Canadian frontline nurses versus Canadian Nurses Association

Public Participation and Social Media

  • The intersection of new media, common law of defamation, and social media platforms offers a chance to explore public participation.
  • Public participation is vital in free and democratic societies.
  • Social media's role in enabling or disabling public discourse is crucial, especially on matters of public interest.
  • The case Canadian frontline nurses versus Canadian Nurses Association captures these issues, functioning as a vehicle to explore public participation.

Ontario Superior Court Judgment (2022)

  • An Ontario Superior Court judgment from 2022 provides the context.
  • The factual context involves public health and communication during the COVID crisis and lockdowns.
  • Several plaintiffs and defendants are involved. Keep track of these parties while reading the judgment.

Parties Involved

  • Plaintiffs: Responding party.
  • Defendants: Moving party.
  • Defamation proceeding brought by plaintiffs against defendants.

Courts of Justice Act: Section 137.1

  • The defendants moved under a specific Ontario legislation called the Courts of Justice Act.
  • Specifically, section 137.1 of the Courts of Justice Act is the focal point.
  • This section addresses court proceedings concerned with preventing actions that limit freedom of expression on matters of public interest.
  • These proceedings are sometimes known as "gag orders" or "gag proceedings."

Freedom of Expression vs. Individual Reputation

  • The act balances freedom of expression (guaranteed under Section 2(b) of the Charter of Rights and Freedoms) with the right to individual reputation.
  • The public interest can sometimes conflict with freedom of expression.
    • Section 137.1 allows a defendant in a defamation proceeding to request the action be dismissed.

Key Points in the Judgment

  • Paragraphs 1 and 2 outline the court's endorsement.
  • Defendants move under section 137.1(3).
  • Section 137.1(3) allows defendants to move for an order dismissing the defamation action.
  • Section 2 summarizes the judgment: The action meets the criteria under section 137.1(3).
  • The proceeding arises from expressions related to a matter of public interest.
  • Plaintiffs failed to discharge their burden under section 137.1(4).

Factual Background

  • The factual background is detailed and relevant, summarizing the positions of the parties involved.
  • Canadian Frontline Nurses (CFN) and Canadian Nurses Association are key parties.
  • Together News Incorporated (TNI) is a news organization implicated due to its coverage of certain events.

2021 Protests

  • The September 1, 2021 protests, organized outside hospitals across the country, are significant.
  • CFN organized more than 15 rallies/protests on September 1 outside hospitals across Canada.

Context of the Protests

  • The protests emerged from concerns about mandatory vaccination policies for healthcare workers.
  • Social media platforms were used to disseminate views on the pandemic, restrictions, vaccines, and other public issues.

Digital Media's Role

  • CFN prepared a digital flyer for the September 1 protest, broadcasted on various social media channels.
  • The flyer's language reflected the sentiment of standing up for freedom.

Canadian Nurses Association's Response

  • On September 9, 2021, the Canadian Nurses Association posted a statement titled "Enough is Enough. Professional nurses stand for science-based health care" on its website and social media accounts.

Together News Inc. (TNI) Article

  • On September 11, 2021, TNI published an article titled "Quack Quack, these provirus nurses have dangerous ideas" on its website.
  • The article was posted in the opinion section of the news website.

The Defamation Action

  • The action commenced on December 13, seeking general damages of 750,000750,000 and aggravated/punitive damages of 250,000250,000.

Defenses Raised

  • The CNA and TNI served their statements of defense in February 2022.
  • CNA defenses: qualified privilege, fair comment, responsible communication on matters of public interest, and truth/justification.
  • TNI defenses: fair comment, responsible communication on matters of public interest, and truth/justification.

Purpose of Section 137.1

  • Sections 137.1 to 137.5 of the Courts of Justice Act came into force in November 2015.
  • These provisions mitigate the harmful effects of strategic lawsuits against public participation (SLAPs).
  • SLAPs are lawsuits initiated against individuals or organizations that speak out on an issue of public interest.

SLAP Lawsuits:

  • SLAPs are initiated by plaintiffs who use litigation not to vindicate a bona fide claim, but to limit the effectiveness of the opposing party's speech and deter participation in public affairs.
  • Libel chill is a consequence of SLAPs.

Purposes of the Legislation (Section 137.1(1))

  • To encourage individuals to express themselves on matters of public interest.
  • To promote broad participation in debates on matters of public interest.
  • To discourage the use of litigation as a means of unduly limiting expression on matters of public interest.
  • To reduce the risk that public participation in debates on matters of public interest will be hampered by fear of litigation (libel chill).

Definition of "Expression" (Section 137.1(2))

  • Expression: Any communication regardless of whether it is made verbally or nonverbally, publicly or privately, and whether or not it is directed at a person or entity.

Order to Dismiss (Section 137.1(3))

  • On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection 4, dismiss the proceeding against the person IF the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
  • This places a threshold burden on the defendant (moving party).

Limitations on Dismissal (Section 137.1(4))

  • A judge shall NOT dismiss a proceeding under subsection 3 IF the responding party (plaintiffs) satisfies the judge that:
    • (A) There are grounds to believe that:
      • (i) The proceeding has substantial merit.
      • (ii) The moving party has no valid defense in the proceeding.
    • (B) The harm likely to be or have been suffered by the responding party as a result of the moving party's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

Supreme Court of Canada: Point Case (2020)

  • The framework in section 137.1 is set out by the Supreme Court of Canada in the Point case (2020).
  • The threshold burden on the moving party is to show on a balance of probabilities (civil standard of proof) that the underlying proceeding arises from its expression and that such expression relates to a matter of public interest broadly defined.

Substantial Merit (Section 137.1(4)(a)(i))

  • To discharge this burden, the plaintiff must satisfy the judge that there are grounds to believe that its underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success.

No Valid Defense (Section 137.1(4)(a)(ii))

  • Under this provision, the moving party must put potential defenses in play.
  • The responding party (plaintiff) must show that none of those defenses are valid in order to meet its burden.
  • This requires a showing that there are grounds to believe that the defenses have no real prospect of success.

Weighing the Public Interest (Section 137.1(4)(b))

  • The burden is on the plaintiff to show on a balance of probabilities that it has suffered or will suffer harm and that such harm is a result of the expression established under section 137.1(3), and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the harmful effects on expression and public participation.

Considerations for "No Valid Defense"

  • The plaintiff must show that there are grounds to believe that the defendant's defenses have no real prospect of success.
  • The plaintiff must show that there are grounds to believe that the defenses do not tend to weigh more in favor of the defendant.
  • There must be a basis in the record and the law to support a finding that the defenses do not tend to weigh more in favor of the defendant.

Limited Weighing of Evidence

  • Given the early stage at which motions under section 137.1 are brought, a motion judge deciding a motion should engage in only limited weighing of the evidence.
  • Motion judges should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage where judicial powers of inquiry are broader and pleadings are more fully developed.