In Ontario there is a shortcut to dismissing a defamation claim

                                                           

Defamation covers any communication (oral or written) that tends to lower the esteem of a person in the minds of ordinary members of the public.

In this case I am writing about, the defendant, Katie Mohammed was sued for defamation arising out of statements made in her Facebook posts. These statements voiced strong opposition to a local bylaw amendment that would allow hydro-excavation trucks to dump fill near a local water supply in the Oak Ridge Moraine.  (a forested ridge in this case)  Among other things, the defendant accused the plaintiff, United Soils Management Ltd of potentially “poisoning” children.

WOW: That is a powerful insult. The United Soils Management Ltd., (USML) felt insulted so they sued Katie Mohammed for defamation.

Years ago, I was sued by a woman who owned a small business. In her claim she stated that I defamed her after I wrote an article in my blog in which I stated that the woman was ripping off her customers.  She felt insulted and sued me for five million dollars.

In my defence that I filed in the court, I said that the Supreme Court of Canada stated that a person can state derogatory comments about another person if the statement is merely an opinion and is at the same time in the best interests of the general public. My statement in the article was obviously my opinion and certainly in the best interests of the public.  She lost her case on a technicality and shortly after that, she went out of business and filed for bankruptcy.

Had the matter proceeded, I would have brought in a motion to have her case dismissed on the basis that although I insulted her in my article, a similar case resulted in a decision of the Supreme Court that I used as a precedence. Her claim would have been dismissed by the Master (a judge who conducts motions) who would be conducting the motion hearing. Had my motion not been dismissed to the woman’s benefit, the case would have dragged on for several years. That is why pre-trial motions are useful in dealing with such claims.

USML filed an appeal from the order of Master Muir made December 5, 2016.  The appeal involves the interpretation of sections 137.1(5) of the Courts of Justice Act, RSO (Revised Statutes of Ontario) 1990, c. C43.  Section 137.1 is part of a set of amendments to the Act in 2015 which govern motions to dismiss claims which are deemed to be strategic litigation against public participation (referred to as “anti-SLAPP” motions). 

Ontario’s anti-SLAPP (Strategic Litigation Against Public Participation) law came into force in 2015. The law is intended to discourage lawsuits aimed at the right of citizens to express themselves freely on matters of public interest without facing the threat of proceedings intended primarily to silence them such as suing them for defamation.

 The defendant brought a motion to dismiss the action under section 137.1.  Following the commencement of her motion, she filed a statement of defence and counterclaim.  The plaintiff took the position that section 137.1(5) prohibited the filing of a defence and counterclaim as being a “further step” taken in the proceeding.  Ultimately, Master Muir dismissed the plaintiff’s motion to strike out the statement of defence and counterclaim.

Section 137.1915 states the following in the RSO:

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

)   (iii) 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.

(   (5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding.

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.

 (8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

 (9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.           

That law is a powerful defence against a claim of defamation. The defendant believed that the contents of her statement were accurate and that the general public should be warned of the danger that would be inherent if USML dumped poisonous substances in the moraine.

The defendant brought a motion to dismiss the action under section 137.1.  Following the commencement of her motion, she filed a statement of defence and counterclaim.  The plaintiff however took the position that section 137.1(5) prohibited the filing of a defence and counterclaim as being a “further step” taken in the proceeding.  Ultimately, Master Muir dismissed the plaintiff’s motion to strike out the statement of defence and counterclaim.

Master Muir held that filing the statement of defence and counterclaim was “certainly a step in the proceeding” in that it was clearly a step in the proceeding that advances the action toward trial.  Having made that finding, however, the Master went on to conclude that, because a relevant consideration on anti-SLAPP motions (under ss. 137.1(3) and (4)), is whether there is a defence to the action, s. 137.1(5) should interpreted to allow a step in the proceeding “if it is a necessary and desirable step” in the connection with the hearing of the motion “regardless of whether or not that step may also amount to a step in the proceeding generally.”  He held that “interpreting section 137.1(5) of the (CJA Courts of Justice Act) to prevent the delivery of a defence would lead to an absurdity.

Accordingly, Master Muir dismissed the plaintiff’s motion to strike out the statement of defence. It was from that decision that the plaintiff appealed.

 The basic principles of statutory interpretation are not a serious issue.  The words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.  This requires a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process.  Where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role.  The relative effects of ordinary meaning, context and purpose may vary but, in all cases, the court must seek to read the provisions as a harmonious whole.

