Thabang Pebane

The appellants appealed the dismissal of their defamation action under an anti-SLAPP motion, which arose from the respondent briefly sharing a Facebook post alleging theft of charitable funds.

The Court of Appeal upheld the motion judge's decision, finding that the expression related to a matter of public interest and that the appellants failed to demonstrate sufficient harm to outweigh the public interest in protecting the expression.

The court emphasized the lack of evidence of actual harm beyond a legal presumption and the brief duration of the impugned post.

This decision addresses the costs award following the dismissal of an action under section 137.1(3) of the Courts of Justice Act (an anti-SLAPP motion).

The successful defendant sought full indemnity costs.

The plaintiffs argued for partial indemnity due to the defendant's delay in bringing the anti-SLAPP motion.

The court awarded full indemnity costs for the anti-SLAPP motion itself and partial indemnity costs for the remainder of the action, finding that delay warranted a discount from full indemnity for the action's costs but not a "double discount" or a reduction for the motion costs.

The defendant brought an anti-SLAPP motion under subsection 137.1(3) of the Courts of Justice Act to dismiss a defamation action.

The court found that the defendant's expression, a Facebook post concerning the management of charitable funds for a dam project in Pakistan, related to a matter of public interest.

While the plaintiffs' defamation claim was found to have substantial merit, they failed to demonstrate that the harm suffered was sufficiently serious to outweigh the public interest in protecting the expression.

The court noted the plaintiffs provided no evidence of harm beyond legal presumption and failed to establish a causal link between the defendant's short-lived post and any significant harm, especially given other active defamatory posts.

Consequently, the action was dismissed.