Protecting Your Good Name

March 16, 2021

By Brian Babcock

Who steals my purse steals trash. ‘Tis something, nothing:

‘Twas mine, ’tis his, and has been slave to thousands.

But he that filches from me my good name

Robs me of that which not enriches him

And makes me poor indeed.

(Othello Act 3 Scene 3)

Shakespeare understood the value of a good name, or reputation.

Defamation lawsuits are powerful tools to protect reputations, but unfortunately, over the decades, they have also been used as Strategic Lawsuits Against Public Participation (SLAPP). High profile figures would use the lawsuit, or the threat, to stifle public debate or criticism.

So, in 2015, Ontario, like other jurisdictions, introduced Anti-SLAPP legislation which permits early and expeditious dismissal of defamation claims about matters of public interest that lack merit. This protects free speech on matters of importance, while protecting reputations where the claim has merit.

The first stage in the process is to determine whether a case involves a matter of the public interest. The first cases have been decided at the Supreme Court of Canada, but the focus of this article is on a recent Court of Appeal decision.

Sokoloff v. Tru-Path Occupational Therapy Services Ltd.  pits a prominent law firm against a service provider with which it had a commercial dispute over the payment by the law firm of invoices from the provider to the law firm’s clients. The President of the provider is alleged to have stood outside the law firm’s offices holding signs that contained defamatory statements. The law firm sued for defamation. The defendants moved under the Anti-SLAAP provisions to have the suit struck.

The fist step in the test is to determine whether the dispute relates to a matter of “public interest”.

As the Court says, “The scope for legitimate interpretation of vaguely worded concepts such as “public interest” must be informed by the purpose of the legislation: to safeguard the fundamental value that is public participation in democracy.”

The Court of Appeal differed from the first motions judge by finding the following factors irrelevant:

  • the way the defendant chose to express themselves lacked decorum
  • the president admitted on examination under oath that he was not holding up the signs out of any concern for the public, or the regulation of lawyers or lawyers’ professional obligations
  • what the motivation for the alleged defamation was generally

In other words, no qualitative assessment of the expression by the defendant is to be made. Any expression in the public interest passes this first step of the test. It is in the second step of the test – the merits of the claim – that the nature of the remarks might be relevant. But to get there, first it must be a matter of public interest.

The court did agree with the motion judge that while the conduct of regulated professionals, including lawyers, may be a matter of public interest, the private conduct of their business is not. The task of a judge on an Anti-SLAAP motion is to determine what the expression is really about. Reference to a matter of public interest does not meet the test of being related to a matter of public interest.

This particular dispute was a contractual dispute between two sets of regulated professionals that had a strictly private character.

Therefore, the defamation claim may proceed.

Since the Anti-SLAAP law was introduced, we have found people reluctant to pursue defamation claims, fearing that they might just be struck out. This decision is a significant step forward in encouraging people to protect their reputations where appropriate, and is a reminder that the legislation, while discouraging tactical law suits, is not intended to allow your good name to be filched.

This decision also builds upon our understanding of when it might be appropriate for you to bring an Anti-SLAAP motion if you are a defendant targeted by a tactical lawsuit.