November 8, 2016
Able Translations Ltd v Express International Translations Inc 2016 ONSC 6785
The defendant moved to strike the plaintiff’s defamation suit against them with costs pursuant to s. 137.1 of the CJA.
Under s. 137.1 the defendant bears the burden of establishing that the suit arises “from an expression made [by the defendants] that relates to a matter of public interest”. If successful in establishing this, the onus shifts to the plaintiff to satisfy the court: (a) that there are grounds to believe both that the proceeding has “substantial merit” and that the defendants have “no valid defence”; and (b) that the harm suffered or likely to be suffered by the plaintiff is “sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”.
The claim arose from a blog posting made by the defendant on August 31, 2015 during the course of the 2015 Federal election. The plaintiff reacted swiftly with a lawyer’s letter demanding immediate retraction and threatening a law suit. The blog was deleted from the site where it had been posted within a few days.
After a careful analysis of the factors that must be considered under s. 137.1 of the CJA, Dunphy J. concluded: “that the subject matter of the blog posting was an expression relating to a matter of public interest within the meaning of s. 137.1(3) of the CJA. Accordingly, subject to s. 137.1(4) of the CJA, I am required to dismiss this claim.”
Dunphy J., goes on to say:
While I have some sympathy for the plaintiff’s position as being the first — or at least among the first — to be subjected to the new regime mandated by the PPPA, that consideration must be mitigated by a consideration of the fact that the effective date of the new legislation was known and the legislation itself received broad public input (including from the bar). I must also consider that the plaintiff’s aggressive actions in this case have generated the very sort of libel chill that the PPPA was designed to combat. The fact that the plaintiff appears to have singled out a small competitor’s comments for litigation while taking no steps (at least none disclosed in evidence) to deal with the far more numerous and extreme expressions of opinion by others has led me to draw an adverse inference regarding the purity of the plaintiff’s motives in this case…I therefore decline to exercise my discretion to excuse this plaintiff from the operation of s. 131.1(7) of the CJA. The moving party defendants are entitled to their costs of the action and motion assessed on a full indemnity basis.