In Blair v. Ford, 2021 ONCA 841, Brad Blair (“Blair”) appealed the decision of Justice Belobaba to dismiss Blair’s action against Premier Doug Ford (“Ford”) on the basis that it was a strategic lawsuit against public participation (“SLAPP”). The Court of Appeal dismissed Blair’s appeal and upheld the decision of Justice Belobaba. This is another example of the anti-SLAPP provisions being applied out of context due to the broad wording of the provisions. It is another demonstration of the difficulties these provisions are causing for plaintiffs with legitimate defamation claims that are being pursued to vindicate their rights, not to silence public speech and debate.
Ontario’s OPP Commissioner retired on September 5, 2018, and subsequently a job competition for the permanent position was publicly posted. Blair, who was appointed as Interim Commissioner, applied for the permanent position but was unsuccessful. In November 2018, a permanent OPP Commissioner was appointed who was a family friend of Ford. Blair subsequently sent written correspondence to the provincial Ombudsman alleging several improprieties in the selection process. When Ford was questioned by reporters about the letter, Ford made several negative comments about Blair, which Blair alleged were defamatory, including that Blair “broke the Police Act.” Ultimately, a different person was appointed as OPP Commissioner. Blair sued Ford for damages for defamation. Ford moved to dismiss the action because it was a SLAPP suit.
2. SLAPP Law
Section 137.1 of the Courts of Justice Act (the “Act”) sets out the test to succeed on a motion to dismiss a proceeding as a SLAPP suit. If the defendant can show that the lawsuit arises from expression that relates to a matter of public interest, the burden shifts to the plaintiff to demonstrate grounds to believe that: (1) the action has “substantial merit”; (2) there is no valid defence to the proceeding; and that (3) the harm caused by the expression is sufficiently serious that the public interest in continuing with the action outweighs the public interest in protecting the expression. If the plaintiff fails to establish any one of these elements, the claim must be dismissed. The purpose of the legislation was to prevent parties from using defamation actions to prevent legitimate public speech and debate.
3. Decision of the Motion Judge
Justice Belobaba recognized that the action was not “strictly speaking” a SLAPP suit because Blair was not a large organization using litigation to intimidate and silence a vulnerable opponent. Nonetheless, he dismissed the defamation action because Ford had a “valid defence” to the action, namely fair comment, and the public interest in protecting Ford’s expression outweighed the public interest in allowing the action to continue. Interestingly, given what was essentially an allegation of illegal conduct, Justice Belobaba did not appear to consider the well-established law that such allegations are traditionally deemed facts that must be proven. In other words, it is unclear whether the defence of fair comment should even have been considered or could apply. This issue also does not appear to have been addressed on appeal.
4. Court of Appeal Decision
Blair appealed. The Court of Appeal upheld Justice Belobaba’s decision. Among other things, the Court of Appeal agreed with the motion judge’s analysis that Blair did not demonstrate that Ford’s defence of fair comment had no real prospect of success or that the defence was defeated by malice. The Court of Appeal also agreed that the SLAPP provisions of the Act apply even where the lawsuit does not possess the classic SLAPP hallmarks. This is consistent with the statutory wording.
This decision confirms that a proceeding must be dismissed under the SLAPP provisions of the Act even if it is not a “classic” SLAPP suit. Put another way, there is no requirement that the proceeding must involve a large organization attempting to intimidate and silence a vulnerable opponent or stifle legitimate public speech and debate. The language of the legislation, therefore, extends beyond the alleged problem that the legislation was designed to remedy. This is no surprise, and this issue was remarked upon when the legislation was enacted. There is no question that Ontario is no longer a plaintiff-friendly defamation jurisdiction.
About the Author
David Seifer, an associate in Dickinson Wright’s Toronto office, has a broad commercial litigation practice, which includes contract disputes, bankruptcy and insolvency, and shareholder oppression. He can be reached at 416-646-6867 or email@example.com, and his biography can be accessed here.
Brian Radnoff, a Partner in Dickinson Wright’s Toronto office, practices a wide range of commercial litigation, both at the trial and appellate levels. He can be reached at 416-777-4046 or firstname.lastname@example.org, and his biography can be accessed here.