[EXTERNAL] This email was sent from outside of UCC.

Re: Platnick v Bent, I think Neil is right to raise the difficulty of assessing the merits at what is supposed to be an early stage of proceedings. (In this case, proceedings are actually well underway, e.g. a statement of defence has been filed). But I'm not sure it's that different than applying an accessibility threshold in an interlocutory injunction motion. Of course, an injunction motion doesn't determine the merits (although in defamation actions an injunction often does actually effectively bring the litigation to an end). In anti-SLAPP cases, the point is to determine whether to dismiss a proceeding entirely. This makes it more like summary judgment, but in summary judgment you have to put your best foot forward, which courts have explicitly said you don't have to do in SLAPP motions.

The responding party does not have to prove her case (and the absence of defences). She has to prove "grounds to believe" there is "substantial merit". The Court was clear that this is to be interpreted bearing in mind that there may not even be a statement of defence, let alone examinations for discovery etc. It's a sniff test so that unmeritorious actions can be dismissed at an early stage. But it should also be noted that the merits test is not the crux of the anti-SLAPP proceeding. The crux is balancing the harm to the plaintiff if the motion is granted and the harm to the public interest if the speech is not protected. The case will be dismissed unless the merits threshold is reached and the harm to the plaintiff would be greater than that to the public interest.

My sense is that by-and-large the courts are getting anti-SLAPP cases right and that the legislature was right to permit dismissal of even potentially meritorious actions where there is no real harm, the violation was technical or trivial, or the plaintiff's motives warrant it. Platnick is an interesting case. The fact that four members of the Court would have dismissed it despite the fact that: the parties involved were sophisticated; the allegations were serious and prima facie defamatory; the allegations were at least partly untrue, shows how far the Court has moved away from Hill v Church of Scientology, which was the Canadian high-water mark for the protection of reputation.

The qualified privilege issue is interesting, with the majority holding that saying things that are not necessary to fulfil your duty to communicate means you have exceeded the privilege. The dissent says that cannot be right, since that would protect very little. I worry that this will render QP much less effective.

Another fascinating issue was responsibility for republication. The majority said that the defendant should be responsible for the publications that cost the plaintiff his income, even though those publications were contrary to express commitments to keep the contents of emails on the listserv confidential. The dissent said that she should not be responsible for those republications. The majority reiterated the test of foreseeability, which is, IMO, highly problematic in this digital era.

Have a great weekend!

--Hilary

Hilary Young

UNB Faculty of Law

On Friday, September 11, 2020, 04:28:01 a.m. ADT, Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Colleagues;

I was interested to see that the Supreme Court of Canada handed down a divided opinion on the qualified privilege defence in defamation in Bent v. Platnick, 2020 SCC 23 (Sept 10, 2020) https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18459/index.do . The case was one half of a pair of decisions on Ontario’s so-called “anti-SLAPP legislation”, aimed at stopping litigation the purpose of which is to stifle public debate on important public policy issues. (The other decision was 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, handed down at the same time. I won’t comment on that one, but contract law colleagues may want to. That case seemed to be much more the sort of case that the legislation should apply to.)

On the defamation issues, in Bent there was a 5-4 majority which held that a qualified privilege defence ought to be allowed to go to full trial. The plaintiff P was a medical practitioner who had been named by the defendant B, a senior lawyer, on an email list used by lawyers, as behaving unprofessionally (it was alleged that “P “altered” doctors’ reports and “changed” a doctor’s decision as to the victim’s level of impairment”). The defendant, when sued for defamation, then tried to invoke the SLAPP legislation to claim that the defamation case should be dismissed without a full hearing.

A majority of the court (Côté J writing the judgment) held that while Bent was able to invoke the statute because the case had important public interest elements, P was able to discharge his obligation to show that “there are grounds to believe that his defamation proceeding has substantial merit and that B has no valid defence to it”.

I won’t go into the details, but I must confess to being surprised by the fact that the legislation in this sort of case ends up with the court having to conduct what seems to be a “trial before the trial” of the defamation case (in the absence of full evidence), and P came very close to not being able to even fully challenge B’s qualified privilege defence.

To quote part of the court’s summary:

“P has established on a balance of probabilities that the harm likely to be or have been suffered as a result of B’s expression is sufficiently serious that the public interest in permitting his defamation proceeding to continue outweighs the public interest in protecting B’s expression. In light of the open-ended nature of s. 137.1(4)(b), courts have the power to scrutinize what is really going on in the particular case before them. On its face, this is not a case in which one party is vindictively or strategically silencing another party; it is a case in which one party is attempting to remedy seemingly legitimate harm suffered as a result of a defamatory communication. This is not the type of case that comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage, nor does it come within the language of the statute requiring such a dismissal.”

The dissenters would have ruled that B had a fully established defence of qualified privilege and hence the claim should not have been allowed to proceed.

Regards

Neil

NEIL FOSTER

Associate Professor, Newcastle Law School

Acting Program Convener, LLB(Hons)

Faculty of Business and Law

409 Hunter St

Newcastle

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828

Blog: https://lawandreligionaustralia.blog

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

CRICOS Provider 00109J

From:	Hilary Young <hilaryanyoung@yahoo.ca>
To:	obligations@uwo.ca
	Neil Foster <neil.foster@newcastle.edu.au>
Date:	11/09/2020 13:23:19
Subject:	Re: ODG: SCC on qualified privilege in defamation, SLAPP legislation