all that is required at this stage of the proceeding.
With regard to weighing the protection of expression, both the quality of expression and the motivation behind it are relevant considerations.
Justice Huscroft determined that the public interest in protecting Ms. Evans-Bitten’s expression is relatively low due to the fact that, “[t]his is a case between private parties involving apparently gratuitous personal attacks and vitriol, which there is relatively less public interest in protecting” (at para 93, citing Pointes, at para 75).
Upon completion of the weighing exercise in this hurdle, Justice Huscroft found that the public interest in allowing the defamation action to succeed outweighed the public interest in protecting the expression. Thus, the action as against Ms. Evans-Bitten may continue.
The analysis of the motions brought by the separate defendants in these cases, especially when taken together, are illustrative of the details that will result in success or failure of a s.137.1 motion. This analysis highlights the low bar to be applied to each part of the test. There is no expectation that evidence akin to what might be required at a trial or a summary judgment motion need be produced for the plaintiff to succeed in maintaining their action. This low bar is meant to be proportional to the early stage of litigation that this motion is brought in.