Canadian Frontline Nurses vs. Canadian Nurses Association Notes

Section 137.1 Framework and Application to Facts

  • Paragraph 34 initiates an examination of the reasons for judgment to observe how the legal test is applied to the case's facts.
  • Reviews conceptual framework of section 137.1, especially subsections 3 and 4.
  • Subsection 3: Moving party's threshold burden for dismissal of the underlying proceeding.
  • Subsection 4: Responding party's (plaintiffs in defamation action) obligation.
  • If the plaintiff satisfies the three elements under subsection 4, the proceeding will not be dismissed; requires showing:
    • The proceeding has substantial merit.
    • The moving party (defendants) has no valid defense.
    • Harm suffered by the responding party outweighs the public interest in protecting the expression.
  • Subsection 4 involves weighing the public interest in permitting the proceeding versus protecting the expression; two different conceptualizations of public interest.
  • The legislation, the Protection of Public Participation Act, which amended the Courts of Justice Act, aims to prevent proceedings that limit freedom of expression on matters of public interest.
  • Section 137.1 enables the prevention of proceedings that limit freedom of expression on matters of public participation.
  • Canadian Nurses Association and Together News Inc. (defendants) used section 137.1 to seek dismissal of a defamation proceeding against them.
  • The focus shifts to how the abstract legal elements play out against the actual case facts.

Application of Subsection 3

  • Paragraph 35 addresses whether the proceeding arises from an expression related to a matter of public interest (subsection 3).
  • Plaintiffs concede that defendants met the threshold burden under subsection 137.1(3).
  • The Canadian Nurses Association statement and the Together News Inc. article are expressions relating to a matter of public interest.
  • The burden shifts to the plaintiffs to show the three elements in subsection 137.1(4) are met.

Defamation Test

  • Paragraph 36 outlines the three criteria to prove defamation:
    • The words complained of were published.
    • The words referred to the plaintiff.
    • The words were defamatory, lowering the plaintiff's reputation.
  • The following paragraphs consider the evidence to determine if the proceeding has substantial merit, including establishing the elements of defamation.

Key Elements and Considerations

  • Paragraph 37: TNI defendants concede substantial merit absent a valid defense; CNA statement doesn't explicitly name plaintiffs, but CNA doesn't dispute the reference to plaintiffs.
  • Paragraph 40: Comments impugning a professional's qualifications are defamatory.
  • Paragraph 41: The judge concludes the CNA statement could lower the plaintiff's reputation; the claim has a real prospect of success.

Defenses

  • Addresses whether the defendants have valid defenses.
  • Paragraph 42: Discussion of raised defenses and respective positions.
  • Paragraph 43: CNA defendants raised the defense of qualified privilege.
  • Paragraph 48: Both sets of defendants raised the defense of truth or justification.
  • Paragraph 59: Plaintiffs argue that the defense of fair comment fails.
  • Paragraph 61: CNA defendants' rebuttal, arguing fair comment made in good faith and without malice.
  • Paragraph 62: TNI defendants argue opinions expressed in the TNI article were recognizable as comment.

Conclusions on Defenses

  • Paragraph 71: The judge considers the conclusions on the defenses.
  • Plaintiffs raised valid arguments with a basis in the record and the law.
  • Qualified privilege: Arguable that privilege was exceeded because the CNA statement was published to the world.
  • Truth or justification: Parts of the sting are contradicted by the plaintiff's evidence.
  • Fair comment: If the justification defense fails, the defense of fair comment is not available.

