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AGM’s Meredith Hayward and Michael Binetti successful in anti-SLAPP motion dismissing defamation claim by anti-vaccination physicians

In a decision released on February 24, 2022 in Gill v. Lamba, Justice Elizabeth Stewart of the Ontario Superior Court of Justice dismissed an action brought against more than 20 media and health care professionals that had been brought by two physicians who are known as prominent anti-vaccination advocates. Affleck Greene McMurtry lawyers, Meredith Hayward and Michael Binetti, represented two of the successful defendants on this motion, which was brought under s. 137.1 of the Courts of Justice Act (“CJA”), R.S.O 1990, c C.43. Section 137.1 allows for the dismissal by judicial order of a proceeding that limits debate on matters of public interest. These motions are more commonly referred to as “anti-SLAPP” motions. A SLAPP refers to a strategic lawsuit against public participation – a lawsuit aimed at chilling public discourse on matters of public interest. In words of  Justice Stewart, “If this proceeding were allowed to continue, its chilling effects would have an impact well beyond the parties to this case. There is a real risk that the effects of this proceeding will stifle the speech of the defendants, and deter other physicians, journalists, scientists, and other members of the public from engaging in public discussion and discourse about potential misinformation on matters of public health in the future.”

The plaintiffs in the action were Dr. Kulvinder Kaur Gill and Dr. Ashvinder Kaur Lamba – both Ontario medical doctors who have been outspoken during the pandemic on issues relating to the seriousness of COVID-19, the effectiveness of vaccinations, and the use of controversial COVID-19 treatments. As found by the presiding judge, “Dr Gill has suggested that the risks posed by the COVID-19 virus are exaggerated, vaccines are unnecessary, lockdowns are illogical, and hydroxychloroquine is an effective treatment for infection caused by the virus,” all of which had led to her being publicly cautioned by the Ontario College of Physicians and Surgeons of Ontario “against using her position as a physician to bolster her dissemination of such misleading information which contradicts the positions advocated by public health authorities in Ontario and Canada.” According to the presiding judge, the other defendant, “Dr. Lamba is to some extent a secondary protagonist with respect to the advancement of these claims which, in large part, arise out of matters in which Dr. Gill is the central figure.”

In detailed reasons, Justice Stewart carefully outlined the claims against each of the numerous defendants and found that all of them should be dismissed under s.137.1 of the CJA, stating with respect to the claim against one of the defendants, K. Bruce Arthur, “Arthur’s tweet cannot bear the defamatory meanings ascribed to it by Dr. Gill. It does not call her a conspiracy theorist, it does not call into question her mental stability, and it says nothing about her ability to care for her patients. It merely states Arthur’s own view that her publicly available tweets include dangerous misinformation about COVID-19, and that the spreading of this misinformation and her related accusations hurled at Picard were a ‘disgrace’. …Dr. Gill has fostered a reputation for herself as an outspoken and controversial advocate against public health advice on COVID-19 measures, and the mainstream media’s coverage of COVID-19. Public health authorities have deemed anti-vaccine and anti-lockdown rhetoric to be “misinformation”. Therefore, Arthur’s characterization of Dr. Gill’s tweets as “misinformation” likely served only to solidify her stance as a crusader against public health advice and the mainstream media, a reputation she herself created.” Similar comments were made about the dismissed claims against the other defendants.

Section 137.1 of the CJA, is a recent enactment aimed at curtailing baseless actions aimed at silencing critics on matters of public interest. As observed by Justice Stewart, The “crux of the inquiry” …is the balancing exercise required by s. 137.1(4)(b) which involves a weighing of the seriousness of the harm to the Plaintiffs as a result of the expressions of the Defendants and the public interest in permitting the proceeding to continue, versus the public interest in protecting the expression.” In this case, the balance very clearly favoured protecting expression on matters that could not be of more interest to the public during the pandemic.

Kenneth A. Dekker
Affleck Greene McMurtry LLP

Kenneth A. Dekker

Kenneth Dekker, a partner of the firm, is a successful trial and appellate lawyer who is valued by his clients as a resourceful and practical litigation counsel.

Over more than two decades, Ken has litigated noteworthy cases in a range of fields that include class action defence, securities and broker-dealer litigation and regulatory defence, corporate and shareholder disputes (including oppression and winding up cases), defamation, civil fraud litigation, disputes over contracts, injunctions, professional liability litigation, employment litigation and cross-border litigation issues.

Ken has appeared before all levels of courts in Ontario, including the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court and the Court of Appeal for Ontario, as well as before the Supreme Court of Canada. Ken also represents and advises clients in regulatory matters before the Investment Industry Organization of Canada (IIROC), the Mutual Fund Dealers Association of Canada (MFDA) and the Ontario Securities Commission (OSC).

Ken has been ranked as Repeatedly Recommended for Securities Litigation by Lexpert, for Corporate and Commercial Litigation by Best Lawyers of Canada, and he has been given the highest available rating of AV, or pre-eminent, by his peers on Martindale-Hubbell.

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