11.17.2021 12:51 PM

Lawyer’s Weekly on Bernier v. Kinsella: “absolutely correct”

Full story here. Snippets below:

“People’s Party of Canada (PPC) leader Maxime Bernier has been dealt a blow in his defamation action against noted political pundit Warren Kinsella after an Ontario Superior Court justice dismissed it under a provincial law aimed at preventing powerful interests from bringing actions which chill speech on issues of public policy.

…Justice Calum MacLeod ruled Bernier was unable to clear those hurdles and dismissed the lawsuit, writing that the former MP ran a “significant risk that his action will succumb to one of the defences of justification or fair comment.”

…Justice MacLeod wrote the case was not one of “false news” with no foundation in fact, and that Kinsella was basing his comments on actual positions taken by Bernier…

[MacLeod wrote:] “As the evidence shows, widespread characterization of Mr. Bernier and the PPC as racist and xenophobic or at least as pandering to those elements of the political spectrum was rife in the media. Comparisons with Donald Trump, Nigel Farage or Marine LePen were widespread. Mr. Kinsella may have approached his task with particular caustic enthusiasm, but, at worst, Mr. Kinsella’s postings can be seen as a drop of vitriol in a sea of criticism.”

…Noted defamation lawyer Howard Winkler of Winkler Dispute Resolution said he felt Justice MacLeod was correct to dismiss Bernier’s action and the case stands as a message that the anti-SLAPP legislation is going to catch debate and discourse of a political nature in all but the most egregious cases…”

“The legislation is broader than just David and Goliath-type situations — it was intentionally drafted to protect expression related to matters of public interest,” he said. “It is absolutely correct for the court to look at who the parties are and the context in which the exchange is took place — and cases where you have public figures engaged in discourse related to public policy they should not be before the courts.”


  1. But then, the judgment is not the problem. The real problem is the action itself and the ability of any litigant to file this type of action. It should be blocked at the procedural level and not be allowed to go forward, period. Naturally, no one will address that and are any of you surprised?

    • ablanas says:

      The law DOES permit this type of action to be stopped at the immediate outset of proceedings, and even before a statement of defence is filed. As soon as an anti-SLAPP motion is filed, nothing else can move forward — no other motions, etc, can be filed until the anti-SLAPP motion is heard and ruled upon. So this really can be a decapitating tactic to forestall any further abuse of litigation process.

  2. Maureen says:

    Nice to have a precedent-setting case.

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