Harm and Public Interest Weighing

  • Paragraph 72: Finding that the plaintiffs have raised valid arguments is not sufficient to meet the test under 137.1(4)(a)(ii); the plaintiffs are required to show that the defenses do not tend to weigh more in favor of the defendants.
  • Because the plaintiffs failed to discharge their burden under the last element of the test under subsection 4 (the harm element and the weighing of the public interest), there is no need at this early stage of the proceeding to do a deeper dive into the merits of the defenses in order to determine whether the defenses tend to weigh more in favor of the defendants or not.
  • Section 137.1(4)(b) (harm consideration) is the focal point; the plaintiffs failed to satisfy the three elements required under subsection 4(b).
  • This case determined that subsection 4(b) is the crux of the 137.1 analysis.
  • Subsection 4(b) gives courts the ability to scrutinize the effects on freedom of expression and public discourse.
  • It allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit, which is a fundamental value in its own right in a democracy, affects in turn the freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy.

Harm and Causation

  • Paragraph 74 discusses harm is principally important in order for a plaintiff to meet their burden under one thirty seven point one sub four b.
  • Two showings are required:
    • Existence of harm
    • Causation (harm suffered as a result of the moving party's expression).
  • Paragraph 75: Evidence of a causal link between expression and harm is important, especially if other sources may have caused harm.
  • Paragraph 76: Nagel's evidence regarding the harm that she suffered is set out in her affidavit.
  • Paragraph 77: Shijunian and Pitter's evidence on the issue of harm similar to Nagal's evidence, but Shujunian adds it on September 2021. Her personal address was shared by an unknown individual on social media, and that she and other members of Canadian frontline nurses received numerous death threats in and around the same time.
  • Paragraphs 80-86: Consideration of evidence of harm by the court.

Weighing Public Interest

  • Paragraph 87: Factors to consider in weighing the public interest (derived from the Points case, Supreme Court of Canada) include:
    • Importance of the expression
    • History of litigation between the parties
    • Broader effects on other expressions
    • Potential chilling effect on future expression
    • Defendant's history of activism or advocacy
    • Disproportion between resources used and harm caused
    • Possibility of provoking hostility against a vulnerable group.

Judge's Conclusions

  • Paragraph 93: The judge concluded that the plaintiffs failed to establish that they have suffered sufficiently serious harm as a result of the CNA statement and the Together News Inc article, which outweighs the public interest in protecting the expression in these publications.
  • The public interest in protecting the expression contained in these impugned publications is more important than the public interest in permitting the underlying proceeding to continue.
  • Paragraph 93: Plaintiffs failed to show a causal link between alleged harm and the publications. This is because there are significantly more important sources of harm to the plaintiff's reputations, which are unrelated to the CNA statement and the TNA article, TNI article.
    • Professional misconduct investigations of the plaintiffs
    • Canadian Nurses Association, terminations of the plaintiffs from their employment for cause
    • Numerous media reports about the plaintiffs.
  • Paragraph 95: The last source of harm was recognized by miss Nagle, one of the plaintiffs, in a video that she posted on social media and in which she stated that the CBC had ruined her career and destroyed her life. The plaintiffs had not sued the CBC for libel.
  • Paragraph 96: The CNA statement and TNI article are described as a drop of vitriol in a sea of criticism.
  • Paragraph 98: The public interest in protecting the expression in issue is substantial. The expression in both the CNA statement and the TNI article relate to matters of public interest regarding public health that are of significant importance.
  • Paragraph 98: The COVID nineteen pandemic and the COVID nineteen health treatments have been described as, quote, the defining public health issue of our time.
  • References Gill v MacIver for principles on addressing misinformation.
  • Paragraph 99: notes the importance of the expression and the potential chilling effect on organizations like the Canadian Nurses Association and media organizations like Together News Inc, the public interest in protecting the expression in issue is supported by the Canadian Nurse Association's history of advocacy in the public interest.
  • Paragraph 100: The judge finds the decision to sue the CNA defendants and the TNI defendants is puzzling given that the information reported and opinions expressed in the CNA statement and the TNI article were similar to the information reported and opinions expressed in numerous other articles published across Canada.
  • Paragraph 101: Concludes that the plaintiffs have not met the burden of proof(balance of probabilities) showing that the harm suffered outweighs the public interest in protecting the expression; motions are granted, and the action is dismissed.