Skip to content

Narrow screen resolution Wide screen resolution Auto adjust screen size Increase font size Decrease font size Default font size default color brick color green color
TAFT PMC et al v GENTILE : Director fails anti-SLAPP defence for alleged DEFAMATION against PMC 2018/09/15 15:00  
( This is not legal advice, which Directors should obtain and rely on from licensed members of L.S.O. )

Being sued personally by his condo corporation's former management company & its President, an individual Director ( with counsel ) has failed to support an anti-SLAPP upfront ( summary dismissal ) defence against civil defamation claims in a Toronto Small Claims Court.

The claims arise from criticisms made by the defendant Director against the condo corporation's now ex-PMC plaintiffs within this Director's e-mails solely to his fellow Directors.

From the ULTRA-quick PMC response one might not have a tough time thinking that this Director had one or more BIGTIME enemies on the Board. OR that the PMC was vetting Director communications ? OR more.

Maybe the criticisms - some quickly retracted - had no merit.

( So-called anti-SLAPP defences in matters of "public interest" as UNDEFINED - to defend critics against so-called "Strategic Lawsuits Against Public Participation" - in Ontario were legislated in 2015.

The reported intent was allegedly to reduce "libel chill" where public interest criticism might be otherwise gagged by deep-pocketed defamation claimants & their lawyers.

This Small Claims ruling nominally gets no automatic deference laterally nor vertically from other Ontario courts. But its timing & detailed content will get attention.

So failing now to persuade a summary upfront ruling that his 2016 criticisms of the PMC - as e-mailed to his fellow Directors within weeks of his election, the critic will be faced with continuing to conventionally defend the defamation claims.

Ontario's conventional defence scenario has been characterized as far more "defamation claimer-friendly" than in many U.S. states. But loss will also have to be proved against alleged defamers by any successful claimant in most cases.

The same Deputy Judge Prattas ( as rendered the late- stage M. Lahrkamp massacre ), rules that Small Claims has jurisdiction.

He also provides an interesting review of Ontario SLAPP outcomes since the remedy was attempted.

He rules that that the alleged defamer defendant fails to hurdle the critical first stage of the SLAPP upfront 2 stage “public interest” defence against defamation lawsuits.

Central to that ruling is said to be that comments about what here gets labelled routine condo matters & disputes etc, ARE NOT shielded from defamation lawsuits because are ( here held generically ) to be NOT matters of “public interest”.

( It's unclear if the Director's quickly retracted allegations, removed the serious mis-behaviours initially alleged & in no way even assessed here so far as to validity. The listed initial e-mailed claims alleged some serious stuff )

That’s : NOT of public interest even if every condo owner in the complex might be very concerned.

The ruling contains an interesting review of undefined “public interest” rulings which includes the spring 2018 Muter decision from the Barrie area. A ratepayers association official’s secretly recorded comments against “monster homers”, unfortunately slid in - against the plaintiff defamation-claimer realtor - non-germane allegations of professional misconduct there ruled un-shielded by anti-SLAPP provisions. Anecdotal testimony confirmed that her professional misconduct allegations were also spread by her including to those who did not share Mrs Muter's concerns about "monster homers".

So monster-homing critic Mrs Muter's arguably extraneous criticisms lost the anti-SLAPP defence. She had failed to hurdle the upfront critical first stage of 2 stage SLAPP “public interest” defence.

Monster-homing critic Ms Muter was forced to continue as defendant under conventional defamation parameters which arguably disfavour any hurt-speaker critics. The extraneous comments were described in the judgment in terminology strongly suggesting civil defamation . ( McCarthy-Oppedisano v. Muter 2018 ONSC 2136 issued April 3 /18 )

The condo ruling :

TAFT PMC et al v Gentile personally 2918 canlii 82880 ( ON SCSM ) issued Aug 27/18
(Taft Management Inc. v Gentile, 2018 CanLII 82880 ( ON SCSM )
  The administrator has disabled public write access.
Critics shielded by anti-SLAPP defence AND GOT COST AWARDS : Oak Ridges Moraine dump war 2018/09/16 12:56  
Again this continues as always to be NOT LEGAL ADVICE.

One Bigger picture ?

1 - Critically Ontario legislators in 2015 left no detailed definition of “public interest” usage. where the anti-SLAPP shield MIGHT - MIGHT - get held available to critics

Is genuine "public interest" debate served when random citizens get flattened like flies by a sledgehammer ?

A clear intended shield might be Oak Ridges Moraine dump war scenario like United Soils Mgt Ltd v Mohammed 2017 ONSC 4450. In 2017 Superior court allowed the anti-SLAPP upfront shield to summarily protect a non-office holder / general “concerned citizen” defendant to be shielded after an online social media comment not much different from hundreds of others about toxic waste.

She even gets $7,500 damage award.

Not so clear cut in the same Oak Ridges war :

BARCLAY In 2018 the same Oak Ridges dump expansion (by same defamation accuser) is background for another successful anti-SLAPP defence heavily citing the 2017 Mohammed judgment but this time awarding $20 K in damages and $ 126.5 K costs additionally to dump neighbour Mrs Barclay - a different critic.

Valid or not Mrs Barclay posted online comments about municipal officials/ permit approvers. Valid or not those officials did not sue for defamation. Dumpers instead quickly did so, and in the short term got immediate shut downs of the website comments and retractions. BUT that was only the beginning . . .

BUT in 2018 the dump operators fail again big time dropping $126 K and their own costs. But they got the accusations gagged for that time being - United Soils Management Ltd. v. Barclay, 2018 ONSC 1372 issued April 19/18

( Keeping track ? Muter & Gentile lost their 2018 hurdles & are left unshielded to defamation claims. Big Bay OMB opponents with Clayton Ruby had at least ducked the costs before anti-SLAPP provisions arrived. Oak Ridge Moraine dump critics Mohammed 2017 & Barclay 2018 have not only ducked the defamation suits but even got damage awards from defamation claimers 2018 !)

