Ontario court dismisses Maxime Bernier's defamation lawsuit for failing anti-SLAPP screening test

Defamatory comments were 'drop of vitriol in a sea of criticism,' said court

Ontario court dismisses Maxime Bernier's defamation lawsuit for failing anti-SLAPP screening test
Maxime Bernier, leader, People’s Party of Canada

The Ontario Superior Court has dismissed People’s Party of Canada leader, Maxime Bernier’s defamation action against lawyer, author and consultant, Warren Kinsella.

In Bernier v. Kinsella, 2021 ONSC 7451, the court found Bernier failed to overcome the statutory hurdle under Ontario’s anti-SLAPP legislation, which is necessary before a defamation action involving a matter of public interest can proceed. Section 137.1 of the Courts of Justice Act calls for the dismissal of defamation proceedings concerning matters of public interest “to avoid the weaponization of the courts against freedom of speech and public discourse.”

The defamation case stemmed from Kinsella’s statements and online posts which branded Bernier as a racist, misogynist and anti-Semite in the run up to the 2019 federal election. Bernier said Kinsella was clandestinely hired by the Conservative Party of Canada and his statements were part of a “dirty tricks campaign” that cost him the seat in Parliament that he has held for thirteen years.

While public interest defamation lawsuits should be dismissed under s.137.1, the case may still be allowed to proceed if the plaintiff can overcome a two-part test. First, the plaintiff must establish that there is no valid defense. Second, the plaintiff must show that the likelihood of harm outweighs the importance of encouraging free expression. The court ruled that Bernier has failed to overcome these thresholds.

Availability of valid defenses

The court found that some of the publications which tagged Bernier as a racist, misogynist or anti-Semite are clearly defamatory, but Kinsella’s statements were not unique. At the time of the incident, there were other comments and media reports which also branded Bernier as far right, anti-immigrant and racist. Because of this widespread characterization of the plaintiff, the court said that the defense of justification could be invoked, and it had a reasonable chance of success if the action were allowed to proceed. Bernier’s failure to demonstrate that there were no available defenses meant he fell short of satisfying the first test.

Balancing test

The second test requires the plaintiff to show a causal link between the expression and the harm they suffered or will suffer. To pass the second test, the harm must outweigh the importance of upholding the expression.

Bernier alleged that he lost his seat because of Kinsella’s statements. But the court said that due to the prevalent reports of Bernier as racist and xenophic, “Mr. Kinsella’s postings can be seen as a drop of vitriol in a sea of criticism.”  The court concluded that Bernier failed to demonstrate any harm flowing from Kinsella’s statements.

The court cited Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, where the Court of Appeal said that the anti-SLAPP legislation aims to “weed out litigation of doubtful merit which unduly discourages and seeks to restrict free and open expression on matters of public interest.” In the end, the court did not allow Bernier’s defamation action to proceed because of his failure to satisfy anti-SLAPP’s two-part screening mechanism.

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