2018 August 30

Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, dismissing an appeal from 2017 ONSC 167

The Ontario Court of Appeal upheld the lower court decision dismissing as a SLAPP pursuant to s. 137.1  of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43.  The claims concerned comments made by the defendant on Twitter.  The lower court correctly determined that the tweets related to a matter of “public interest”.  Although the lower court’s analysis of the balancing test under s. 137.1(4)(b) was deficient, the lower court had correctly focused on the evidence of damages when assessing the harm that the plaintiff corporation had suffered or was likely to suffer as a result of the tweets.  Nothing in the record before the lower court judge would support anything more than nominal general damages.   The impugned tweets were “[i]n keeping with the medium and the intended audience, … conclusory and, in some respects, sarcastic.” There was “no basis, however, to conclude that they are deliberately false or intended to mislead.”  In the circumstances, the plaintiff failed to show that the harm caused or likely to be caused to it by the impugned tweets was “sufficiently serious” to outweigh the public interest in protecting the defendant’s right to freedom of expression.