Cyber Libel Updates

Anti-SLAPP Applications

2025 March 6

Benchwood Builders , Inc. v Prescott, 2025 ONCA 171

In this defamation action, the Ontario Court of Appeal unanimously set aside a lower court ruling which dismissed this lawsuit pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C43.

S. 137.1, which is commonly described as anti-SLAPP legislation, reads in material part as follows:

(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding: and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

Finding the lower court should have dismissed the defendants’ anti-SLAPP application, the Ontario Court of Appeal expressed strong criticism of s. 137.1:

[14] Section 137.1 of the Courts of Justice Act is poorly drafted and confusing. It has led to much litigation, which is ironic since its express purposes are to discourage the use of litigation as a means of unduly limiting expression on matters of public interest and to promote public participation in debates on such matters: ss. 137.1(1)(b)and (c). The Byzantine operation of the section has been criticized. In short, s. 137.1 is in desperate need of a makeover, if not repeal and replacement.

[MLC bolding and underlining for emphasis]

[McConchie Law Corporation Note: This decision is relevant to the interpretation of British Columbia’s anti-SLAPP legislation which substantially mirrors s. 137.1]

Further along in its judgment, the Court of Appeal described the language of section 137.1 as “obtuse and difficult to follow” and characterized s 137.1(4)(a)(ii) as the “most problematic” provision [“the moving party has no valid defence in the proceeding”].

In this lawsuit, the plaintiff builder sued the defendant homeowners over derogatory comments they posted on social media following a renovation project. In finding that the defendant homeowners’ expression did not relate to a matter of public interest, the Court of Appeal stated that “the online reviews posted by the [defendants] reflect no more than an especially bitter private dispute. Consequently, although some members of the public might find it interesting, it is not a matter of interest under s. 137.1. The expression at issue does not engage some broader societal concern … nor … does it fall within the types of expression that were intended to be captured by the provision.” “The Homeowners’ statements concerned a home renovation gone wrong. The postings did not relate to a matter of public interest or to safeguarding the fundamental value of public participation in a democracy, to which personal attacks and defamatory statements are only remotely related. This was a private dispute.” “Statements that are exaggerated, inaccurate or contain deliberate misrepresentations also reduce the public interest in protecting them…This is a case in which the straight logic of a private dispute should apply. Section 137.1 does not apply.”

Noting that free expression is not unlimited, and that one constraint is defamation law, the Court stated that social media is not a defamation-free zone nor do participants consent to the risk of being defamed.

With respect to the provision concerning “no valid defence” [s. 137.1(4)(a)(ii)], the Court of Appeal noted that a plaintiff need only show grounds to believe that the defences do not tend to weigh more in the defamation defendant’s favour. In a defamation action, the phrase “no valid defence” should not be applied literally. “[A] defamatory statement might be true at some level, but the problem is less the truth of the statement than what has sometimes been referred to as the ‘sting’ of the words, evident in the presence of malice.” Further, a literal approach “raises the stakes in an anti-SLAPP motion and encourages the development of an enormous record exploring every possible defence at length. Such a comprehensive approach is completely inconsistent with the intended summary nature of anti-SLAPP motions.” “[T]he preferable approach to take to anti-SLAPP motions in defamation actions, where it is not immediately clear there is no valid defence, is to move smartly to the weighing exercise in s. 137.1(4)(b)…[which]…is intended to be the ‘fundamental crux’ of the court’s analysis.”

Developments before October, 2023
The following paper by Roger D. McConchie was published by LexisNexis in October, 2023 as an International Update in (2023) 25 Media and Arts Law Review (at pages 227-237) which is accessible online.

Canada’s experimental ‘protection of public participation’ statutes: What is really going on?
Roger D McConchie

A ‘Strategic Lawsuit Against Public Participation’ or ‘SLAPP’ suit is ‘a meritless action brought by a powerful, well-heeled plaintiff in an attempt to tie up a critic in legal proceedings, cause them economic harm, and ultimately silence them and anyone else that might otherwise be tempted to criticize that plaintiff’.1

As one Canadian court recently observed:
Litigation can be a potent weapon in the hands of the rich and powerful. The financial and personal costs associated with defending a lawsuit, particularly one brought by a deep-pocketed plaintiff determined to maximize the costs incurred in defending the litigation, can deter even the most committed and outspoken critic.2

The purpose of anti-SLAPP legislation is to deter or prevent individuals or corporations targeted by public criticism from bringing civil defamation lawsuits not for the purpose of vindicating lawful claims, but instead in order to silence, intimidate and punish those who have spoken out.

