2019 March 4

Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, reversing 2018 ONSC 1880

The Ontario Court of Appeal set aside a lower court order dismissing this defamation action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43.   The lower court misinterpreted s. 137.1(4)(a)(ii) by requiring the plaintiff to “establish that the [defendant newspaper] has no valid defence whatsoever.”  On a proper interpretation of the anti-SLAPP legislation, it was sufficient for the plaintiff resisting dismissal of its defamation claims to “show that a reasonable trier could reject all of the various defences put in play by the [defendant].  A determination that a defence ‘could go either way’ in the sense that a reasonable trier could accept it or reject it is a finding that a reasonable trier could reject the defence.”

The Court of Appeal held that the claim did not have the hallmarks of a classic SLAPP.  There was no history of the plaintiff using litigation or the threat of litigation to silence critics.  There was no financial or other power imbalance that favours the plaintiff over the defendant.  There was no suggestion of any punitive or retributory purpose motivating the lawsuit.   As to harm, the plaintiff “produced evidence that it has lost contracts, potential construction partners, and potential funding from lenders as a result of the articles written in the [defendant newspaper].”  It was “enough that [the plaintiff] presented specific and credible evidence of potentially significant pecuniary damages.”  The Court of Appeal held that “this litigation smells of a genuine controversy.  It should be tried on its merits.”