Heather Wright/The Independent

An Ontario Superior Court justice says a Lambton County couple’s concerns about the care their mother received in a Petrolia nursing home during the pandemic were a matter of public interest.

Justice J. Ross Macfarlane dismissed a defamation case launched by Michael Fiddick, the former owner of Fiddick’s Nursing Home, which charged the Moores’ dispute was private and should have never been aired publicly on social media and in the pages of The Independent.

Tom and Maria Moore, who now live in Lambton Shores, were served with the $200,000 lawsuit Oct. 21, 2020. Maria’s mother, Helena Dawson was a resident at Fiddick’s. She died a week after the suit was launched.

The defamation suit pointed to 16 instances on social media and stories in The Independent about the state of long term care during the pandemic. The tweets relayed the Moores’ observations about staffing at the Petrolia home and shared the opinion of experts. The couple also voiced concern about Fiddick’s pandemic restrictions on visitors which were more stringent than the provincial policies.

The lawsuit also cited a September 2020 article in The Independent about an investigation done by the Ministry of Long Term Care into Dawson’s care. The ministry, in its report, said Fiddick’s failed to ensure any suspicions of abuse were reported and investigated immediately with appropriate action taken. It also found Fiddick’s failed to ensure residents rights to communicate in confidence and receive visitors in private without interference was fully respected and promoted.

The Fiddick’s defamation lawsuit charged 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.

But the Moores 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, 2023, the Moore’s lawyer, filed a motion under Ontario’s Protection of Public Participation Act – also known as Anti-SLAPP legislation – saying the action was meant to silence the couple.
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 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.”

Ontario’s Anti-SLAPP laws are relatively new by legal standards. The province introduced it in 2015 and about a half dozen cases were taken to the Supreme Court as lawyers tested the limits of the legislation which was written to protect free speech rights according to Jim Turks, the director of the, Centre for Free Expression at Toronto Metropolitan University.

“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,” Turks told The Independent at the time.

Justice Macfarlane, in his ruling issued in February, said he disagreed with Fiddick’s premise that the Moores concerns about the care of their mother were a private matter.

Macfarlane writes the defamation suit paints a narrow picture of a dispute without taking the pandemic into account as context for the “enormous public interest in the quality of care being provided in long term care homes at that time.”

Macfarlane found some of the statements on Twitter and in The Independent could be considered defamatory, however would likely to be found as free speech at a trial. He added Fiddick’s claim failed to show the suit had “a real prospect of success” in having the phrases declared defamation.

Fiddick’s claim also said the home “suffered grievous reputational damage.” But Justice Macfarlane said the plantiff supplied no evidence of this.

“Mr. Fiddick gave no evidence, whatsoever, as to the business reputation of Fiddick’s either before or after the (Moores) Expression was published, and certainly no evidence of any actual business losses alleged to be attributable to the Expression.

“Given that nearly three years had passed since the publication of the Expression when that affidavit was sworn, I infer that Fiddick’s is likely to suffer or has suffered no more harm that could be compensated by nominal damages as a result of the Expression assuming that the Expression were proven to have been defamatory.

“For that reason, I find that the public interest in permitting the proceeding to continue is minimal.”
Justice Macfarlane also pointed out the Moores, both former health care workers, had “a specific and urgent interest in advocating for Ms. Dawson’s care in the last months of her life.

“The defendants’ motivations were not malicious,” Justice Macfarlane wrote in his decision. “Rather, the defendants were sincerely driven by their concerns for the welfare of Ms. Dawson specifically, and residents of long-term care facilities and their families generally, at a time when such concerns were at the forefront of public interest.

“The weight to be accorded to the public’s interest in protecting the Expression is significant. It substantially outweighs the public’s interest in allowing the proceeding to continue,” he said in dismissing the lawsuit.

When contacted by The Independent, the Moores said the decision spoke for itself adding it was a “victory for family to advocate for rights in long term care.”

The Moores’ lawyer did not respond to a request for an interview prior to our deadline.

In an online analysis, Stephen Thiele, a partner at Gardiner Roberts LLP writes plaintiffs will generally face a difficult challenge in defending an anti-SLAPP motion where their action is connected to expressions made on a highly significant matter of public interest.

“A plaintiff in responding to an anti-SLAPP motion must ensure that actual evidence of harm is placed before a court,” Thiele said adding corporate plaintiffs in a defamation action are often asked to prove actual losses.

“Without evidence of actual harm, a corporate plaintiff will have difficulty persuading a court that the public interest in allowing its action to continue outweighs the public interest in protecting a defendant’s expression.”

Fiddick may be ordered to pay the Moores’ legal fees. The outcome of a hearing on that was not known at press time.