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Page 4 July 23, 2018 • law Times www.lawtimesnews.com NEWS NEWS NEWS time proving that the defence cannot possibly succeed," he says. The threshold for defen- dants to meet to have an action dismissed under the anti-SLAPP test as it has been interpreted in the Superior Court is "pretty low," he suggests. The comments made by B'nai Brith were in the public interest, stated Rady in her ruling. "Canadians have a public in- terest in receiving information on the conf lict in the Middle East and on individuals involved with government parties and their stance on the issue," she wrote. As a result, the burden shifts to the plaintiff to show there was no val- id defence, the judge explained. A belief does not have to be reasonable, added Rady, only that it is held honestly for the defence of fair comment to be available. "Because it is arguable that a person could honestly believe that support for the Alayan fam- ily constitutes support for ter- rorists, a valid defence is avail- able to the defendant," she wrote. MacKinnon, who is not in- volved in the litigation, says some aspects of the judge's ruling are not clear. "There is very little analysis on the fact-versus-opin- ion distinction and the meaning of what Justice Rady refers to as "the comment." We don't know what "the comment" is, he adds. "I am not convinced there is a proper consideration of the very first issue — is this a statement of fact or an opinion?" MacKinnon says. LT action had been allowed to pro- ceed. The lawsuit that Lascaris filed is based on a posting by B'nai Brith on its website in August 2016 and then re-tweeted in the spring of 2017. The 600-word posting stated that a "B'nai Brith Canada inves- tigation has revealed" that Las- caris, as the official justice critic of the Green Party of Canada, "has used social media to advo- cate on behalf of terrorists who have murdered Israeli citizens." It references a meeting be- tween Lascaris and Muham- mad Alayan, the father of Bahaa Alayan — who allegedly killed three civilians on a Jerusalem bus and was shot to death by Israeli security forces. Lascaris posted on Facebook a picture of his meeting and stated the young man was killed "extrajudicially." The B'nai Brith article, which included other criticisms of Las- caris, was first posted on the eve of the annual convention of the Green Party. One resolution, which was submitted by Las- caris, was to support the use of boycotts, divestment and sanc- tions against Israel and Israeli companies to protest against its treatment of the Palestinian people. Lascaris says he has repeat- edly condemned attacks on ci- vilians and only filed the lawsuit because B'nai Brith continued to state that he supported ter- rorists. The anti-SLAPP legisla- tion came into force in Ontario nearly three years ago. Since then, there have been a number of Superior Court rul- ings on how to apply the provi- sions in the statute. The Ontario Court of Appeal heard a number of cases together on the legisla- tion, just over a year ago, but the rulings are still on reserve (as of press time they had not been is- sued). Iain MacKinnon, a Toronto lawyer who regularly acts for media and in libel cases, says guidance from the Court of Ap- peal is needed. "The law appears to be shift- ing in favour of defendants [in libel actions]," says MacKinnon, a partner at Linden & Associates in Toronto. "Plaintiffs have a difficult The law society tribunal ulti- mately said it would grant per- mission for Yantha to surrender his licence on July 31 at the latest, due to the "exceptional circum- stances" surrounding Yantha's testimony about depression and alcohol addiction. "That's a concession. It doesn't necessarily feel that way to Mr. Yantha. But it's actually a significant concession to allow him to surrender rather than re- voke," Singer says. In the case, the law society's investigation concluded that 10 of Yantha's accounts represented an overbilling of $29,540.61. Yantha told the law tribunal that he had used alcohol to self- medicate after becoming de- pressed beginning in the early 2000s. Yantha also said he "felt that seeking help would dimin- ish potential clients' confidence in him," according to the law tribunal's decision. The decision said a psychiatrist also submit- ted a report that diagnosed Yan- tha with "disabling" major de- pressive disorder but noted that Yantha is hesitant to seek treat- ment in his small community of about 3,000 people. The overbillings were unin- tentional and stemmed from a "fog of everything going on in [his] life," Yantha told a law society tribunal panel. The law society tribunal said it "heard no evidence of any practitioner who would be willing to monitor the restrictions and supervise" Yan- tha. The law society tribunal said in the decision that it recognizes the duty under the Ontario Hu- man Rights Code to accom- modate disability to the point of undue hardship. But the cir- cumstances of the case would not "make it obvious" to the pub- lic and to other lawyers that they no longer need to be concerned about Yantha's "honesty and in- tegrity," the law society tribunal said in the decision. The law society declined to comment further, saying the de- cision speaks for itself. "[We] accept that the Licens- ee's depression and alcoholism made him reckless. We accept that his depression and alcohol- ism are causally connected to the misconduct we found," the law society wrote. "In our view, accommoda- tion in this case, such as a long suspension with oversight and rehabilitation, would cause un- due hardship to the public inter- est, to the Law Society's reputa- tion as a legal regulator, and to the reputation of the professions the Law Society regulates. We have already found that the Li- censee might well misconduct himself in the same way again, since we saw no evidence of his full acceptance of the serious- ness of his condition and the recommended treatment." Mental health issues have been a focus for some time within the law society, which said in its 2015 to 2019 strategic plan that it would "consider opportunities for additional mental health sup- ports and resources." The LSO's Mental Health Strategy Task Force put together a long-term strategy for the professional regu- lator, which was adopted. Robert Schipper, who acts as duty counsel for the law society tribunal issues through The Ad- vocates' Society, says it is not un- common for lawyers with these types of disabilities to experience fear and panic when facing inqui- ries from the law society. Schip- per says he expects that there will continue to be more cases involv- ing mental health issues. "The law society has a duty and will continue to have a duty in that regard," Schipper says. "They even have a program that can provide assistance to lawyers with various types of disabilities . . . as part of their responsibility to the profession and to the public, too, which they see as their mandate." LT Lawyer will surrender licence Continued from page 1 Continued from page 1 Organization met test set out in anti-SLAPP statute © 2018 Thomson Reuters Canada Limited 00250IS-A89378-CM The only source you need to connect to the right witness or challenge expert evidence Print + ProView eBook Order # L7798-8104BE-65203 $270 Softcover + eBook approx. 140 pages March 2018 L7798-8104BE ProView eBook only Order # A00292-18ON-65203 $225 Print only Order # L7798-8104-65203 $225 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. *Not available to trade bookstores, third-party distributors, and academic institutions. 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