As a result, says the group’s lawyer Phil Horgan, the suit will proceed unless the matter can be settled out of court or unless another injunction is granted at a hearing Nov. 4.

“We are pleased with the decision,” Horgan told The Catholic Register. “For 40 Days for Life, the decision on this motion allows the action to proceed.  We will still need to prove our case at trial, which will be pursued, unless a resolution is reached.”

The annual 40 Days for Life campaign calls for peaceful protests for 40 days outside of abortion facilities across North America.

Last year, a Tik-Tok user, Brooke Dietrich, with the help of her Tik-Tok followers, sought to undermine and disrupte a 40 Days for Life campaign at a Waterloo hospital. Dietrich posted over a dozen videos about 40 Days for Life on Tik-Tok last October, calling on viewers to “(ruin) 40 Days for Life goal to fearmonger” and to “(mess) with 40 Days for Life schedule.” She encouraged fake sign-ups on 40 Days’ online calendars, displayed contact information of several persons associated with 40 Days and encouraged “shopping cart abandonment” on 40 Days’ online store in an attempt to tie up its inventory of books and clothing and prevent sales to genuine customers.

While the latter effort failed, the first two succeeded in undermining 40 Days’ vigils by filling up attendee lists with fake sign-ups and by causing certain 40 Days’ staff and volunteers to be spammed and harassed.

Dietrich’s videos also made certain claims about the conduct of actual 40 Days’ volunteers, including that they shout at people entering hospitals, which 40 Days considers false and defamatory.

As a result, 40 Days’ filed a lawsuit seeking to end Dietrich’s online campaign of harassment and defamation. Its lawsuit also alleged that Dietrich and other unnamed defendants engaged in civil fraud, breach of contract (breaching the terms that volunteers agree to when signing up) and conspiracy.

But Dietrich fought by filing what is known as an “anti-SLAPP” — or Strategic Litigation Against Public Participation — motion to try to get the lawsuit dismissed. Such suits seek to prove that litigation is actually designed to silence a critic or opponent. Ontario’s Courts of Justice Act allows a defendant to ask the court to dismiss such a lawsuit.

A “gag lawsuit” or SLAPP will be dismissed where the defendant is able to show that the lawsuit:

• arose from something the defendant said, and
• what the defendant said “relates to a matter of public interest”; and
• The plaintiff is unable to establish “grounds to believe” that:
  • Its lawsuit has substantial legal merit, and
  • the defendant has no valid defence (e.g. the defence of truth to a defamation claim), and
  • the harm suffered by the plaintiff as a result of the defendant’s expression is serious enough to outweigh the public interest in protecting that expression.

This anti-SLAPP law is designed to encourage broad participation in public debates on matters of public interest and to discourage the use of litigation as a way of stifling participation.

The second part of the legal test, however, is designed to avoid depriving a plaintiff of the opportunity to pursue a legitimate legal claim that has a reasonable prospect of success.

Dietrich satisfied the judge that she was being sued because of what she said, and that what she said “relates to a matter of public interest.” But 40 Days, for its part, satisfied the judge that its lawsuit is legitimate and has a reasonable prospect of success.

The court found that 40 Days’ defamation claim has “substantial merit” because Dietrich, in her videos, accuses the pro-life group of engaging in harassment, spreading false information and fearmongering. 40 Days says those allegations are damaging to its reputation.

The court also found that 40 Days’ online harassment claim also had substantial merit.

Finally, the court concluded that Dietrich’s defences to both the defamation and harassment claims were questionable and might not succeed at trial, so the claims should be allowed to proceed. The court also found that 40 Days’ claim for civil conspiracy to harass 40 Days should proceed, since the evidence established the defendants worked together with the intent of injuring 40 Days for Life and did in fact cause 40 Days to suffer damages.

Dietrich succeeded in having 40 Days’ claims for civil fraud and breach of contract against her dismissed. The Court found that when Dietrich signed herself up as a fake volunteer, 40 Days’ had not yet added its “Statement of Peace” to its sign-up page, and so Dietrich could not be responsible for breaching it, even if others who dishonestly signed up later had breached it.

As for the civil fraud claim, which related to the false sign-ups and the shopping cart abandonment plan, 40 Days knew early on that many sign-ups were false and could not show that the shopping cart abandonment, which did not work as Dietrich intended, had caused it any loss.

This may seem like a mixed outcome, but the fact that the defamation and harassment claims may proceed to trial means that 40 Days should have what it needs to stop Dietrich’s and others’ conduct from undermining its ability to carry out its mission.

But let’s take one step back. What happened with the part of the legal test where the court weighs the harm to the plaintiff against the public interest in protecting the defendant’s expression? This test is really about fairness and proportionality. It matters here how much harm the plaintiff actually suffered and is likely to suffer and whether it justifies a legal response that will potentially silence the defendant. For this part of the test, one can point to actual evidence of harm.

But how does a judge determine the value of the expression in question? Obviously, this “weighing” involves a great deal of judicial discretion. Sometimes, a highly discretionary test is unavoidable in law, but it raises the potential for biases to creep in. In this case, the judge did well at this stage of the analysis to focus on the specific parts of Dietrich’s messaging that 40 Days took issue with. 40 Days was not objecting to everything in her videos.

The court found that the harm to 40 Days was significant. There were many false sign-ups. Many people spammed the 40 Days’ personnel whose contact information was posted by Dietrich. On the other hand, while the court found that Dietrich’s videos, on the whole, related to a matter of public interest, the court was more specific — the weighing exercise is really about whether her specific statements within those videos that are alleged to be defamatory and harassing deserve protection. Where her focus was on actively disrupting and impeding 40 Days, the court found, the public interest in protecting her expression is outweighed by the harm to 40 Days.

There is a certain irony in Dietrich’s reliance on anti-SLAPP laws, when her aim with her video was not only to make her own views about abortion known in her own way, which she is free to do, but to use deception to prevent others from presenting their views in their way — namely through a peaceful roadside vigil.

Nobody is suggesting that Dietrich cannot go on making pro-choice videos. But as Horgan says, this court decision is a major success in 40 Days’ effort to protect its right to engage in its own expressive activities without active disruption through dishonest and defamatory means.

(John Sikkema is an Ottawa-based lawyer.)