Executive Summary: Key Legal and Evidentiary Issues

• The central claim involved alleged defamation stemming from a documentary episode and related social media content.

• The court applied Ontario’s anti-SLAPP provisions to determine whether the lawsuit should proceed.

• Windrift Adventures conceded the impugned media content concerned matters of public interest.

• The motion judge found no substantial merit to the defamation claim and no serious reputational harm.

• The defence of responsible communication, fair comment, and justification were deemed valid.

• The Court of Appeal upheld the dismissal, rejecting the argument that a finding of abuse is a required element under section 137.1.

Facts and background

Windrift Adventures Incorporated operates a dog-sledding business and is owned by Thomas Pryde, Adrienne Spottiswood, and Mr. Pryde’s mother. The business became the subject of a broadcast episode of W5, a documentary news program produced by CTV-Bell Media Inc. The episode, titled “Dogs in Distress”, aired on February 5, 2022, and covered issues in the Canadian dog-sledding industry, including alleged mistreatment of sled dogs. Windrift was one of several operations profiled. The episode also referenced previous legal proceedings involving Windrift, including the removal of its dogs by animal welfare authorities and findings that the animals were in distress under the Provincial Animal Welfare Services Act.

In response, Windrift sued CTV-Bell Media Inc. and several individuals involved in the broadcast, alleging defamation. The claims targeted the episode itself, a tweet, a Facebook post, and a promotional video clip, asserting that the business’s reputation had been harmed.

Motion to dismiss under section 137.1

The defendants brought a motion under section 137.1 of Ontario’s Courts of Justice Act, which is designed to prevent litigation that unduly restricts freedom of expression on matters of public interest. This section, part of Ontario’s anti-SLAPP (Strategic Lawsuit Against Public Participation) regime, allows for early dismissal of such claims.

Windrift conceded the material in question was related to public interest, shifting the burden to prove two things: that the claim had substantial merit and that the defendants had no valid defence, and that the harm suffered outweighed the public interest in protecting the expression.

Findings of the motion judge

The motion judge found Windrift failed to meet this burden. The tweet, Facebook post, and video did not refer to Windrift, and thus could not meet the second element of the defamation test set out in Bent v. Platnick. While the episode did refer to Windrift, the judge found it did not lower its reputation in the eyes of a reasonable viewer. The episode accurately described the animal welfare proceedings and did not assert guilt of animal cruelty.

Furthermore, the judge concluded the defences of justification, fair comment, and responsible communication were valid on the facts. Windrift also failed to show that the harm it suffered—primarily emotional distress to Ms. Spottiswood and her inability to work—was serious enough to justify letting the lawsuit continue.

Appeal and appellate court’s reasoning

Windrift appealed, arguing that the motion judge erred in both her factual and legal findings. A new argument raised on appeal claimed that a proceeding must be found “abusive” to be dismissed under section 137.1, based on a recent Court of Appeal decision in Burjoski v. Waterloo Region District School Board. The appellate court rejected this interpretation, clarifying that Burjoski did not change the test established by the Supreme Court in Pointes Protection. The term “abusive” was used descriptively, not as a required legal element.

The Court of Appeal found no legal or factual error in the motion judge’s analysis. It affirmed that the claim lacked substantial merit, that viable defences were available, and that the alleged harm was insufficient to outweigh the public interest in protecting the expression.

Disposition

The appeal was dismissed. The defendants were awarded costs in the amount of $10,000, all-inclusive.