The intersection of freedom of speech and protection of one’s reputation from defamation has, and almost always will be, a complex problem to solve in any democratic jurisdiction. On the one hand, it is a vital component of a free and just democratic society that we allow (truthful) speech, even if the truth harms another; yet, at the same time, we must prevent false speech (sometimes masquerading as the truth) from inflicting harm on others – that is the basic foundation of modern defamation law: truthful speech is allowed, false speech is not (with certain ‘grey areas’ where things get really interesting).
One of the more complicated problems that have arisen over time is the (mis)use of defamation claims by (usually rich and powerful) plaintiffs to silence legitimate critics by bringing a claim specifically designed to coerce self-censorship, or even just threatening to do so. Of course, victims of defamation should be allowed to claim for damages in a Court of Law; but, when such a claim’s very purpose is to prevent the truth from coming out, the law meant to shield us from harmful untruths will have been perverted into a weapon to silence criticism. Colloquially, such lawsuits have been referred to as ‘strategic lawsuits against public participation’, or ‘SLAPPs’.
It was for this reason that, in 2015, Ontario introduced Anti-SLAPP legislation (formally the Protection of Public Participation Act[1]), or PPPA, that requires a motion to dismiss defamation claims (on the basis that the impugned speech is of public interest) thereunder be heard no later 60 days from the date the Notice of Motion is filed. Since its inception, as with any new legislation, the Courts have at times struggled to come up with a uniform interpretation. That is, until the Honourable Justice Dunphy’s late 2016 Endorsement in Able Translations Ltd. v Express International Translations Inc. [2] wherein the Ontario Superior Court of Justice clarified the three-part test:
1. The plaintiff must show that “there is credible and compelling evidence supporting the claim as being a serious one with a reasonable likelihood of success.”;
2. The plaintiff must demonstrate to the Court that “there is a reasonable probability that none of the defences [proffered by the Defendant(s)] would succeed…[at] Trial.”; and,
3. The plaintiff must produce credible and compelling evidence of harm that appears reasonably likely to be proven at trial.
Since the release of the aforementioned Endorsement, the three-part test as laid out by the Honourable Justice Dunphy in Able v Express has begun to emerge as the uniformly accepted interpretation of the requirements under PPPA.