Ontario Superior Court Awards “special enhanced costs” for SLAPP Litigation
The Ontario Superior Court has ruled that commencing defamation litigation for the purpose of silencing a critic or stifling public discussion can trigger elevated cost consequences.
SLAPP stands for “Strategic Litigation Against Public Participation”. A lawsuit is considered SLAPP litigation if its primary purpose is to stifle criticism of a matter of public interest. The theory behind sanctioning SLAPP litigation is that it will force outspoken critics to divert their attention from their public activities to expend resources on a legal defence. SLAPP lawsuits can also have the potential of creating a “litigation chill” which serve as an implicit warning to others against engaging in public criticism.
In a recent decision, Morris v. Johnson, 2012 ONSC 5824 (CanLII), Master Thomas Hawkins of the Ontario Superior Court adopted the principle that a plaintiff who has commenced SLAPP litigation will be liable for an elevated costs award at its conclusion.
Phyllis Morris, the Mayor of Aurora, Ontario, launched a $6,000,000 defamation lawsuit against some of her outspoken critics, including Richard Johnson and William Hogg. Mayor Morris severed as mayor from 2006 until December 1, 2010. In 2010, she was running for her second term, with election day approaching on October 25, 2010.
In August, 2010, Johnson wrote and posted on the Aurora Citizen newspaper website an article which was critical of Mayor Morris and which prompted others to post over 50 comments about Johnson’s article on the website. Many of the comments were critical of the mayor and posted anonymously or under pseudonyms.
On September 15, 2010 Aurora’s town council passed a resolution to retain legal counsel to take any and all actions to bring resolution to the matter of defamation of Mayor Morris. Essentially, Council authorized Mayor Morris to commence an action for defamation with the Town of Aurora paying her legal fees.
On October 8, 2010 Mayor Morris commenced a lawsuit for defamation, seeking $6,000,000 in damages, against Johnson, Hogg, and five others.
Normally, a lawsuit is commenced by issuing and serving a Statement of Claim. Sometimes a shorter, less descriptive Notice of Action is drafted first and issued by the court. Notices of Action are normally prepared when there is not enough time to prepare a Statement of Claim and meet a filing deadline, such as a limitation period. Under the Rules of Civil Procedure, a Notice of Action cannot be served on its own. It must be served with a Statement of Claim.
In this action, Mayor Morris issued and served a Notice of Action with no Statement of Claim – contrary to the Rules of Civil Procedure - three weeks before the election. Mayor Morris ended up losing the election in 2010 and discontinued the action in October 2011. As a result of the discontinuance, the defendants were entitled to bring a motion seeking their costs of the litigation. They sought additional costs on the basis that Mayor Morris’ action was SLAPP litigation.
Court concludes that this is SLAPP Litigation
Master Hawkins ruled that this case was SLAPP litigation. He took the following evidence into account:
- Mayor Morris brought this action expressly in her capacity as Mayor of the Corporation of the Town of Aurora and until December 14, 2010 she had access to Aurora municipal money to fund this litigation.
- The action was commenced without any prior demand letter to the defendants from Mayor Morris or her lawyers.
- The action was commenced without complying with the prior notice provisions of the Libel and Slander Act, R.S.O. 1990 ch. L-12 respecting broadcasts.
- The action was commenced less than three weeks prior to the municipal election in which Mayor Morris was seeking a second term as mayor.
- The action was commenced by notice of action rather than by statement of claim.
- In her Notice of Action Mayor Morris expressly sought monetary damages, which Master Hawkins found unusual.
- The notice of action was served on the defendants immediately and without any statement of claim, in contravention of subrule 14.03 (4) of the Rules of Civil Procedure.
Based on this evidence, Master Hawkins held:
“I infer from these facts that Mayor Morris was not prepared to wait and see if a demand letter would have the desired effect of silencing Johnson, Hogg and Bishenden, and not prepared to wait until her lawyers prepared a statement of claim. In my view, Mayor Morris wanted to hit Johnson, Hogg and Bishenden quickly and hard, in order to silence them as her critics sooner rather than later in the weeks leading up to the October 25, 2010 municipal elections.
I have therefore come to the conclusion that this action is indeed SLAPP litigation.”
SLAPP Litigation Triggers Special Enhanced Costs
In view of his conclusion that this action was SLAPP litigation, Master Hawkins applied the principle that a higher costs award was warranted, incorporating a 2011 decision of the British Columbia Supreme Court. He wrote:
“Because I regard this action as SLAPP litigation designed to stifle debate about Mayor Morris’ fitness for office, commenced during her re-election campaign, I award Johnson and Hogg special enhanced costs as was done in Scory v. Krannitz,2011 BCSC 1344 (CanLII), 2011 BCSC 1344 per Bruce J. at para. 31 (B.C.S.C.).”
As a result, Master Hawkins awarded the defendants more than $21,000 in costs.
Legislative Response to SLAPP Litigation?
The issue of SLAPP Litigation continues to be considered by Ontario’s lawmakers. Indeed, the Attorney General of Ontario struck an “Anti-SLAPP Advisory Panel” which produced a report on October 28, 2010. The panel, after hearing public submissions, concluded that anti-SLAPP legislation should be enacted to protect public participation in the public sphere. The report can be found on the Attorney General’s website or by clicking here.
Anti-SLAPP legislation was recently introduced in the Ontario Legislature by way of a Private Member’s Bill. Bill 132, the Protection of Public Participation Act, 2012 passed first reading on October 15, 2012. If passed, the Bill would provide a framework for the early dismissal of SLAPP lawsuits by the court. However, the Bill’s status is now uncertain as a result of the recent decision to prorogue the Legislature. The text of the Bill can be found on the Ontario Legislature website or by clicking here.