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OTTAWA – On Friday, the Canadian Constitution Foundation (CCF) filed materials with the Supreme Court of Canada to intervene in a case that could decide whether homeowners have the right to express themselves by warning the public about contractors using online reviews.

In Cynthia Prescott, et al. v. Benchwood Builders Inc., et al., the Supreme Court will consider whether a renovation company can sue in defamation Ontario homeowners who posted negative comments about the company on social media after a dispute over renovation work. 

After the homeowners posted their online reviews, the renovation company, Benchwood Builders, brought a defamation lawsuit and sought an injunction to prevent the couple from making further public comments about the plaintiffs. While a lower court dismissed the builders’ lawsuit as a strategic lawsuit against public participation (a SLAAP) under section 137.1 of the Courts of Justice Act, the Ontario Court of Appeal overturned that decision and allowed the lawsuit against the homeowners to proceed, finding, among other things, that online reviews are not automatically matters of public interest.

At the hearing on May 15, the Supreme Court will consider the scope of the “public interest” factor in the context of online expression and how to balance freedom of expression with protection of reputation. The CCF will make two arguments. First, the CCF will argue that the Court of Appeal should consider the context of social media used in the marketplace as part of the “public interest” assessment, as not all social media is created equal. Second, the Court should consider the power imbalance between homeowners and contractors who can put a lien on a home if the homeowner writes good faith reviews of bad services.

Christine Van Geyn, Interim Executive Director for the CCF, said that narrowing the scope of public interest risks weakening protections for everyday expression. 

“Anti-SLAPP laws are meant to ensure that people can speak freely on contentious matters without intimidation,” said Van Geyn. “If courts exclude consumer reviews from that protection, it will make it easier for legal threats to silence ordinary Canadians and discourage people from sharing their honest experiences.”

Josh Dehaas, Interim Litigation Director for the CCF, said the Court must treat online platforms as a sphere of public discussion in modern life.

“Today, much of our public square exists online, where consumers share information and warn each other about negative experiences,” said Dehaas. “Dismissing this kind of expression as a mere private dispute fails to reflect how people actually communicate in the digital age and risks leaving important speech unprotected.”

The CCF is represented in this intervention by Morgan L. Camley K.C., Meredith Bacal and Jasmine Der of Dentons Canada LLP.