Case: Dent-X Canada v. Houde, 2022 ONCA 414 (CanLII)
Keywords: face masks; anti-SLAPP; Facebook post
The Appellants order face masks from the Respondent, Dent-X Canada. Unhappy with delays in the delivery of the face masks, one of the Appellants creates a Facebook post reproduced by the Court of Appeal in their judgment.
The Respondent sues the Appellants in defamation. The Appellants then bring a motion to dismiss the action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which is Ontario’s “anti-SLAPP” provision. The Motion Judge dismisses the motion, finding the Appellants’ statements are not related to a matter of public interest. The Court of Appeal agrees.
The decision of the Court of Appeal is important because it provides guidance on what is or is not a matter of “public interest”. This is significant because whether a court will dismiss a defamation action pursuant to s. 137.1 of the Courts of Justice Act depends on whether the expression in question constitutes a matter of “public interest”. These provisions are meant to protect speech which would otherwise be silenced by a strategic lawsuit.
The Appellants’ position was that the Facebook post was “in part at least, for the purpose of commencing a potential class action” and that, where a post refers to a class action, it is dealing with subject matter which is inherently related to a matter of public interest. (See para. 8; Das v. George Weston Limited, 2017 ONSC 5583, at para. 128; 2018 ONCA 1053, leave to appeal dismissed,  S.C.C.A. No. 69).
The Court of Appeal affirmed that the correct analysis on whether a statement relates to a matter of public interest is found in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at paras. 20, 26-31, and Grant v. Torstar Corp., 2009 SCC 61,  at paras. 99-109. For the Court of Appeal, there is a meaningful distinction between a Facebook post (or any expression which is the subject of an anti-SLAPP motion) which relates to a matter of public interest and one which merely refers to a matter of public interest:
Pointes holds that the concept of whether particular expression relates to a matter of public interest must be broadly interpreted, and assessed by looking at the expression as a whole. However, Pointes also makes clear that merely referring to something of public interest is not the same as relating to a matter of public interest: Pointes at para. 29; see also Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 19, 26-35. (See para. 10).
The Court of Appeal noted that the Appellants did not commence a class action against the Respondents, and so, as stated by the Motion Judge, the underlying dispute was “purely a private one”. (See paras. 8-9). Ultimately, the Court of Appeal found no basis to interfere with the Motion Judge’s conclusion that the Facebook post did not relate to a matter of public interest, and so did not pass the threshold test in s. 137.1(3) of the Courts of Justice Act. (See para. 14).
Counsel for the Appellants: François Sauvageau (Sauvageau & Associates, Richmond Hill)
Counsel for the Respondent: Solomon Fischhoff (SRF Legal, North York)