Carlos P Martins

The Court of Appeal for Ontario dismissed Windrift Adventures Incorporated’s appeal from the dismissal of its defamation action under s. 137.1 of the Courts of Justice Act.

The court found no error in the motion judge’s conclusion that the action lacked substantial merit and that the harm suffered was not sufficiently serious to outweigh the public interest in protecting the respondents’ expression.

The court also rejected the appellant’s argument that a finding of “abuse” is required for dismissal under s. 137.1, clarifying that the test remains as set out in Pointes Protection Association.

The plaintiffs sued airlines for significant losses, including the loss of a traditional title and the death of their daughter, after Lawrence Mpamugo was denied entry to the United States, preventing them from taking their booked flights to Nigeria.

Defendant Delta Air Lines, Inc. moved to dismiss the claims for disclosing no reasonable cause of action.

The court found that the claims in contract and negligence were not supported by law, as airlines are not liable for passengers' immigration issues, and the Montreal Convention limits liability to damages occasioned by delay in carriage, not denial of entry.

The court dismissed the claims against Delta, allowing only a potential claim for a refund of unused tickets to be transferred to Small Claims Court.

This is a costs endorsement on appeal from a Superior Court decision.

The appellant, Bondfield Construction Company Limited, appealed from orders of Justice E.M. Morgan dated March 28, 2018 and May 29, 2018.

The respondents, The Globe and Mail Inc. and associated journalists, had brought a motion.

The Court of Appeal addressed whether CCAA proceedings against Bondfield precluded the court from addressing cost issues relating to the appeal.

The court found no reason to depart from the presumption in section 137.1(8) regarding costs on the motion, resulting in no order as to costs.

However, regarding costs on the appeal, the court awarded costs to Bondfield in the amount of $8,000, inclusive of disbursements and relevant taxes, noting that the jurisprudential landscape had shifted significantly between the motion and the appeal.

Bondfield Construction Company Limited appealed the dismissal of its defamation action against The Globe and Mail Inc. under section 137.1 of the Courts of Justice Act (anti-SLAPP provision).

The motion judge had dismissed the action, finding that Bondfield failed to meet the requirement to show that the defendants had "no valid defence whatsoever." The Court of Appeal allowed the appeal, holding that the motion judge had misinterpreted the statutory threshold.

The correct test requires the plaintiff to show only that a reasonable trier could conclude that the defendant did not have a valid defence, not that the defendant has no defence whatsoever.

The court found that Bondfield met this lower threshold regarding the defences of fair comment and responsible communication.

On the public interest balancing analysis, the court found that the case had none of the hallmarks of a classic SLAPP suit and should proceed to trial on its merits.

The applicants, three police officers charged with sexual assault, sought to vary a sealing order to prohibit publication of information from an Information to Obtain (ITO) DNA warrants, arguing it was necessary to preserve trial fairness and prevent witness tainting and stigmatization.

The Crown supported the ban for consistency with a prior publication ban on conflict motion materials.

The media respondents opposed the ban.

The court dismissed the application, finding the applicants failed to provide sufficient evidence to meet the Dagenais/Mentuck test for a publication ban, which requires demonstrating a serious risk to the proper administration of justice that cannot be prevented by alternative measures, and that the salutary effects outweigh the deleterious effects on freedom of expression and public right to know.

The court emphasized the presumptive openness of warrant materials and the public interest in the investigation of police officers.