Ontario’s top court has allowed a construction company’s defamation lawsuit against The Globe and Mail to proceed, after ruling that the lawsuit was not barred by a provincial law meant to protect freedom of expression.
Instead, in an important test case for investigative journalism, the court said a 2015 law protecting the news media is meant to apply only in limited situations, such as where there is a clear attempt at intimidation, or a power imbalance.
The 3-0 ruling from the Ontario Court of Appeal comes in a case in which Bondfield Construction Co. Ltd. sued The Globe for defamation over five articles in a seven-part series in 2015 and 2016. The series explored links between that company’s president and a senior executive at St. Michael’s Hospital in Toronto. The hospital had awarded a $300-million contract to the company for the building of a critical care facility.
A lower-court judge had dismissed the defamation suit last year, citing the Protection of Public Participation Act, also known as an anti-SLAPP law, one of several in North America protecting the news media and individuals from lawsuits intended to silence them. (SLAPP stands for strategic lawsuit against public participation.)
But the appeal court overturned that ruling on Monday, saying the law is intended only to screen out those who attempt to use litigation coercively to silence others. The court did not rule on the defamation case itself. “Unlike SLAPP suits which reek of the plaintiff’s improper motives, claims of phantom harm, and bullying tactics, this litigation smells of a genuine controversy,” Justice David Doherty wrote for the court.
“There is no history of Bondfield using litigation or the threat of litigation to silence critics. There is no financial or other power imbalance that favours Bondfield over The Globe. There is no suggestion of any punitive or retributory purpose motivating Bondfield’s lawsuit."
David Walmsley, The Globe and Mail’s editor-in-chief, said: “The Globe is reviewing the decision.”
Kevin O’Brien, a lawyer representing Bondfield, said in an e-mail that the company is “extremely pleased” with the ruling, and “looks forward to vigorously moving forward with its action against The Globe for the serious damages it has suffered as a result of the articles.”
In a separate case, the court restored another defamation lawsuit that had been set aside by a lower court because of the anti-SLAPP law, and for largely the same reasons. Dimitri Lascaris, a former justice critic for the federal Green Party, alleged that B’nai Brith Canada, a Jewish community organization, had falsely said on multiple occasions that he supports terrorists.
“I actually happen to be a strong supporter of anti-SLAPP legislation, but I agree with the Court of Appeal that the circumstances of this case did not warrant dismissal.” He added that he agrees with the court that the hallmarks of anti-SLAPP cases are intimidation and coercion. “I don’t have any advantage of over the defendant in terms of resources. I don’t have any history of using litigation to silence people.”
David Elmaleh, a lawyer representing B’nai Brith Canada, declined to comment, other than to say the organization is considering seeking leave to appeal to the Supreme Court.
In the Bondfield lawsuit, Superior Court Justice Edward Morgan had dismissed the case reluctantly, saying that the law provided it could go forward only if The Globe had “no valid defence.” Because The Globe has a couple of possible defences (fair comment and responsible communication), he tossed the lawsuit. But the appeal court said “no valid defence” was a much lower bar than that – it meant that Bondfield needed to show only that a reasonable judge or jury could reject The Globe’s defences.