Amendments to the Courts of Justice Act in 2015 introduced Section 137.1, under which a defendant to a defamation action may move to have the action dismissed on the basis that it limits their expression on a matter of public interest. The section is intended to encourage public participation in debates on matters of public interest and discourage the use of litigation as a means of limiting expression on matters of public interest.
Under s. 137.1, a court shall dismiss an action if the court is satisfied that:
- the lawsuit arises from an expression that relates to a matter of public interest;
- the lawsuit does not have substantial merit;
- the defendant has a valid defence to the defamation claim; and
- the public interest in protecting that expression outweighs the harm suffered by the plaintiff as a result of the expression.
The Ontario Court of Appeal recently considered the meaning of “a matter of public interest” in its decision of Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981. The dispute centred around a negative Facebook post by the defendant detailing their poor customer service experience at a major retail store. The retailer sued the customer in defamation, who brought a motion under s.137.1 to have the lawsuit dismissed.
At the hearing of the motion, the judge found that the post was intended to caution potential customers about the treatment they may receive at the store, making it an “expression relating to a matter of public interest” for the purposes of s. 137.1.
The retailer appealed this decision. It argued that the post related to a private dispute between the customer and retailer and was not a matter of public interest. However, the Court of Appeal found no basis on which to interfere with the motion judge’s conclusion and dismissed the appeal.
Another recent Court of Appeal decision underscores the role s. 137.1 can play in protecting customer reviews. In New Dermamed Inc. v. Sulaiman, 2019 ONCA 141, the Court held that even reviews which cause a plaintiff to lose business will be protected by s. 137.1 if the harm suffered by the business is outweighed by public’s interest in protecting free expression. On this principle, a defendant who alleged that her skincare treatments caused unwanted side effects was successful in dismissing a lawsuit under s. 137.1, despite evidence that the review had caused the business to lose customers. These decisions do not mean that businesses have no recourse against defamatory reviews: Section 137.1 does not protect defendants who make expressions about matters of public interest that are malicious, untrue and otherwise indefensible if the harm outweighs the public interest in protecting the expression. However, in light of these decisions, businesses considering defamation actions against unhappy customers should be prepared to face a motion for dismissal before their action ever reaches trial. Overcoming this hurdle will require proof of serious losses that justify limiting the public interest in protecting the expression.