Freedom of expression

The Centre for Free Expression (CFE) sought leave to intervene as a friend of the court in a civil appeal arising from the dismissal of a motion under s. 137.1 of the Courts of Justice Act (Ontario) in a defamation action.

The Court of Appeal for Ontario, per Roberts J.A., dismissed the motion for intervention, finding that while CFE had a clear mandate and interest in freedom of expression issues, its proposed submissions would not provide a distinct or useful contribution beyond those of the parties.

The court emphasized that intervention is to be granted sparingly, particularly in private disputes, and that the issues raised by CFE were already adequately addressed by the parties.

The applicant, Charles Frederick Armstrong, challenged the constitutionality of the Township of Russell’s Sign By-Law, which restricted the display of municipal election signs.

The court found that the by-law violated Armstrong’s freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms and that the violation was not justified under section 1.

The court also found that the Township was unjustly enriched by requiring Armstrong to pay $450 for the return of his signs, which had been removed under the unconstitutional by-law.

The appellants appealed the dismissal of their anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, which sought to dismiss a counterclaim brought against them by the respondents.

The motion judge found that the appellants' expression did not relate to a matter of public interest, failing the initial threshold for an anti-SLAPP motion.

The Court of Appeal upheld this decision, concluding that the appellants' expressions were primarily concerned with private property interests (e.g., tree protection, fencing, sightlines) related to an adjacent retirement facility development, rather than broader public concerns, despite the development itself having public interest aspects.

The court affirmed the deferential standard of review for a motion judge's finding on whether an expression relates to public interest and confirmed that the motion judge did not err by considering the context of the expressions without impermissibly assessing motivations.

The offender, Kevin Goudreau, was convicted of two counts of criminal harassment and one count of breaching his probation order, stemming from a loud, racist, and homophobic rant in his backyard that terrified his gay neighbours.

Two counts of uttering death threats were stayed.

The court considered aggravating factors, including the hateful language and significant impact on the victims (who were forced to move), and mitigating factors such as the offender's recent sobriety and completion of rehabilitation programs.

The Crown sought six months of incarceration, while the offender advocated for a conditional sentence.

The court determined that a conditional sentence was not appropriate due to the pressing need for denunciation and deterrence.

The final sentence included intermittent incarceration and a three-year probation order with specific, tailored conditions, such as restrictions on public expression of hate and alcohol consumption outside the home, aimed at protecting the community and facilitating the offender's reintegration.

The plaintiff sought summary judgment against two defendants for intentional infliction of emotional distress and publicity placing the plaintiff in a false light.

The defendants, including the plaintiff's father who murdered her mother, created and disseminated a website containing false and defamatory information blaming the plaintiff for her mother's death.

The court found no genuine issue for trial, held the defendants liable for both torts, and granted a permanent injunction to prevent further dissemination of defamatory content.

Damages were reserved for a later hearing.

The defendant, Kevin Goudreau, was charged with two counts of uttering threats to cause death, two counts of criminal harassment by repeatedly communicating, and one count of breaching his probation order.

The charges arose from a loud, racist, and homophobic rant in his backyard, heard by his gay neighbours.

The court found that Goudreau knowingly conveyed threats and repeatedly communicated with the complainants, causing them to fear for their safety.

The court determined that "repeatedly" could mean "persistently" in the context of a lengthy, continuous tirade.

Goudreau was found guilty on all counts, with the court reserving judgment on whether the uttering threats charges should be conditionally stayed under the Kienapple principle.

The plaintiff, a former General Manager, brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the defendant employer's counterclaim for damages related to alleged misconduct and breach of contract.

The court found that the plaintiff's statements in his statement of claim, which formed the basis of the motion, did not relate to a matter of public interest, as the dispute was purely private.

Although the counterclaim was found to arise from the plaintiff's expression, the court determined that the public interest in allowing the counterclaim to proceed outweighed the public interest in protecting the expression, given the private nature of the dispute and the substantial merit of the counterclaim.

The motion was dismissed.

The Crown appealed the acquittal of William Whatcott on a charge of willfully promoting hatred against gay men, stemming from the distribution of flyers at the 2016 Toronto Pride Parade.

