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The Ontario Court of Appeal has recently dismissed an anti-SLAPP motion in an employment related dispute. You might be wondering, “What is an anti-SLAPP motion?” In this article we explain SLAPP and anti-SLAPP and then discuss the recent case.
What is a SLAPP?
SLAPP stands for Strategic Lawsuits Against Public Participation. They are lawsuits typically but not exclusively in defamation, against a person or persons whose public commentary is unwelcome. Basically, it is a legal way to silence protest or expression. SLAPP claims have been called “gag proceedings.”
What is an Anti-SLAPP Motion?
Anti-SLAPP motions are motions brought to challenge a lawsuit on the basis that it is a SLAPP. Section 137.1 in the Ontario Courts of Justice Act (“CJA”) allows for a SLAPP to be defeated on a summary basis.
To put it colloquially, if a SLAPP is a gag proceeding, then anti-SLAPP is fighting back against the potential infringement of free speech for the public interest. As stated in the CJA, a purpose of anti-SLAPP legislation is to make sure that the public can express themselves on public interest grounds without worrying about being sued.
An anti-SLAPP motion also works as a pause in the alleged SLAPP proceedings, since nothing else happens until a decision on the motion has been made.
To be successful on an anti-SLAPP motion, the person or persons being sued (the defendants) bring the anti-SLAPP motion. They must demonstrate that the proceedings came about because of expression made by them that relates to a public interest matter. Once that is established, the onus is then on the plaintiff to prove that:
(a) there are grounds to believe that
(i) the proceeding has substantial merit and
(ii) the defendant has no valid defence in the proceedings; and
(b) the harm likely to be or have been suffered as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
The leading case on SLAPP/anti-SLAPP is 1704604 Ontario Ltd. v. Pointes Protection Assn., 2018 ONCA 685 which was recently affirmed at the Supreme Court of Canada 2020 SCC 22.
2110120 Ontario Inc. o/a Cargo County Group v. Buttar
a) Facts
In this case, a group of former truck drivers who worked for the company, initiated a campaign to recover alleged unpaid wages. Legal proceedings under the Canada Labour Code (“CLC”) in which the truck drivers claimed that they were entitled to be paid as employees, and not as independent contractors, were underway but had not been concluded. The truck drivers were supported in their campaign by the Naujawan Support Network (“NSN”), and the Workers’ Action Centre (“WAC”) who organized rallies at the business premises of the company and outside the residence of its principals. The truck drivers asserted verbally and in signs and flyers distributed at the rallies that Randeep Sandhu was a “wage thief” and they made other allegedly harassing and defamatory statements. The same statements were posted on social media, together with Randeep Sandhu’s home address. The appellants and others disrupted the Company’s business with a “phone zap” that lasted several days and posted negative reviews of the business online. While all this was happening, there were actually no monies owed to the appellants since the CLC decisions were still pending.
The Company and the individuals who were targeted in the truck drivers’ campaign initiated a lawsuit seeking injunctive relief and damages for various alleged wrongs, including defamation, trespass, invasion of privacy, and intentional infliction of emotional distress. This lawsuit is referred to as the “Action.” The truck drivers moved under s. 137.1 of the CJA (the anti-SLAPP provisions) to dismiss the Action.
b) The Motion Judge Decision
The truck drivers were unsuccessful on the motion. The motion judge had to consider whether the “expression” of the truck drivers that the company was seeking to curtail met the test of express that “relates to a public interest matter”. The motion judge found that it did not:
So, what are the expressions “wage thief” or “wage theft” or “pay your employees now” or “stolen” about in the circumstances of this case?
…
The primary thrust of the expressions and actions was two-fold:
a) To circumvent the ongoing legal process by threats of public exposure, and
b) When the threats failed to achieve their desired results, to publicly make false, misleading, defamatory expressions and take improper actions designed to force Cargo County to capitulate by paying the alleged claims of the Moving Defendants.
The motion judge differentiated this case from other successful anti-SLAPP motions because the respondents were not attempting to exploit the appellants. Rather they were following the proper CLC process. The judge concluded that the “expression” was directed to a private dispute, not to a matter of public interest.
Although not common, the motion judge awarded costs to the responding party against the workers.
c) The Court of Appeal Decision
On appeal the Court reached a different conclusion on the question of whether the expression was a matter of public interest. The Court found that the expression about the “potential exploitation of vulnerable workers” which is a public interest.
Turning to the second part of an anti-SLAPP analysis the burden then shifts to the company and the individuals who were the targets of the “expression” to show reasonable grounds to believe that their Action had substantial merit, that there is no valid defence offered by the truck drivers and the harm the company and individuals are likely to experience outweighs the public intertest to protect expression. Justice van Rensburg found that the respondents had met this burden.
i. Substantial merit
The appellants agreed that they organized and displayed signs with the impugned wording. The statements of “wage thief” and “thief alert” suggest criminal conduct and suggest that the respondents are not paying their workers. Thus, the requirements for a defamation claim were met.
ii. No valid defence
Here since the statements “wage theft” and the like, were, on the facts, untrue. Therefore, the Court found that there was no defence of justification available to the truck drivers.
Further, the truck drivers argued that there was no malice. However, Justice van Rensburg found that there was in fact malice since the ulterior motive was to intimidate the employer into paying the CLC monies prematurely.
… there is sufficient evidence that could support a finding of malice based on the inflammatory tone and invocation of criminality present in the impugned remarks, the evidence of an ulterior motive to embarrass, shame and intimidate the respondents into paying the appellants’ claims, and a recklessness or indifference to the truth of what was stated.
Accordingly, there is reason to believe that the defences of fair comment and responsible communication on a matter of public interest will not succeed.
iii. Harm vs expression
The harm can be monetary or non-monetary, such as damage to reputation. The actions of the truck drivers, like the phone zaps and 1-star reviews, were devised to harm the company. The public interest in question is the “potential exploitation of vulnerable workers.” However, by utilizing personal attacks and alleging criminality to achieve their goals, the Court found that public interest is lowered in the balancing. Overall, the court found that the harm outweighed the public interest of expression.
In weighing the public interest considerations, I am mindful of the real and threatened harm to the reputations of Cargo County and its principals, and the appellants’ unnecessarily disparaging and personal attacks against them. While there is value in workers protesting about unfair working conditions, I see no chilling effect on future expressions about such matters if the Action proceeds. As the Supreme Court in Pointes Protection stated, the anti-SLAPP provision ensures “that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim”: at para. 48. Allowing the Action to proceed would not in my view deter others from speaking out against unfair labour practices; rather it would permit the respondents to seek redress for the harm alleged to have resulted from the manner and approach the appellants employed in this particular case.
The awarding of costs to the respondents was upheld.
Conclusion
This case is unusual as one would expect the Courts to protect the interests of vulnerable workers to express themselves publicly over the rights of a company or an employer. In this case, the actions of the truck drivers were outrageous. Particularly where their dispute with the company was in the process of being decided. There was no basis for the truckers to make the public statements that they did, or to employ the reputation damaging tactics of negative reviews and phone zaps. Companies who find themselves on the receiving end of unwanted public commentary about their labour practices can look to the Cargo County case in determining whether to take legal action in response.