The Ontario Superior Court of Justice has for the first time imposed sanctions on a plaintiff for commencing an action found to be a SLAPP case.
The acronym SLAPP stands for 'Strategic Litigation Against Public Participation'. It refers to litigation without substantial legal merit that is brought against citizens or groups in order to silence their opposition to the plaintiff on matters of public interest, and deter by example others who might voice opposition to the plaintiff on public interest issues.
In Morris v. Johnson,1 the plaintiff was the mayor of an Ontario town. She claimed she had been libelled by anonymous postings on an Internet forum for speech on local municipal politics. At the time of the postings the plaintiff was engaged in a re-election campaign. The plaintiff sued two individuals who she alleged were moderators of the website. She proceeded against the named defendants on the basis that they had either exercised control over the publication of the posts or encouraged their publication. The mayor sued three anonymous defendants as the authors of the posts.
The action became the subject of a motion over the right of the mayor to compel various parties to provide information that the mayor said would identify the anonymous defendants. In early 2011, the court dismissed the mayor's motion on the basis that the mayor had failed to establish a prima facie case of defamation in material before the court.2 Approximately one year after election day (when the mayor was defeated), the mayor discontinued her libel action. The named defendants sought an order for costs of the action, and claimed increased costs on the ground that the action was a SLAPP case.
In assessing the defendants' arguments, Master Thomas Hawkins placed emphasis on the following:
- Both individual defendants had been vocal critics of the mayor during her term in office;
- The action was commenced less than three weeks before election day;
- The action claimed $6,000,000.00 in damages and injunctive relief;
- The action was commenced without any prior warning or demand for a retraction or removal of the posts;
- The individual defendants were immediately served with a short form notice of action issued at the local court without a full statement of claim, contrary to procedural law;
- The action was expressly brought by the plaintiff "in her capacity as Mayor" of the municipality, and was funded by the municipality;
- One of the individual defendants delivered an affidavit asserting that the mayor had commenced the action in order to silence him in the period before the election;
- The mayor provided no evidence contradicting the allegation that her motive had been to silence the defendants, or any other evidence regarding the action or why she had discontinued it.
After reviewing the facts Master Thomas Hawkins concluded, "I infer from these facts that [the mayor] was not prepared to wait and see if a demand letter would have the desired effect of silencing [the named defendants] and not prepared to wait until her lawyers prepared a statement of claim." He continued, "In my view, [the mayor] wanted to hit [the individual defendants] 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."
Master Hawkins concluded that he would award "special enhanced costs" to the defendants because, "I regard this action as SLAPP litigation designed to stifle debate about [the mayor's] fitness for office".
In awarding "special enhanced costs", Master Hawkins applied the decision of the British Columbia Supreme Court in Scory v Krannitz,3 in which the court exercised its general costs discretion to award elevated costs in a SLAPP scenario. In Scory, the plaintiff's action was completely without merit and had the effect of silencing the defendants' participation in a local public issue.
Legal measures against SLAPP cases have also been implemented in Quebec, through amendments to the Civil Code of Quebec, which allow for the possibility of damages being awarded against a plaintiff found to have brought an action improperly.4 In Ontario, a tripartite panel appointed by the Attorney General recommended in October of 2010 that a special procedure be adopted to quickly assess alleged SLAPP cases and impose sanctions where appropriate.5 It remains to be seen whether Ontario will take legislative steps to address the subject.
The costs decision in Morris may yet be subject to appellate review on the question whether Ontario's Rules of Civil Procedure authorize the making of orders as to costs having regard to SLAPP considerations. At this point, Morris stands as yet another example of continuing legal initiatives to address SLAPP cases, and more generally, to protect freedom of expression on subjects of public interest. Although such cases always involve a careful balancing between free speech and the protection of reputation, an adverse costs award may be the most practical remedy where a court finds it to have been clearly established that a plaintiff has misused the court's process for the purpose of suppressing free expression.
Footnotes
1. 2012 ONSC 5824, released Monday, October 22, 2012.
2. Morris v. Johnson, 2011 ONSC 3996 at paras. 35 and 36, per Carole J. Brown J.
3. 2011 BCSC 1344.
4. R.S.Q., c.C-25, art. 54.1 to 54.6.
5. Anti-SLAPP Advisory Panel Report to the Attorney General of Ontario (2010) (PDF). Peter A. Downard of Fasken Martineau was one of the three appointed members of the Advisory Panel, together with the panel's chair, Dean Mayo Moran of the University of Toronto Faculty of Law, and Toronto media lawyer Brian Rogers.
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