The trial judge had acquitted Whatcott, finding the flyers did not constitute hate speech and excluding expert evidence on anti-gay discrimination tropes and evidence of prior discreditable conduct.

The Court of Appeal allowed the Crown's appeal, finding the trial judge erred in excluding the expert evidence, which was necessary to understand how the flyers perpetuated negative stereotypes and promoted hatred in a broader social and historical context.

A new trial was ordered.

This is a consolidated appeal from anti-SLAPP motions dismissing defamation actions.

The actions arose from tweets and an email suggesting the appellant's medical clinic discriminated against the LGBTQ community.

The motion judge dismissed both actions, finding the communications were fair comment.

The Court of Appeal found the motion judge erred regarding Evans-Bitten's fair comment defence, concluding there were grounds to believe malice would defeat it.

After conducting the public interest weighing, the Court found the public interest in allowing the appellant's action against Evans-Bitten to proceed outweighed the public interest in protecting her expression, given the substantial harm and low public interest in protecting gratuitous personal attacks.

However, the Court upheld the dismissal of the action against Kirkconnell and Smith, finding no grounds to believe their fair comment defence would fail due to recklessness.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

This is a motion for leave to intervene brought by the Canadian Civil Liberties Association (CCLA) in an appeal concerning the dismissal of an anti-SLAPP motion.

The underlying dispute involves a defamation and harassment action by 40 Days for Life against Brooke Dietrich for online protest activities.

The CCLA sought to intervene to make submissions on the application of protest jurisprudence to online expressive activity and the development of the tort of internet harassment in light of freedom of expression.

The Court of Appeal for Ontario granted the CCLA leave to intervene, finding that it could make a useful contribution on public policy issues without causing injustice or undue prejudice to the parties, despite the motion being brought at a late stage.

The appellant, an employee, sued for wrongful dismissal.

The respondent counterclaimed for $150 million alleging breach of fiduciary duties.

The appellant moved to dismiss the counterclaim under s. 137.1 of the Courts of Justice Act (anti-SLAPP), to dismiss it under r. 21 as frivolous/vexatious, for leave to amend his Statement of Claim for deferred bonuses, and for summary judgment.

The motion judge dismissed the anti-SLAPP motion and the leave to amend, and deferred the other motions.

The Court of Appeal allowed the appeal, finding the motion judge erred in interpreting "arises from" too narrowly for the anti-SLAPP motion, and that the counterclaim lacked substantial merit and valid defences.

The Court also found the motion judge erred in deferring the r. 21 and summary judgment motions, and in refusing leave to amend the Statement of Claim, as the bonus claim was an additional head of damages, not a new cause of action.

The counterclaim was dismissed, the amendment allowed, and the summary judgment motion returned to the lower court.

The City of Ottawa brought an ex-parte motion for an interim injunction against "Persons Unknown" (Freedom Convoy 2022) to restrain ongoing violations of municipal by-laws during a demonstration.

The court granted the injunction, finding overwhelming evidence of by-law breaches and significant disruption to city functions and public safety.

The decision applied the modified test for statutory injunctions under the Municipal Act, emphasizing the public interest in law enforcement over the need to prove irreparable harm or balance of convenience.

The Automotive Parts Manufacturers' Association (APMA), supported by the City of Windsor and the Attorney General of Ontario, brought a motion for an interim interlocutory injunction to restrain a protest that had obstructed access to the Ambassador Bridge in Windsor, Ontario.

The protest, related to COVID-19 restrictions, caused significant economic harm to the automotive industry and disrupted the local community.

The court applied the three-part RJR-MacDonald test for injunctions and the modified test for statutory injunctions to enforce municipal by-laws.

The court found overwhelming evidence of serious issues to be tried (public nuisance, intentional interference with economic relations) and irreparable harm to the economy and community.

It concluded that the balance of convenience strongly favored granting the injunction, emphasizing that Charter rights to freedom of expression do not extend to unlawful acts that impede public access and cause substantial harm.

The Court of Appeal heard two appeals concerning defamation actions dismissed under s. 137.1 of the Courts of Justice Act (anti-SLAPP legislation).

The motion judge had dismissed the actions, finding no valid defence in one case and a potentially valid defence in the other, and in both cases, the public interest in protecting expression outweighed the harm to the plaintiffs.

