2019 February 25

New Dermamed Inc. v. Sulaiman,  2019 ONCA 141, dismissing an appeal from 2018 ONSC 2517

The Ontario Court of Appeal affirmed a lower court ruling order dismissing this defamation action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, despite an erroneous interpretation of the statute.   The claim related to Google reviews written by the defendant.   The lower court mistakenly required the plaintiff to show the pleaded defence of fair comment could not succeed, whereas the correct test required the plaintiff to “convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed.  If that assessment is among those reasonably available on the record, the plaintiff has met its onus.”  “Put another way, the onus on the [plaintiff] was not show that there was no possibility that the defence of fair comment could succeed but, rather, just that it was reasonably possible that a trier could conclude that the defence would not succeed.”  Nevertheless, the Court of Appeal held the defamation claims should be dismissed because the plaintiff failed to satisfy the “balancing exercise” under s. 137.1(4)(b).  “While the [plaintiff] has filed evidence of some lost business as a result of the reviews that the [defendant] posted, it has not provided any quantification of those losses nor identified how those losses relate to its overall business.  The [plaintiff] has not … established that any harm that it has suffered at the hands of the respondent is ‘sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression’”