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July 2018

Strategic Lawsuits Against Public Participation - A "Win" for Freedom of Expression

Featured Case Study: Lascaris v B'nai Brith, 2018 ONSC 3068

David Elmaleh
David Elmaleh
Partner

Aryeh Samuel
Aryeh Samuel,
Associate Lawyer

Carly Jacuk
Carly Jacuk,
Law Student

By Carly Jacuk

In seeking an order to dismiss the plaintiff's action pursuant to s. 137.1(3) of the Courts of Justice Act, McCague Borlack LLP litigators David Elmaleh and Aryeh Samuel successfully used the new Anti-Strategic Lawsuit Public Participation (Anti-SLAPP) legislation to have the case dismissed for their client B'nai Brith Canada.

In Lascaris v B'nai Brith, the plaintiff, a former securities class action lawyer and former Justice Critic of the Green Party of Canada, sued the defendant B'nai Brith Canada for libel after the organization published an article and a Tweet on political issues in the Middle East. The publications suggested that Lascaris used social media to advocate on behalf of terrorists.

In particular, Lascaris objected to a particular passage of the article, which stated that “Dimitri Lascaris, official Justice Critic of the Green Party of Canada, has used social media to advocate on behalf of terrorists who have murdered Israeli citizens (the Alayan family), a B'nai Brith Canada investigation has revealed”. He claimed that the publication damaged his reputation.

Justice Rady presided over the motion and confirmed that the anti-SLAPP legislation's purpose is to suppress “cases... brought to punish defendants for speaking out, [that] give credit to threats of litigation against other critics, deplete financial resources and, more broadly, silence public debate on matters of public interest”.

Under s. 137.1 of the CJA, the moving party must first prove that the expression it made relates to a matter of public interest. The onus then shifts to the respondent to show that grounds exist to believe that (1) the lawsuit has substantial merit, and (2) the moving party has no valid defence. The Court may also assess whether the harm caused by the publication outweighs the public interest in protecting the expression, which the Respondent must prove.

B'nai Brith stood strongly behind the publication, defending it on the basis that the robust defences of justification, qualified privilege and fair comment applied.

The high-stakes motion was heard over the course of two days.

In dismissing the claim, Justice Rady found that there was no doubt that the article's subject matter invites public attention, affects the welfare of citizens and attracts considerable controversy, making it a matter of public interest:

[39] There can be no doubt that the subject matter of the article is one that invites public attention; affects the welfare of citizens; and attracts considerable controversy, which are all outlined in the definition of public interest in Grant, supra. Canadians have a public interest in receiving information on the conflict in the Middle East and on individuals involved with government parties and their stance on the issue. The ongoing debate regarding the conflict between Israel and Palestine and Canada's involvement attracts significant public attention and controversy. Additionally, as the evidence on the motion demonstrates and similar to the circumstances of Dr. Baglow in Baglow, supra, the plaintiff himself publishes in this particular area, which clearly shows the public interest in the subject matter.

The Court stated that B'nai Brith's statements in the article were based on factual underlying events...

Justice Rady went on to find that the plaintiff failed to show that B'nai Brith had no valid defence. Specifically, Lascaris was unable to prove that the defence of fair comment could not succeed. As a result, the Court did not consider the defenses of justification or qualified privilege. The Court stated that B'nai Brith's statements in the article were based on factual underlying events, and that a person could honestly believe that support for the Alayan family constitutes support for terrorists.

...the test is whether a person could honestly believe that support for the Alayan family constitutes support for terrorists. The answer is yes. A person who knows that Bahaa Alayan was allegedly involved in a terrorist attack could believe that Mr. Lascaris supported terrorists as a result of his meeting with Mr. Muhammad Alayan and his posts online about the Alayan family. It may not be a reasonable belief, but it is possible for someone to honestly hold this belief.

The Court went on to find that there was no evidence that B'nai Brith was acting other than in the pursuit of its genuinely held beliefs. There was no evidence that B'nai Brith or its CEO acted with malice when publishing the subject article.

As a result, the Court found that B'nai Brith's motion to dismiss Lascaris' libel action under s.137.1 of the CJA was granted, and the Plaintiff's libel claim was dismissed.

This case represents a significant victory for free speech advocates, and the result reached by the Court embodies the purpose of the anti-SLAPP legislation itself and Canadian democratic ideals. All members of society - whether individuals, advocacy and human rights organizations or businesses - ought to be able to comment and criticize public figures on matters of public interest without the threat of litigation, or it could undermine our democracy and bankrupt those who are brave enough to offer the criticism in the first place.


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