The Court of Appeal dismissed both appeals, upholding the dismissal of the defamation actions.

However, it allowed the cross-appeals on costs, finding that the motion judge erred in not awarding full indemnity costs to the successful defendants, as the actions bore the hallmarks of SLAPP lawsuits.

This is an appeal from a motion judge's decision dismissing an anti-SLAPP motion.

The appellants (B'nai Brith Canada et al.) sought to dismiss a defamation action brought by the respondent (Canadian Union of Postal Workers - CUPW) under s. 137.1 of the Courts of Justice Act.

The defamation action arose from press releases published by B'nai Brith alleging CUPW supported terrorism and was anti-Semitic due to its association with a Palestinian union.

The motion judge found CUPW had a substantial case for defamation and that the appellants' defences (justification, fair comment, responsible communication) had serious flaws, and that the public interest favoured allowing the action to proceed.

The Court of Appeal upheld the motion judge's decision, finding no reviewable error in the application of the anti-SLAPP test, including the assessment of the appellants' defences and the public interest balancing.

The appeal was dismissed.

The plaintiffs, Ezra Levant and Rebel News Network Ltd., commenced a defamation action against Brendan Demelle and The Narwhal News Society.

Demelle brought a motion under section 137.1 of the Courts of Justice Act to dismiss the action as a strategic lawsuit against public participation (SLAPP).

The court found that Demelle's expression related to a matter of public interest.

While the plaintiffs established grounds to believe their defamation claim had substantial merit and that Demelle had no valid defences (justification, fair comment, responsible communication), they failed to provide sufficient evidence of specific harm suffered as a direct result of Demelle's publication.

Consequently, the court dismissed the plaintiffs' action, as they did not clear the threshold of showing harm and causation required for the public interest in continuing the proceeding to outweigh the public interest in protecting the expression.

Al Jazeera Media Network brought a motion under section 137.1(3) of the Courts of Justice Act to dismiss a defamation action commenced by Rebel News Network Ltd. as a strategic lawsuit against public participation (SLAPP).

Rebel News alleged three defamatory statements in an internet article and YouTube video published by Al Jazeera.

The court found that Al Jazeera satisfied its initial burden that the proceeding arose from an expression relating to a matter of public interest.

The burden then shifted to Rebel News to show substantial merit, no valid defence, and that the harm suffered outweighed the public interest in protecting the expression.

The court found Rebel News established substantial merit for its defamation claim.

However, Rebel News failed to show that Al Jazeera had no valid defence, specifically regarding the defence of responsible communication on matters of public interest, as the record raised credibility issues precluding a "deep dive" into the evidence at this stage.

Furthermore, Rebel News failed to provide specific evidence of harm and causation, leading the court to conclude that the public interest in free expression and public debate outweighed the public interest in permitting the action to continue.

Consequently, Al Jazeera's motion was granted, and the action was dismissed.

The appellants, Subway, appealed the dismissal of their $210 million defamation action against the Canadian Broadcasting Corporation (CBC) under an anti-Strategic Litigation Against Public Participation (SLAPP) motion (s. 137.1 of the Courts of Justice Act).

The action arose from a CBC Marketplace report alleging Subway's chicken products contained only 50% chicken DNA.

The Court of Appeal found that the motion judge erred in applying a higher standard for the "no valid defence" test and in weighing the public interest.

The Court determined that Subway had established grounds to believe CBC had no valid defence of responsible communication and that the public interest in allowing the action to proceed outweighed the public interest in protecting the expression, given the significant reputational and financial harm alleged and the lack of urgency in disseminating unverified information.

The appeal was allowed, and the defamation action against CBC was permitted to continue.

The appellant challenged the Toronto Police Services' (TPS) authority to impose bag searches as a condition of entry into Allan Gardens during the 2010 G20 summit, alleging tortious conduct and Charter breaches.

The Court of Appeal found that the TPS lacked legal authority, as agents of the City under the Trespass to Property Act, to create such a condition.

The court held that the police conduct infringed the appellant's freedom of expression (s. 2(b)), right against arbitrary detention (s. 9), and right against unreasonable search and seizure (s. 8) under the Charter.

The appeal was allowed, and the appellant was awarded modest Charter damages.