 The grammatical and ordinary sense of a section in a statute is not necessarily determative and does not end the inquiry. The court must consider the total context of the provisions to be interpreted, no matter how plain the disposition may seem upon an initial reading.

 Legislation is, however, presumed to be accurate and well drafted, consequent on the presumption that the legislature does not make mistakes.  Thus, if the words of an Act are clear (read in the proper context of the legislation as a whole), they must be followed even though they lead to a manifest absurdity.  Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be It would be up to the legislators to make the appropriate changes if the law is too harsh and/or absurd.

If a judge is convinced that part of a legislative law is confusing, harsh or absurd, he can nullify it in his or her decision unless a higher judge rules otherwise. 

The plaintiff argued that the Master erred by reading in an exception to the prohibition against any party taking further steps in the proceeding.  There is nothing about the context or arising from a purposive reading of the legislation that takes away from the precise and unequivocal meaning of s. 137.1(5). 

                                                           

The plaintiff argued that the Master erred by reading in an exception to the prohibition against any party taking further steps in the proceeding.  There is nothing about the context or arising from a purposive reading of the legislation that takes away from the precise and unequivocal meaning of s. 137.1(5).  By opening up an exception that would allow taking any step in the proceeding as long as it is relevant, “desirable or of assistance to the court on the motion. The plaintiff argued that the Master gutted the prohibition against taking any further step in the proceeding of all content, contrary to the manifest intention of the legislature.                

The defendant on the other hand argued that Master Muir properly interpreted s. 137.1(5) in accordance with the purposes of s. 137.1 of the Act. 

The judge in a higher court in this case ruled; “In my view, the Master erred in law when he interpreted s. 137.1(5) of the Act to include an exception to the prohibition against taking any “further steps” in the proceeding, as long as the step in the proceeding would produce relevant information or information that is desirable, necessary or would be of assistance to the Court in its disposition of the motion . Section 137.1 is plain enough.  Once the anti-SLAPP motion is brought, no party may take any further step in the proceeding until the motion is finally disposed of. The prohibition makes good sense given the purpose of the legislation, as it prevents the use of “extraneous tactical steps” that might be used to undermine the efficiency of the intended process.  The provision contains no exceptions and, importantly, the court is afforded no power to grant relief from the prohibition in any circumstances. The Master correctly found that filing a pleading in the action is a “further step” in the proceeding.  Having made that finding, the only choice was to set that step aside.” unquote

The judge also said; “I come to this conclusion with the greatest of respect to Master Muir because I entirely share the Master’s concerns about the importance of the merits, and specifically, whether the defendant has a valid defence to the action (s. 137.1(4)) and the need for evidence or information about the merits in order to properly decide the main motion on its merits. I part company with the Master, however, on the need for a statement of defence to be filed in the proceeding in order for the defendant to put material before the court on the validity of her defence.” unquote

Finally the judge of the higher court ruled; “Accordingly, I grant the appeal.  The statement of defence and counterclaim ought not to have been delivered in the action after the defendant brought her motion to dismiss under s. 137.1.  That step was contrary to s. 137.1(5) and must be set aside.  However, the defendant shall be entitled to delivery a supplementary affidavit limited to attaching her proposed defence and counterclaim as an exhibit.  This shall be done within 7 days.  The plaintiff is at liberty to file a supplementary affidavit limited to filing its proposed reply and defence to counterclaim.  This shall be done within a further 7 days.  Each party may conduct one additional hour of cross-examination limited to new issues, not previously examined on, arising solely out of the proposed pleadings.  There shall be no further motions before the return of the anti-SLAPP motion, subject only to the direction of the judge hearing the anti-SLAPP motion. The Master, at some points in his analysis, glosses over the difference between taking steps in the proceeding as opposed to taking steps in the motion.  It seems to me clear, reading the anti-SLAPP provisions of the Act as a whole, that a distinction is and must be made between taking steps or filing material in relation to the motion  and taking further steps in the proceeding.  The former is permitted however, the latter is not.”  unquote

In conclusion, the judge ruled: “ The claim of defamation against the defendant is dismissed and the court orders the plaintiff to pay the defendant her costs of this motion as fixed in the amount of $7,500 inclusive of all fees, disbursements and applicable taxes.” unquote

PLEASE NOTE:  This ruling only applies if the proceedings are undertaken in the province of Ontario.