Earlier this year, a lawsuit was filed in the Ontario Superior Court of Justice on behalf of 20 people and businesses who characterize themselves as “victims” of the Trudeau government’s use of the Emergencies Act to quell the protests, seeking $44 million in compensation and related relief arising from what it says was the “unjustified and unconstitutional actions” of the government and the Ottawa police. In addition to claims against the federal government and the police, an action has also been launched against the Canadian financial institutions that followed the government’s orders to freeze the plaintiffs’ bank accounts.
The Canadian Anti-Hate Network (CAHN) and its founder, Bernie Farber, also found themselves caught up in the lawsuit, with the plaintiffs bringing claims of defamation and civil conspiracy against them. They argued CAHN and Farber provided false information to other defendants and media organizations, which was designed to harm them while also providing false or highly exaggerated information to the various Crown and police defendants in support of the invocation of the Emergencies Act and the enactment of the impugned regulations.
But CAHN and Farber hit back by saying the case is a “classic” strategic lawsuit against public participation (SLAPP), which is designed to silence people by burdening them with a legal case until they abandon their criticism. Their argument was the defamation claim was deficient because the pleading failed to include any particulars of the alleged defamatory statements, and the conspiracy claim was in essence a dressed-up defamation claim that ought to be dismissed.
Ontario Superior Court Justice R. Ryan Bell agreed, granting CAHN's and Farber’s request to have it dismissed under s. 137.1 of the Courts of Justice Act, which is designed to protect against SLAPPs (Cornell v. Trudeau, 2024 ONSC 5343). She noted that a statement of claim in a defamation action must disclose a coherent body of fact about the elements of a claim for defamation — and the plaintiffs’ statement of claim did not do that.
“Instead, the claim of defamation against [CAHN and Farber] consists only of several bald allegations that amount to no more than a fishing expedition, such that the CAHN defendants are left in the dark about the claim to be met,” she wrote. “In addition, the tort of defamation requires that the plaintiff be identified by the defendant. However, the bald allegations and unparticularized expressions in the statement of claim do not identify any of the plaintiffs.”
In order to prove conspiracy, Justice Bell noted it is necessary to discretely set out the particular acts of each co-conspirator so that each defendant can know what they are alleged to have done as part of the conspiracy.
“This is because although conspiracy is a tort committed by a group, the liability of each defendant arises because they individually participated as a member of the group. It is not appropriate to lump all the defendants together into a general allegation that they conspired to injure the plaintiff,” she wrote. “In this case, the conspiracy claim consists of nothing more than bald assertions and lumps all the defendants together.”
Justice Bell concluded there was no valid claim against CAHN and Farber.
“There is a public interest in not deterring non-profit organizations from participating in public affairs. In my view, the claim against the CAHN defendants is precisely the type of claim that s. 137.1 is intended to weed out,” she wrote. “Any public interest in permitting the proceeding to continue against the CAHN defendants is far outweighed by the public interest in protecting the impugned expressions.”
Jeff Saikaley of Caza Saikaley LLP, who represented CAHN and Farber, said his clients were “very pleased” with the ruling.
“CAHN and Mr. Farber should never have been included in this litigation,” he said. “Our clients were of this view from the very first day they were made aware of the claim and feel vindicated that the Court reached this same conclusion.”
Saikaley said the court was helpful in making it clear that a plaintiff cannot rely on its own deficiencies in pleading a proper claim in defamation — or otherwise — and then attempting to argue that a s. 137.1 motion is premature because of those same deficiencies.
“As the Court found, the plaintiffs attempted to rely on their own failure to plead particulars of defamation — what publications were at issue, what words they complained of and what meanings they ascribed to those words that make them defamatory — to argue that our clients could not meet their burden on an anti-SLAPP motion,” he said. “This type of argument runs contrary to the purpose of s.137.1 to dismiss claims relating to expressions in the public interest at an early stage and sought to increase the burden applicable to moving parties on these motions. We are pleased that the court rejected that approach.”
Howard Winkler of Winkler Law said the decision in the case was entirely predictable.
Howard Winkler, Winkler Law
The most basic tenet of the law of defamation is that the plaintiff must be singled out by the alleged defamatory expression, said Winkler.
“In this case, it appears that even this most basic requirement was not satisfied,” he said. “Obviously the risk of full indemnity costs did not deter the plaintiffs from bringing this action. In my view, they are lucky that damages were not imposed.”
Earlier this year, Federal Court Justice Richard Mosley held that the government acted “unreasonably and illegally” by declaring a public order emergency — a finding that differed from the conclusions of a public inquiry, which said the federal government’s actions met “the very high threshold required for the invocation” of the Emergencies Act.
Counsel for the plaintiffs did not respond to a request for comment.
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