Court Provides SLAPP Relief – But Not Enough

In 2010, Ontario’s Anti-SLAPP Advisory Panel released released its Report to the Attorney-General.  (A “SLAPP” is a “Strategic Lawsuit Against Public Participation” – a lawsuit intended to silence criticism by employing a strategy of financial attrition via legal action, usually involving a plaintiff with more significant financial resources than the defendant(s).)  The Report recommended that Ontario adopt “anti-SLAPP” legislation – a recommendation which the government has never acted upon.  The recent decision of a Master in the Ontario Superior Court of Justice in Morris v. Johnson, 2012 ONSC 5824 indicates that Ontario courts may be prepared to offer SLAPP relief even in the absence of legislation.  Unfortunately, despite this promising development, the need for anti-SLAPP legislation continues.

The relevant facts of Morris v Johnson are relatively simple: the mayor of a town commenced a defamation action against a number of defendants in connection with highly critical blog posts and comments made during an election period.  At least one of the defendants settled with the plaintiff and some defendants were never properly served – in any event, the plaintiff discontinued the action approximately one year after commencing it, and two of the defendants subsequently brought a motion seeking recovery of their legal costs in defending against the action.

In making the motion for costs, the defendant’s argued that the plaintiff’s lawsuit was a “SLAPP”, and the master concluded as follows:

[28] I infer from these facts that Mayor Morris was not prepared to wait and see if a demand letter would have the desired effect of silencing Johnson, Hogg and Bishenden, and not prepared to wait until her lawyers prepared a statement of claim.  In my view, Mayor Morris wanted to hit Johnson, Hogg and Bishenden quickly and hard, in order to silence them as her critics sooner rather than later in the weeks leading up to the October 25, 2010 municipal elections.

[29] I have therefore come to the conclusion that this action is indeed SLAPP litigation.

In light of that conclusion, the master awarded “special enhanced” costs, but not full indemnity costs.

There are a number of factors which limit the authority of the decision and which indicate why the innovation it evidences should not be viewed as a substitute for anti-SLAPP legislation.   It is a master’s decision; and the plaintiff did not file any affidavit in response to the motion and did not appear as a witness in connection with the motion.  More substantively, the point of anti-SLAPP legislation is to short-circuit defamation actions which have the effect of unjustifiably impeding public criticisms – SLAPP suits work not just because the initial delivery of a statement of claim or notice of libel action frightens off defendants, but because the prospect of a prolonged and expensive litigation battle dampens participation.  The process of defamation litigation is, in essence, the punishment envisioned by a SLAPP suit.  Inherent in the notion of a SLAPP suit is a disparity in the resources of the plaintiff and the defendant(s) – analytically, it doesn’t make a lot of sense to describe a deep-pocketed defendant as being subjected to a SLAPP suit.

Because Morris v Johnson is a costs order, while certainly helpful for defendants subjected to SLAPP suits, it fails to provide a solution which obviates the damaging power of SLAPP suits from the outset.  The facts here were quite specific and favourable to the defendants – the plaintiff dropped the action and even while it was “alive” didn’t seem to pursue it with much vigour.  But if the action had gone through to trial, and the plaintiff had still lost, and the defendants had still won their costs order, it still would not have been regarded as a victory against SLAPP lawsuits, since the dissuasion of the defendants (and of future defendants) would have occurred by the very fact that the lawsuit moved forward.  The proposals in the Anti-SLAPP Report go much further in achieving the goal of limiting the intimidation factor of SLAPP suits, and so they remain something which should be implemented.

Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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