Lambton couple say their comments about long term care are fair public comment

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A Petrolia nursing home suing them for defamation

A Lambton County couple says their online comments about long term care are fair public comment.

And they’re fighting a defamation suit by a Petrolia nursing home with a relatively new legal tool.

Tom and Maria Moore were served with a $200,000 defamation lawsuit by Fiddicks Nursing Home Oct. 21, 2020. Maria’s mother, Helena Dawson, was in the Petrolia home at the time. She died a week later on Oct. 27.

In its claim, Fiddicks says “due to their misguided dissatisfaction with Fiddicks, with respect to Dawson’s care, the defendants have embarked on a malicious campaign against the plaintiff by initiating defamatory falsehoods which have portrayed Fiddicks, both directly and by inference, as being both negligent and inept – all in an attempt to ignite fear, uncertainty and doubt in relation to the services provided by (Fiddicks) which has had the effect of lost business.”
The Moores say their criticism of long term care, during the height of the pandemic when seniors were the most vulnerable, is a matter of public interest.

The lawsuit Fiddicks’ lawyer lists 16 instances on Twitter where the pair commented on the state of long term care including retweets from experts in the field who were voicing concerns daily during the pandemic about the state of long term care.

The tweets talked about everything from the Moores’ observation about staffing at the Petrolia home to the opinions of others.

One of the tweets from Dr. Amit Arya – a University of Toronto professor who works in palliative and long term care and co-founded Doctors for Justice in LTC said, “Ontario is now reporting the highest daily #COVID19 case count ever. With 44 #LTC homes also in outbreak, our government has forgotten about our seniors. There are no excuses left. The time for action is now.”

The lawsuit also cites a September 2020 article in The Independent about an investigation done by the Ministry of Long Term Care into Dawson’s care at the home.

At the time, Maria Moore relayed to the newspaper that staff at the home had told her mother to soil herself since they didn’t have time to take her to the washroom. The Moores also voiced concerns about their access to Dawson saying the home’s policies on visiting residents were not in line with the provinces.

The lawsuit says the statements “were false and defamatory” and “were published with express malice or reckless disregard for the truth” and “were calculated to disparage and injure (Fiddicks) reputation in southern Ontario…and “greatly injured” the home’s credibility.

The defamation suit goes on to say the comments “strike right at the heart of the services provided by Fiddicks to their clients and were meant to disparage, embarrass and undermine Fiddicks to both existing and potential clients..(and) are false.”

And it says the Moores statements cause “irreparable damages” to Fiddicks’ reputation.

But the Moore say their statements were fair comment in a time when the state of long term care in Ontario, in a pandemic, was under a microscope.

On Jan. 12, the Moore’s lawyer, filed a motion under Ontario’s Protection of Public Participation Act – also known as Anti-SLAPP legislation saying the action is meant to silence the couple. If it is successful, the defamation suit will be quashed by the courts.

Lawyer Denis Grigoras says the statements “related to the onset of the COVID-19 pandemic, which disproportionately impacted residents in long term care facilities like Fiddicks is a matter of public interest.”

The motion says “the words complained of were fair comment and insofar as they consisted of statements of fact, the words were true.”

Grigoras pointed to a number of reports from the Ministry of Long Term Care done at the Petrolia home to show the statements had merit.

It adds the opinions stated in the newspaper and on Twitter “were fair comment made in good faith and without malice on a matter of public interest.

“The goal of the action (by Fiddicks),” Grigoras wrote “is to have the Moores remove themselves from participating in public discourse and debate as well as to silence and financially damage them.”

The legislation the Moores are relying on is relatively new, according to Jim Turks, the director of the, Centre for Free Expression at Toronto Metropolitan University (formerly Ryerson University).

Ontario’s Anti SLAPP legislation came into effect in 2015. It’s goal is to protect free speech.

“Anybody can sue anybody for defamation, anytime, whether there’s a basis for it or not,” Turks tells The Independent.

“And if you have enough money, you can often win, not in the sense that you win your case, but that the cost of the person you’re suing is so high to them, that they give up and do what you want, because they can’t afford to defend themselves.”

The Protection of Public Participation Act changed that, Turks says.

“The term SLAPP means strategic lawsuit against public participation. So, it’s a technique that large corporations have used, and wealthy individuals have used, to silence voices that they don’t want to speak,

“The whole purpose of the slap suit is to silence you.”

To successfully use the Anti-SLAPP legislation, the defendants have to prove their comments are in the public interest, says Turks.

Then the plaintiff has to prove two things; there is no defense which can be made to the charges and its interests are greater than public interest or the right to freedom of expression.

Turks says six cases under the legislation have made it to the Supreme Court of Canada and in September 2020, the court upheld the legislation as constitutional.

Turks recently completed a study on anti-SLAPP legislation and Ontario’s is by far the most effective to stop what some call nuisance defamation suits.

“There’s Anti-SLAPP legislation in 37 jurisdictions in the world. Three of them are in Canada, Quebec, Ontario, and BC. The legislation around the world varies and how effective it is.

“We’re in the next month going to publish this major report on Anti-SLAPP legislation and its effectiveness in different jurisdictions and in all the jurisdictions we’re seeing this world, the good news is the best Anti-SLAPP legislation in place in the world is Ontario.”

Turk says the motion to toss out the lawsuit has to be heard in 60 days. And if a defendant doesn’t meet the standard and the lawsuit is thrown out, the defendant would pay all the legal fees of the case. They could also be awarded damages.

At press time, the date for a hearing for the Anti-SLAPP motion in the case between Fiddicks and the Moores had not been set.