Law Times

Page 4 February 6, 2017 • Law Times www.lawtimesnews.com Case headed for the SCC Decision dismissing defamation suit a victory? BY DALE SMITH For Law Times A recent decision dis- missing a defamation suit is being hailed as a victory for public dia- logue on controversial issues, says the lawyer for one of the parties. Lawyers say that the Ontario Superior Court decision in the case — which focused on an economist who made online comments about the syndicated mortgage industry — was assist- ed by legislation recently passed in the province of Ontario. In 2015, the province of On- tario passed an act to protect freedom of expression, saying it would "reduce the risk of citi- zens being threatened with legal action when speaking out on matters of public interest." In the case, Fortress Real Developments Inc. v Rabi- doux, 2017 ONSC 167, Justice Andra Pollak said that Fortress had not and could not meet the burden of proof pursuant to the Courts of Justice Act provisions and dismissed a defamation case against Rabidoux. In the case, economist Ben Rabidoux brought for- ward a motion to dismiss For- tress' claim for damages in the amount of $150,000 for slander and libel, plus another $10,000 in damages for breach of con- tract owing to a previous settle- ment agreement reached in early 2015 when Rabidoux had posted tweets about Fortress' use of syndicated mortgages and later apologized for them. Rabidoux had not mentioned Fortress by name in tweets after the initial settlement agreement, but Fortress objected to their "sarcastic and insulting tone." As part of his motion, Ra- bidoux sought full indemnity costs as well as an award of pu- nitive damages to reverse the "li- bel chill" of the suit. Rabidoux's lawyer says the anti-SLAPP — strategic lawsuit against pub- lic participation — legislation made the case much easier than it would have been otherwise. "It forced the plaintiffs to show their cards in terms of the evidence that they had against him, and we called their bluff," says Gil Zvulony of Zvulony & Co. PC in Toronto, who was de- fence counsel for Rabidoux. "In terms of how this legisla- tion will be used in the future, this case as well as some of the other cases that have been re- ported show that if you're going to sue someone and the lawsuit involves a matter of public ex- pression, then you'd better have your evidence or harm ready. All the stuff that you may hope to get at later on, the stuff that you may hope to get from discovery — that's not going to cut it when it comes to lawsuits dealing with expressions on a matter of public interest." Zvulony says that from his own defamation law practice over the years, when a client was presented with a SLAPP suit, the cheapest and easiest way to deal with it was to back down from the speech in question. "It would be easier for some- one to delete their tweets, their Facebook posts or their blog post and issue an apology than to defend a lawsuit and drop several thousand dollars to de- fend that speech," says Zvulony. "In those rare cases where the person who spoke was prin- cipled and we were able to fight back in some cases, but even if we were to get a lawsuit dis- missed, we still would not be able to get full indemnity costs. "The defendant would still be out of pocket and lose to some extent." Fortress may yet find its way to the Supreme Court of Can- ada, as the plaintiffs have sig- nalled their intention to appeal the decision. Fortress' counsel, Jeremy Devereux of Norton Rose Fulbright LLP in Toronto, indicated that they would be pursuing the appeal. He de- clined to comment further. The legislation could be im- portant in future legal battles, says a University of Ottawa pro- fessor. "For proponents of free speech, and certainly public interest activists, the success- ful testing of the [anti-SLAPP] provisions is good news," says Lynda Collins, a lawyer and professor at the Centre for En- vironmental Law and Global Sustainability at the University of Ottawa's Faculty of Law. She was not involved in the case. "In the past, if an activist was subject to a SLAPP suit, their only recourse would be to fight the suit, and later they could bring an action for the tort of abuse of pro- cess, which was very difficult to win because it includes a collateral act requirement," says Collins. "It was just incredibly dif- ficult to prove, so, in general, there really was very little peo- ple could do, even if it was re- ally well understood by every- one involved that a SLAPP suit was exactly that. Now, we know this legislation can sometimes work. That could potentially be a game changer." Collins says that it most es- pecially levels the playing field between civil society and the corporate sector, where public interest organizations take on large multinational corpora- tions. She points out that most public interest advocates have difficulty paying for as little as five hours of legal assistance, unlike the corporate actors they may be facing in court. LT NEWS NEWS NEWS Lynda Collins says most public interest advocates have difficulty paying for legal assistance in SLAPP cases. SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED. Start with Practical Law Canada. Whether you need a surface view or a deeper understanding of a legal issue, Practical Law Canada offers up-to-date, straightforward how-to guides, annotated standard documents, checklists, and more. Our expert lawyer-editors have significant practice experience. They create and maintain hundreds of practical resources to match the needs of practitioners in the following practice areas: • Capital Markets & Securities • Corporate and M&A • Commercial Transactions • Employment • Competition • Finance • Corporate & Commercial Litigation For more information or to sign up for a free trial, visit www.practicallaw.ca © 2016 Thomson Reuters Canada Limited 00242CZ-85651-NK Daily Canadian legal news Get More Online LegalFeeds.ca

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