Lower court judge properly considered public interest and there was valid defence to lawsuit
A defamation claim had no real prospect of success and a lower court judge made no errors in his weighing of the public interest in determining that, the Ontario Court of Appeal has ruled.
The respondent shared a petition through leaflets and posts on Facebook and Change.org. The petition complained about the leadership of the appellant, an imam at the Islamic Society of York Region in Ontario.
The appellant brought a statement of claim against the respondent. He alleged defamation relating to a passage in the petition under the heading “Lack of Transparency and Accountability.”
The respondent filed an anti-SLAPP (strategic lawsuit against public participation) motion to dismiss the appellant’s defamation suit under s. 137.1 of Ontario’s Courts of Justice Act, 1990.
In November 2021, Justice R. Cary Boswell of the Ontario Superior Court of Justice granted the respondent’s motion. He found that the respondent made an expression relating to a matter in the public interest, which satisfied the criteria of s. 137.1(3) of the Act.
The motion judge then addressed the appellant’s argument that he should not dismiss the defamation claim since it met the requirements of s. 137.1(4) of the Act.
Regarding the substantial merit prong under s. 137.1(4), the judge ultimately found no grounds to believe that the claim had substantial merit, although he accepted that the challenged excerpt in the petition did suggest that the appellant lacked accountability and transparency. This statement was defamatory but not to the degree that the appellant alleged, the judge explained.
As for the valid defences prong under section 137.1(4), the judge saw no grounds to believe that there was no valid defence under s. 5(1) of Ontario’s Libel and Slander Act. The notice requirement under s. 5(1) was potentially applicable and was possibly not satisfied by the appellant, the judge said.
With respect to weighing the public interest under s. 137.1(4), the judge held that the reputational harm that the appellant would suffer did not outweigh the public interest in protecting the respondent’s expression, which engaged the values of truth-seeking and participation in public decision-making despite making a falsehood.
In Bangash v. Patel, 2022 ONCA 763, the Court of Appeal dismissed the appeal and agreed with the motion judge’s decision.
First, the appellant contended that there were grounds to believe that his defamation claim had substantial merit. The judge’s analysis made a “deep dive” into the case, which was improper on an anti-SLAPP motion, the appellant said.
The Court of Appeal rejected this argument and upheld the judge’s finding that the defamation claim lacked a real prospect of success. The judge was entitled to situate the challenged passage within the context of the entire petition, the appellate court ruled.
Second, the appellant asserted that the judge erred in his weighing exercise. The appellate court disagreed.
The judge knew the facts that were in dispute and the values in play, identified the correct test, considered the appropriate factors including the disproportionality between the resources needed for the litigation and the damages expected to be awarded, and properly weighed the harm to the appellant and the public interest, the appellate court concluded.
Lastly, the Court of Appeal saw no need to tackle the appellant’s ground of appeal regarding the valid defences prong.
