Not legal advice, of course.
(
addendum Sep 29/20 : In 2 decisions same day Sep 10/20 S.C.C unanimously confirms & accepts Pointes as the gold standard application of Ontario’s anti-SLAPP defence as approved by ONCA. Concurrently in parallel appeal Bent v Platnick it applies same test but there rejects the shield on different facts by a 5:4 majority expressly upholding POINTES as the current gold standard of anti-SLAPP usages -
1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 issued Sep 10/20
http://canlii.ca/t/j9kjz and
Bent v. Platnick, 2020 SCC 23 issued Sep 10/20
http://canlii.ca/t/j9kjw )
A
recent Superior Court decision ( about a private complaint to a volunteer organization by one member about another ) raises some questions. Is the
anti-SLAPP defence -
or at least where it should be allowed available in defamation litigation - getting some sort of
widening in "availability" or wider scope to be applied. ?
(
SLAPP : "Strategic Lawsuit Against Public Participation" Think : Ontario's legislated anti-SLAPP defence intended to strike down defamation lawsuits where ( mis - )used typically to gag environmental critics, dissatisfied shareholders or whistle-blowers. But such anti-SLAPP shield itself requires some sorta "public interest" subject matter to be erected as a shield by defendant after defamation lawsuits ensue.
The effect of the anti-SLAPP tool is arguably NOT a clear-cut one such as "Society needs to hear valid whistle-blowers !" )
(
footnote : ONCA Ontario's Court of Appeal summarized anti-SLAPP's legislated 2015 arrival :
1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 issued Aug 30/18
http://canlii.ca/t/htqb3 )
2018 : Condo criticism ruled NOT "public interest" In 2018 a Superior Court decision ruled against letting a
Director's criticism of a management company be shielded by an anti-SLAPP shield. ( “TAFT PMC et al v GENTILE : Director fails anti-SLAPP defence for alleged DEFAMATION against PMC”
https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18896&catid=9 )
June 9 2020 : Looking sharply contrary - BUT NOT CONDO - just released has been a judicial decision involving a
private complaint by one member to a voluntary organization against another member.
Unlike the TAFT condo outcome of 2018, this recent decision
instead allows the anti-SLAPP defence to be erected against a lawsuit subsequently alleging defamation. It's not a sharp line in a situation which is is hard to see is somehow "more public interest" than the condo criticism above ( 2018 ).
Incidentally the decision finds the private complaint at least partially defamatory.
The defendant's private complaint was followed by the recipient volunteer organization privately barring the plaintiff from certain volunteer activities. (
worth considering : How much reputational damage might be caused today if some sort of stalking or predation is even merely implied by an organization after it acts on such private allegation ? )
After the ( allegedly defamed ) plaintiff lawyered up, ultimately the organization tried to distance itself from the scenarios and to repudiate any organizational duty. It apparently is NOT sued or has reached some sort of deal.
The complainant member, however, IS ( being sued ) for what the plaintiff argues is defamation . . . .
Bottom line :
ONSC here instead accepts the defendant's anti-SLAPP “public interest” defence erected upfront in this volunteer scenario.
ie ONSC rules the private allegations - and the volunteer organization’s exposure if any - are "public interest" enough to be able to raise an anti-SLAPP shield protecting the complainant's private complaint .
Such in the land of anti-SLAPP swings the good ole' procedural shotgun NEXT around to force the plaintiff to establish likelihood of his claim succeeding. Held unable.
Followed by this eye-opening award :
AGAINST the plaintiff, ONSC here
awards to the defendant $ 75 K costs and $ 10 K damages.
Losing these lawsuits ain't cheap, but will the anti-SLAPP defence reduce some fear of getting sued successfully for potentially defamatory 'hurt-speech' in condo or Building Scheme settings ? Is criticism about to get more personal ?
Mazhar v. Farooqi, 2020 ONSC 3490 issued June 9/20
http://canlii.ca/t/j86hf