2 - What about condo / strata / Building Scheme defamation wars like Taft et al v Gentile ?

Lacking a legislated definition of “public interest”, judges may have bigger concerns about opening floodgates of irresponsible defamatory damage to accreditations or hard-won professional reputations.

Unpaid volunteer condo or Building Scheme officers may find themselves personally sued for their own allegedly defamatory comment without any support from others on the Board.

Other Directors may disagree, may actually be rivals, may wider fear the organization dragged into ongoing defamation wars.

Some angry service providers or professionals may have the bucks to cherry pick and punish sloppy accusers. Valid or not, Taft et al v Gentile 2018 shows how vulnerable were those e-mails naively expected secure

That’s a sharp contrast to some individual unit owner or stakeholder hit with voodoo accusations or liens or charge-backs unsupported by law or evidence. Smacking a unit owner may - MAY - be like throwing something with impunity against a wall to see if it sticks.

Whatever the Taft et al v Gentile future outcome, all the more reason to speak accurately & responsibly & to listen to competent insured legal advice. Count to ten. There may be neither an UNSEND button for e-mails nor support from other Directors if unsupported criticisms trigger a defamation lawsuit. [/b]
  The administrator has disabled public write access.
more about SLAPP wars 2018/09/17 19:50  
1 - More about SLAPP wars - including between warring U.S. owners and also by U.S. Boards seeking to gag owner critics - can be seen at comments to another topic here :

“ DEFAMER UNMASKING ORDER Carleton CC # 282 v Yahoo !”

( see especially " “but were the anonymous postings "public interest"' comments ? SLAPP ?” )

2 - Well worth a read : alleged SLAPP abuse that triggered the 2015 Provincial response

Oct 30/15 lawyer Derek Bell ( Bennett Jones LLP) “Everything You Need to Know About Ontario's New Anti-SLAPP Law”.

He points to the Big Bay Point environmental OMB war - and bizarre allegedly retaliatory aftermath - as the trigger for the former Ontario government's 2015 SLAPP law.
  The administrator has disabled public write access.
ONCA pronounces first time on SLAPP : shields ENVIRONMENTAL CRITICS Pointes wetlands SS MARIE 2018/09/23 11:58  
Again this is not legal advice.

Unlike some U.S. anti-SLAPP outcomes, Taft v Gentile above has ruled that the inter-Director e-mailed beefing was NOT "public interest".

ie that Director Gentile's serious allegations were essentially no different from mundane condo /strata / Building Scheme stuff like : "I don't like the colour of the new sofa in the lobby !". Or maybe : "The garbage room is cluttered !".

Not "public interest" as to initially open up a possible anti-SLAPP defence or shield even if every unit owner might be personally interested to some degree.

But will that change some day in view of the Ontario Court of Appeal's just issued "first ruling" on the Province's 2015 anti-SLAPP enactments ?

It appears to strongly endorse anti-SLAPP shields. It applies one ( along with a conventional contract law analysis ) to overturn a 2016 lower court decision against environmental critics. The critics were sued personally ( and as an NFP entity - incorporated as a not-for-profit corporate entity ) by the developer for allegedly violating a GAG Agreement after one of them later provided effective lay testimony at an OMB hearing actually won by the environmentalists.

1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 issued Aug 30/18

Xcerted :

"[1] Freedom of expression is a constitutionally-protected right in Canada.

The free and open expression of divergent, competing, and strong viewpoints on matters of public interest is essential to personal liberty, self-fulfillment, the search for the truth, and the maintenance of a vibrant democracy.

[2] From time to time, those who are the target of criticism resort to litigation, not to vindicate any genuine wrong done to them, but to silence, intimidate, and punish those who have spoken out.

Litigation can be a potent weapon in the hands of the rich and powerful.

The financial and personal costs associated with defending a lawsuit, particularly one brought by a deep-pocketed plaintiff determined to maximize the costs incurred in defending the litigation, can deter even the most committed and outspoken critic.

[3] Lawsuits brought to silence and/or financially punish one’s critics have come to be known as Strategic Lawsuits Against Public Participation (“SLAPP”).

Defamation lawsuits, perhaps because of the relatively light burden the case law places on the plaintiff, have proved to be an ideal vehicle for SLAPPs.

[4] . . . . This appeal and the others heard with it require this court, for the first time, to interpret Ontario’s Anti-SLAPP legislation. . . " - unquote

One bottom line despite this strong statement from Ontario's Court of Appeal :

Be CAREFUL what you say ! There may be no "unsend button".

What one might think credibly is "public interest" comment, may be immediately followed by retaliation . . . coercion to confess or admit . . . gagging and even a defamation lawsuit to at least immediately shut down further criticism . . .
  The administrator has disabled public write access.
anti-SLAPP shield rejected - WALSH v BADIN ( anonymous letters) YCC 78 wars 2019/02/02 12:52  
Without reference to Taft v Gentile ( condo beefs not of ``public interest``) judge rejects summary dismissal shield ( anti-SLAPP defence ) erected upfront by alleged condo defamers at a different condo community.

Defendants are being sued for someone`s 3 anonymous letters distributed to owners in 2016-7. This upfront gate-keeping decision does not address the validity / invalidity of anyone's accusations of alleged civil wrongs whatevers. So PERSONAL defamation litigation may continue . .

(Not easy to get clean by rolling in the mud - A. Huxley ? )

Walsh v. Badin, 2019 ONSC 689 issued Jan 28 2019
  The administrator has disabled public write access.
contact webmaster