Real Estate Agent's Defamation Claim Survives Anti-SLAPP Motion

• Published date: 25 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Disclosure & Electronic Discovery & Privilege, Libel & Defamation, Real Estate
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

In Niu v. Cao, 2020 ONSC 5407 (CanLII), an Ontario real estate agent was permitted to proceed with a defamation claim stemming from online postings maligning her professional reputation. The decision was released on the same day as two decisions by the Supreme Court of Canada involving Ontario's anti-SLAPP legislation which addressed the underlying legal test at issue in the case: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (CanLII); Bent v. Platnick 2020 SCC 23 (CanLII).

The Plaintiff, Niu, was a well-known, Chinese-speaking, real estate agent in Oakville, Ontario, with a base of Chinese-speaking clientele. The Defendant, Cao, had used Niu's services to find and purchase a home. A sore point arose between Cao and Niu over whether wire shelving in the home ought to have been included. Niu discounted her commission and offered to assist Cao with the installation of new wire shelving. Cao sold the home some four years later.

After moving, Cao published two online articles on her "WeChat" account in the Chinese language (entitled "Joys and Sorrows of Life in Canada"). Cao's WeChat Comments were posted in a WeChat group consisting of approximately 500 members in Oakville and other cities across Ontario and other Canadian provinces.

WeChat is a popular instant communication app in China and is used around the world to connect with other Chinese users. WeChat also contains member groups that serve as a discussion board to share personal experiences living in Canada. As a business tool WeChat is used as a referral source where people can make recommendations for services, including real estate agents.

Cao's first article related primarily to her home-buying experience with Niu, as well as repair and renovation issues related to the property after the purchase. The second article related primarily to her sale and moving experiences, although there were some references to Cao's prior experience purchasing the property. After being published, the two articles were shared in other WeChat groups beyond the initial group. Further, in the WeChat Comments, Cao encouraged readers to share the articles. While Niu was not identified by name in the first two articles, she was specifically identified and discussed in the chat group.

The two articles remained on Cao's account for six months during which time she defended the truth of her statements in response to Niu's threats of litigation. The apology Cao eventually posted at the time of deleting the articles was insufficient to dissuade Niu from seeking damages for defamation.

In August, 2020, Cao brought a motion before Mr. Justice Glustein of the Ontario Superior Court of Justice to dismiss Niu's lawsuit under Ontario's anti-SLAPP legislation in 137.1 of the Courts of Justice Act, which provides that a defamation lawsuit shall be...