Anti-SLAPP laws help keep frivolous lawsuits out of the courts, but not every province has them

On a recent episode of the podcast The Construction Life, a host and guest were joking about whistling at “a sexy woman on the street” and pretending to grab at her. Carpenter Natasha Fritz then asked to come on the show to talk about sexual harassment in the construction industry.

A meeting was set up but the podcasters, Manny Neves and Jim Caruk, changed their minds. In response, Fritz created an Instagram post, alternating clips from the podcast with statistics about sexual harassment and violence. Neves and Caruk then filed a $15.25 million defamation lawsuit.

A little over a week later, the podcasters said they were withdrawing the lawsuit. They were wise to do so because it had virtually no chance of success.

Had they pursued it, the podcasters’ case would have been a candidate for quick dismissal under an “anti-SLAPP” law enacted in Ontario in 2015.

SLAPP stands for Strategic Lawsuit Against Public Participation — a lawsuit with little or no merit, targeting public interest speech and perhaps intended to stifle criticism. The law allows cases to be dismissed if they relate to public interest speech unless the case has merit and proceeding is in the public interest.

The problem of identifying SLAPPs

The anti-SLAPP law addresses a thorny problem: anyone can sue anyone.

If I don’t like what you say, but it’s perfectly defensible, I can still sue you for defamation. If I have more money than you, I can punish or silence you by suing, even if I won’t ultimately win.

While the law of defamation is carefully balanced to protect both reputation and the right to expression, it can take years and a small fortune to defend against it.

Cases with little or no merit should be kept out of the courts – especially if they are a means to threaten or silence critics. The problem is in identifying such lawsuits without having a trial.

Ontario’s solution to the problem

Since 2015, lawsuits in Ontario can be dismissed at an early stage if they target expression on a matter of public interest. These tend to be defamation cases, though not always.

Public interest is defined broadly: those matters in which some people would have a genuine interest. Lawsuits targeting expression on a matter of public interest will only survive the motion to dismiss if two things are proven: first, there is some evidence that the claim will succeed; and second, the harm in dismissing the case outweighs the harm in letting it proceed.

If a case is dismissed, the party who brought the lawsuit must fully compensate the other party for their legal costs, which can be significant. This makes it riskier for someone to sue for defamation.

The Construction Life lawsuit: A case study

While the construction podcast case was not tested under the anti-SLAPP law, it is exactly the kind of case the law was meant to address. This may explain why it was so quickly withdrawn.

On an anti-SLAPP motion, a court would not have decided whether Fritz’s Instagram post was defamatory – that would likely require a trial and defeat the purpose of the motion. Rather, it would have decided whether the podcasters’ suit arises from expression on a matter of public interest, whether there is merit to the case and whether the harm to the plaintiff in dismissing the case outweighs the harm to the public in letting it proceed.

Fritz’s Instagram post calling out the podcast for its sexism is clearly a matter of public interest. Some people have a genuine interest in sexism in the construction industry.

Whether the post is defamatory is impossible to say without knowing more about the podcasters’ allegations. That said, it would likely be protected by defences such as truth or fair comment. The podcasters case likely lacked “substantial merit.”

Finally, and most importantly, the court would have had to balance harms in dismissing the case versus letting it go to trial. While this analysis would depend on the law and evidence presented on the motion, the podcasters would have had an uphill battle.

While the allegations of sexism against Neves and Caruk are serious, they are grounded in the men’s own words, and there is considerable public interest in allowing citizens to call out what they perceive to be sexist attitudes.

Room for improvement

This is largely a good news story: the law has recently evolved to protect public interest speech. And the anti-SLAPP law may have helped convince the podcasters to withdraw their lawsuit.

Unfortunately, though, such laws only exist in Ontario and, since 2019, in British Columbia. Québec has its own, quite different, rule targeting SLAPPs, but it is arguably less effective because it focuses on the motives for bringing a lawsuit. This is why Ontario adopted a different approach.

It’s time the other provinces — perhaps even Québec — follow Ontario and B.C.‘s lead.

Ontario’s law was carefully crafted and has now been tested and interpreted in the courts for five years including, recently, in the Supreme Court of Canada.

Other Canadian provinces and territories should simply adopt the wording in Ontario’s legislation, as B.C. did. This would tilt the balance in favour of public interest speech without unduly restricting a person’s right to sue to protect their reputation.

The law protecting Fritz’s right to express herself should apply to all Canadians.

Hilary Young, Associate Professor, Law, University of New Brunswick

This article is republished from The Conversation under a Creative Commons license. Read the original article.