Anti-SLAPP Law in Ontario: Can Recruiters Sue an Organization for Speaking Out on Behalf of Migrant Workers?

The law protects public participation against lawsuits intended to silence criticism and advocacy.

Imagine this.

A group of migrant workers approaches an organization that helps foreign workers in Canada. They tell the organization that they paid substantial recruitment fees to secure employment in Canada and were deployed to work without the required work authorization.

The organization listens to their stories, helps them document their experiences, assists them in filing complaints with the appropriate authorities, and brings their concerns to public attention.

The organization eventually publishes a statement describing the workers' allegations and calling for accountability.

The recruiters are unhappy. They threaten to sue the organization for defamation unless it retracts its statements, issues an apology, and stops speaking publicly about the matter.

Should the organization simply back down?

Not necessarily.

If this happened in Ontario and the recruiters actually commenced a defamation lawsuit, the organization might have protection under Ontario's anti-SLAPP law.

Let's explain what that means.

What is SLAPP?

SLAPP stands for Strategic Lawsuit Against Public Participation.

In simple terms, a SLAPP is a lawsuit used to intimidate or silence someone who speaks out on an issue of public interest.

The idea is straightforward: instead of using the courts primarily to obtain a legitimate legal remedy, someone may use the threat or burden of litigation to discourage criticism, advocacy, or public discussion.

For example:

• A journalist investigates alleged corporate misconduct and is threatened with a defamation lawsuit.

• A community activist criticizes a development project and is sued by the developer.

• A worker speaks publicly about alleged workplace exploitation and receives a legal threat.

• An advocacy organization exposes alleged recruitment abuses and is threatened with litigation by the recruiters involved.

The problem is not that people or businesses have no right to protect their reputations.

They do.

The problem arises when litigation is used to discourage legitimate public participation.

What does Anti-SLAPP Law in Ontario say?

Ontario introduced anti-SLAPP protections through the Protection of Public Participation Act, 2015, which amended the Courts of Justice Act.

The main provision is section 137.1.

It allows a defendant to ask the court to dismiss a lawsuit if the lawsuit arises from an expression relating to a matter of public interest.

The law recognizes that people should be able to participate in public discussions without being intimidated by the threat of expensive litigation.

However, anti-SLAPP protection is not automatic. The law establishes a specific test.

Applying the law to our hypothetical case

Let's return to the migrant workers' organization.

Suppose the recruiters actually file a defamation lawsuit because the organization publicly discussed the workers' allegations.

Could the organization ask the court to dismiss the lawsuit under section 137.1?

Potentially, yes.

Is the organization speaking about a matter of public interest?

The first question is whether the lawsuit arises from expression relating to a matter of public interest.

In this case, the organization is discussing alleged recruitment fees, the deployment of foreign workers without the required authorization, and the treatment of migrant workers.

These are not simply private disagreements between the recruiters and the workers.

They concern compliance with Canadian employment and immigration laws, the protection of vulnerable foreign workers, and the accountability of recruitment businesses.

The organization could argue that its statements contribute to an important public discussion about migrant worker protection.

It does not have to be a newspaper or media organization to qualify. An advocacy organization can also participate in public debate.

Can the recruiters prove that their lawsuit should continue?

Once the organization establishes that its expression relates to a matter of public interest, the burden shifts to the recruiters.

Under section 137.1(4), the recruiters must satisfy the court that:

• Their lawsuit has substantial merit.

• The organization has no valid defense.

• The harm they have suffered or are likely to suffer is sufficiently serious that the public interest in allowing the lawsuit to continue outweighs the public interest in protecting the organization's expression.

This is important.

Suppose the organization has copies of the workers' affidavits, receipts, bank transfers, employment documents, correspondence, and complaints filed with government authorities.

These documents may help establish that the organization's statements were supported by evidence.

The organization may also be able to rely on legal defenses such as truth, fair comment, qualified privilege, or responsible communication on matters of public interest, depending on the circumstances.

Simply repeating another person's allegations does not automatically protect an organization from defamation liability. It must still be careful about the accuracy and presentation of its statements.

What about the public interest?

This is perhaps the most important part of the analysis.

Imagine that the organization is forced to spend thousands of dollars defending a defamation lawsuit.

Its resources could otherwise have been used to assist migrant workers, document complaints, provide referrals, and educate vulnerable workers about their rights.

Other organizations may also become afraid to speak publicly about recruitment abuses.

Workers may become reluctant to report their experiences, knowing that the organizations helping them could face expensive litigation.

The court must consider these broader consequences when balancing the public interest in allowing the lawsuit to continue against the public interest in protecting expression.

The recruiters have a legitimate interest in protecting their reputation. But the public also has an interest in knowing about alleged recruitment abuses and in ensuring that vulnerable workers can seek assistance.

If the recruiters cannot satisfy the statutory test, the court must dismiss the lawsuit.

What does the Supreme Court of Canada say?

In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, the Supreme Court of Canada explained how Ontario's anti-SLAPP legislation should be applied.

The case involved a development company that sued a residents' association following public participation in a dispute concerning a proposed development.

The Supreme Court upheld the dismissal of the lawsuit under Ontario's anti-SLAPP legislation.

The Court emphasized that the law seeks to protect expression on matters of public interest and prevent litigation from unduly restricting public participation.

The decision is relevant to our hypothetical because public participation is not limited to individuals. Organizations also play an important role in raising issues affecting the community.

Does this mean recruiters cannot sue an advocacy organization?

No.

Anti-SLAPP law does not give advocacy organizations a free pass to publish false or defamatory statements.

Recruiters and businesses retain the right to protect their reputations through legitimate legal proceedings.

If an organization knowingly publishes false allegations, exaggerates the workers' accounts, or presents unverified allegations as established facts, it may still face legal consequences.

The important distinction is that a legitimate defamation claim should not be used as a weapon to discourage public-interest advocacy.

Also, a demand letter threatening litigation is not itself a lawsuit that can be dismissed under section 137.1. The anti-SLAPP remedy becomes relevant once legal proceedings have actually been commenced.

What happens if the organization wins?

Under section 137.1(7) of the Courts of Justice Act, a defendant who successfully obtains dismissal under the anti-SLAPP provision is generally entitled to costs of the motion and the proceeding on a full indemnity basis, unless the court determines otherwise.

Furthermore, under section 137.1(9), the court may award damages if it finds that the plaintiff brought the proceeding in bad faith or for an improper purpose.

These provisions recognize that defending against an abusive lawsuit can itself be costly and damaging.

The bottom line

Migrant workers' organizations play an important role in helping vulnerable workers understand their rights, report alleged violations, and bring issues of public concern to the attention of government authorities and the public.

They should be able to perform legitimate advocacy without automatically fearing that every criticism will result in a defamation lawsuit.

That does not mean they are above the law. Their statements must still be responsible and legally defensible.

But neither should the threat of litigation become a convenient way to silence those who expose alleged wrongdoing.

Protecting someone's reputation is a legitimate legal objective. Silencing public participation through litigation is another matter entirely.

Ontario's anti-SLAPP legislation provides an important safeguard when those two interests collide.

Need legal assistance?

If you or your organization has received a demand letter or is facing a civil lawsuit arising from public statements, Apuntar Legal Services Professional Corporation can help you understand your legal options within the scope of Ontario paralegal practice.

Visit apuntarlaw.ca.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Whether a proceeding qualifies for dismissal under Ontario's anti-SLAPP legislation depends on the specific facts, evidence, and applicable law.