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
CAFCOR Forum
_GEN_GOTOBOTTOM Post Reply
TOPIC:
#19089
Will anti-SLAPP defence be WIDENED to shield CONDO CRITICISM ? Is 'PUBLIC INTEREST" widening ? 2020/06/15 19:30  
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
  The administrator has disabled public write access.
#19098
UNION ELECTION MUDSLINGING : ONCA addresses anti-SLAPP defence 2020/07/03 11:31  
not legal advice as usual.

ONCA Ontario's Court of Appeal revisits a practical application of the anti-SLAPP defence including how Ontario courts should try to handle the "public interest" hurdle upfront.

The union warfare scenario here is treated like the TAFT condo outcome of 2018. Not public interest enough for the anti-SLAPP defence.

There may still be uncertainty about whether the anti-SLAPP defence can shield hurt-speech during the personal warfare of private organizations . Think for example : allegations of bad faith or criminality or ( possibly false ? ) whatsoevers against owners, managers, Board directors, candidates, contractors . . .

Another reason for now to address issues instead of personalities.

A reason to avoid personal hurt-speech unless you have deep pockets & good lawyers . . . You usually cannot avoid interactions with your co-owners.

Respectfully, good neighbourliness ain't for sale. You may even need them someday to drag you out from under an overturned John Deere or to shoot the bear at the base of the tree . . .

Nanda v. McEwan July 2/20

ONCA rejects an anti- SLAPP shield attempted erected by critics who made harsh personal allegations against a CUPW union presidential candidate.

Defamation claimant/ losing union Presidential candidate Nanda lost & began to sue for alleged defamation.

ONCA reviews ant-SLAPP, judicial review of such usage, and how to define ‘public interest”.

ONCA orders the defamation claim to continue without the anti-SLAPP shield being possible for the defendant "speakers" .

Nanda v. McEwan, 2020 ONCA 431 issued July 2/20 http://canlii.ca/t/j8grn

update Aug 25/20 : ONCA has awarded defamation claimer plaintiff $ 5 K costs against the critics on the appeal. But remember that he lost the election. Aug 25/20 http://canlii.ca/t/j9b5v
  The administrator has disabled public write access.
_GEN_GOTOTOP Post Reply
contact webmaster