2017 October 18

Levant v. Day, 2017 ONSC 5956

The Ontario Superior Court of Justice rejected a motion by the defendant seeking an order dismissing a defamation action on the basis of s. 137.1 of the Ontario Courts of Justice Act (Anti-SLAPP provisions).  The action concerned a number of tweets published in May, 2016.  The Court concluded that the majority were “thinly veiled attacks” on the plaintiff, not comments on matters of public interest, and that there were grounds to believe the defamation claim has substantial merit.  There were reasonable grounds to believe that no defence of fair comment was made out.  As regards the defence of failure to give libel notice pursuant to section 5(1) of the Ontario Libel and Slander Act, the Court held that there was no case law interpreting this provision to include social media.  “…[T]he parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter…I am therefore of the view that the Act, as presently worded, does not apply to Twitter posts.”  In the circumstances, the Court found there were grounds to believe that the defendant had advanced no valid defences.  The interest in permitting the proceeding to continue to trial outweighed the public interest in protecting the impugned expression contained in the tweets.