SLAPP Happy

I first got hooked on the WE Charity issue when, after Jesse Brown posted his first major attack on the charity in early 2019, a friend posted on Twitter that the piece on Canadaland was a “nothingburger” smothered in Jesse Brown hype sauce.

I had been unimpressed with Brown since I met him at an event at the Toronto Reference Library in the winter of 2015 (I was on a panel on free expression), when he dumped his coat on my wife, who was on crutches, but I let it slide. I knew he did shallow political commentary and exposed some real issues in the Toronto media, but I was a law student and he was just another rich blowhard who’d bought himself a platform.

But when I get attached to a story, I don’t let go. This served me well in my journalism career and my work as an author. I think my law clients appreciate it, too.

So I am following all the litigation over what I’ve seen as shabby journalism targeting WE. I’ve written about the ongoing case between WE and the CBC’s Fifth Estate program(including its producer, Harvey Cashore, and host Mark Kelley, in Washington, D.C..  If that case goes to trial, I’ll be there.) and Theresa Kielburger’s lawsuit against Brown for insinuating she diverted Free the Children money for her own use.

These are important lawsuits that, I hope, will end with the exoneration of WE in the United States and the clearing of Mrs. Kielburger’s reputation in Canada.

I’ve read the Statement of Claim from Theresa Kielburger and the Statements of Defence of Jesse Brown/Canadaland and Isabel Vincent. Both parties have good lawyers and the pleadings are elegantly-written.

Vincent’s pleadings mostly argue facts and challenge WE’s interpretation of what she said on the White Saviors podcast. Brown’s Statement of Defence is basically an anti-SLAPP motion, arguing Canadaland has the defence of truth, fair comment and responsible communication, and claiming WE, through Mrs. Kielburger, is attacking Brown’s free expression rights.

It’s clear that his lawyers plan to file a motion under Sec. 137.1 of the Courts of Justice Act to have the case thrown out.

In a motion hearing, Mrs. Kielburger has to show to a judge that the words in the White Savior podcast were defamatory, that the ones she complains of were about really about her, and that the podcast was published (or broadcast, or whatever happens when something goes on the Internet).  The onus then shifts to Canadaland to show Brown and company have a defence. It means the facts alleged about Mrs. Kielburger in the White Saviors podcast will be challenged by her lawyers. That’s going to be a long and expensive deep-dive, partly done in the massive affidavits that will be drafted by Brown and Canadaland’s lawyers, partly argued in the motion hearing, which can end up being a trial of its own.

Then, if Canadaland can’t show a prima facie defence, the onus shifts back to Mrs. Kielburger and her counsel to show that the defamation cased her substantial harm. This is a quicksand, one that the courts need to fix. How do you show damage? Lost revenue? If so, that means the poor and the elderly can’t sue, even though their reputations mean a lot to them. I’ve seen the “pure economic loss” concept creeping into SLAPP decisions, and it makes a mockery of the seminal 199 Supreme Court of Canada case of Hill v Church of Scientology,  where a Toronto Crown Attorney got damages of $1.6 million and costs for defamation not long before he was elevated to the bench.

The harm to the plaintiff is weighed against the impact on freedom of expression of the defendant and the public at large. This second part is also nebulous and speculative.

I’ve done three of these SLAPP hearings. I won one, lost one, and had one settle before the hearing. I’ve also helped several lawyers who were working on their own cases, have one on the go (representing the plaintiff in the original lawsuit) and am consulting on one that looks like it will go to the Ontario Court of Appeal.

At best, they’re tough. The decisions on these have been, to be kind, inconsistent. Some judges focused on the speech rights of the lawsuit defendants. Other judges did a deep dive on the credibility of the parties.

Inconsistency of decisions is half the problem. The insane cost is the second half.

Judging from the wording of the original Ontario legislation, a SLAPP motion was supposed to be simple and fast. It was meant to fix the broken “abuse of process” remedy for worthless lawsuits and protect the rights of people who spoke out, with at least a minimal level of responsibility, on matters of public interest. At the time it was passed, I hoped it would protect journalists in small media outlets who have often been targeted and lost their jobs because people with some wealth and power filed worthless lawsuits against them.

But the law has turned into a Frankenstein’s monster, and, once we have a real government in Ontario, it should get a re-think.

Here’s how it was supposed to work:  Someone, usually an environmentalist or reporter on a weekly paper is menaced with a lawsuit by some outfit they criticized. The outfit, say, some waterpark with a long history of this stuff, files a Statement of Claim with no obvious merit just to shut the critic up. A judge is to quickly look at the merits and intentions of the lawsuit and throw the frivolous, bullying case out, giving full costs to the person whose expression rights were threatened.

Then the lawyers got ahold of the process

Instead of a quick hearing using obvious facts and patterns of behavior, the SLAPP process became a nightmare of frustratingly complex court process and a deep well of legal billings, with full indemnity costs a the defendant winner effectively capped at $50,000 even though billings have sometimes gone north of $200,000.

And the courts have started giving costs to the defamation plaintiffs when the defendants lose SLAPP motions. The law says that’s not supposed to happen, but it left a crack open for judges to identify special cases. I expect those special cases will become normal over time, since the law’s cost regime is so brutally unfair to successful plaintiffs.

The SLAPP motions were expected to be finished within sixty days. That’s a sick joke. I am working on one where the pleadings ae a year old and the notice of motion for the Sec. 137.1 process was filed in June. We’ve already had one hearing to set a timetable. We expect massive affidavits from the defendants to be filed in the early fall. Then we will file our affidavits. After that, there are days of cross-examination on the affidavits. If there are no side motions, the SLAPP motion will be heard over two or three days in February, 2024. And there’s a pretty good chance of an appeal.

Keep this in mind: If Brown does a SLAPP motion and loses, the litigation clock starts again as though pleadings just closed. A litigation timetable. Affidavits of documents and disclosure of them. Oral discovery. Motions, since there’s just no way the parties will be happy with the disclosure. Then a pre-trial conference, a trail, and almost certainly an appeal.

I feel sorry for all the parties in this, and in any other defamation case. The system is broken. Access to justice is a bad joke. Jesse Brown and his insurers, and WE and their supporters, might have the means to go the distance, but the rest of us don’t.

I tell clients two things: litigation (including SLAPP motions) is a gun that is pointed both at the heads of the plaintiff/applicant and the defendant/respondent. ADR – mediation or arbitration – is the best way to deal with legal disputes. (This includes accused/victim ADR in some criminal cases, but that’s a post for a later day.

If I was paying for litigation, on either side, I would do everything I could to avoid the SLAPP regime unless it was a slam-dunk, like a case I had where the defendants were served at Christmas and the plaintiffs were just pissed about losing an election.

But, hey, people can spend their money any way they want. Lawyers won’t complain.

Journalists who want a deeper dive, and, perhaps, a more user-friendly explanation of this law and process should buy my new book, Fundamental Law For Journalists, available from my publisher, Irwin Law.