follows an improper path of reasoning when it justifies reinstating the chambers judge’s
of the competing values at play under legislation designed to discourage SLAPPs; the
protection of individual reputation and freedom of expression are. Moreover, the
promotion of equality is not one of the core values underpinning freedom of expression.
Assigning any role to the promotion of equality in the assessment of the public interest
in protecting expression goes against the doctrine of content neutrality embraced by the
Court in its jurisprudence. More importantly, the promotion of equality is in no way a
factor tethered to the text of s. 4(2)(b), and for this reason alone, is not a relevant factor
in the public interest weighing exercise.
Finally, restricting the availability of tort actions for defamation can have
a chilling effect. In the context of defamatory counter-speech, interpreting s. 4 of the
PPPA so as to deprive defamed parties who have suffered serious harm of their day in
court could very well be detrimental to public debate. It could prevent those who hold
controversial or unpopular views from entering the public arena to share them. This
conclusion does not turn the concept of chilling effect on its head. The deprivation,
through a court order, of a party’s right to vindicate a legitimate claim imposes a legal
penalty on that party.
In the instant case, the chambers judge erroneously ignored factors
aggravating the harm likely to have been or to be suffered by N, despite the fact that
they were specifically argued by him. In addition, he gave little consideration to the
2023 SCC 14 (CanLII)
dismissal order on the basis that H’s expression promotes equality. Equality is not one
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