Case reference: Bondfield Construction Company Ltd. v. Globe and Mail Inc. 2019 ONCA 166
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
The defendants published a series of newspaper articles about the plaintiff’s successful bid on a $300 million contract to build a new critical care centre at a Toronto hospital. The plaintiff sued the defendants for damages for defamation, claiming that they falsely alleged that the plaintiff obtained the contract corruptly. The defendants pleaded the defences of fair comment and responsible communication. The defendant moved under s. 137.1 of the Courts of Justice Act (“CJA”) to dismiss the action on the basis that it was brought to silence them on matters of significant public importance. The motion was granted. The plaintiff appealed.
Held, the appeal should be allowed.
The motion judge erred in placing the onus on the plaintiff under s. 137.1(4)(a)(ii) of the CJA to show that the defendants had “no valid defence whatsoever”. The onus on the plaintiff was significantly less onerous. The plaintiff was required to show that a reasonable trier could conclude that the defendants did not have a valid defence. The plaintiff could meet that onus if it showed that a reasonable trier could reject all of the various defences put in play by the defendants. The plaintiff had met its onus to show that a reasonable trier could reject the defendants’ defences of fair comment and responsible communication.
The public interest balancing under s. 137.1(4)(b) of the CJA favoured the plaintiff. There was no history of the plaintiff using litigation or the threat of litigation to silence critics, no financial or other power imbalance that favoured the plaintiff over the defendants, and no suggestion of any punitive or retributory purpose motivating the lawsuit. The plaintiff had produced evidence that it had lost contracts, potential construction partners and potential funding from lenders as a result of the impugned articles. There was also nothing in the record that could reasonably suggest that the defendants were motivated by anything other than a desire to inform the public about the facts that their investigation had revealed.
There were powerful arguments to be made on both sides of the public interest balancing required in s. 137.1(4)(b). In the end, this was a case in which the plaintiff had a legitimate argument that it had been defamed and had suffered significant damages as a result of the articles. The defendants had legitimate arguments, both that the content was not defamatory and that it had defences to any parts that were defamatory. The action involved a genuine controversy and should be tried on its merits.
*source: Ontario Reports