Quebec is currently the only Canadian province with anti-SLAPP legislation that focuses on intentional abuse of the judicial process by a defamation plaintiff. On 4 June 2009, Quebec’s Code of Civil Procedure was amended to empower a court to declare a lawsuit abusive if it is based on a manifestly ill-founded, frivolous or dilatory legal claim or results from bad faith and in particular if it has the effect of limiting the freedom of expression of others in the context of public debate.3 This statutory remedy requires a judicial finding either that the impugned lawsuit is a clear case of abuse or that there appears to be abuse.4

Canada’s common law provinces and territories have been slower to respond to increased public pressure for anti-SLAPP legislation.

On 3 November 2015, the Protection of Public Participation Act, 2015, SO 2015, c 23 came into force in Ontario, amending that province’s Courts of Justice Act, RSO 1990, c C-43 (‘CJA’) by adding s 137.1 which empowers a single judge sitting in a motions court to summarily dismiss a civil lawsuit if the proceeding ‘arises from expression … that relates to a matter of public interest’.

Although s 137.1 of the CJA is frequently referred to as an anti-SLAPP provision,5 civil lawsuits which cannot reasonably be described as SLAPPs are also subject to summary dismissal. As the Ontario Anti-SLAPP Advisory Panel stated in its report to the Ontario Attorney-General — which preceded and informed the wording of s 137.1 of the CJA — the draconian remedy of summary dismissal is intended to ‘apply to anyone in any civil litigation’ that arises from expression that relates to a matter of public interest.6

Section 137.1 of the CJA provides inter alia:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding: and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

Courts interpreting s 137.1 of the CJA have uniformly ruled that it authorises the dismissal of lawsuits with substantial merit where the defendant has no viable defence.

British Columbia followed Ontario’s lead in 2019 by enacting the Protection of Public Participation Act, SBC 2019, c 3 which came into force on 25 March 2019 (‘PPPA’). The legislation applies to lawsuits commenced on or after 15 May 2018. The PPPA substantially mirrors s 137.1 of the Ontario CJA.

The core provisions of the Ontario and British Columbia statutes create the following multi-faceted, four-step process for determining whether a judge should make a dismissal order on application by a defendant:

Step 1: The defendant has the onus of proving that the impugned lawsuit ‘arises from an expression made by the person that relates to a matter of public interest’;7
Step 2: The plaintiff has the onus of proving there are grounds to believe that the lawsuit has substantial merit;8
Step 3: The plaintiff has the onus of proving there are grounds to believe the defendant has no valid defence;9 and
Step 4: The plaintiff has the onus of proving that the harm likely to be or have been suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.10

Like s 137.1 of the CJA, the PPPA is commonly referred to as anti-SLAPP legislation. However, the PPPA — also like s 137.1 of the CJA — is not limited to oppressive or abusive claims but may apply to a meritorious lawsuit brought in good faith by a plaintiff with legitimate grievances against which the defendant has no viable defence.

In both Ontario and British Columbia, if the court hearing an anti-SLAPP application makes a dismissal order, the defendant is presumptively entitled to costs of the proceeding (including the anti-SLAPP application) on a full indemnity basis.11 In an ordinary civil case, an award of ‘substantial indemnity costs’ is regarded as punitive in nature and would be made only in rare and exceptional cases if a party was guilty of reprehensible, scandalous or outrageous conduct in the litigation.12 A successful respondent to an anti-SLAPP application is presumptively not entitled to costs, even if the court does not dismiss the proceeding.13

In addition, the Ontario and British Columbia statutes each provide that the court may award ‘damages’ to the defendant if it finds the plaintiff brought the proceeding in bad faith or for an improper purpose. This provision makes it clear that defamation lawsuits brought in good faith and for a proper purpose may nevertheless be dismissed by the court and sanctioned by a punitive full indemnity costs award.

In 1704604 Ontario Ltd v Pointes Protection Association (‘Pointes Protection’), the Supreme Court of Canada explained that s 137.1(4)(b) of the CJA provides courts with a ‘robust backstop to protect freedom of expression’ in the form of a mandatory ‘weighing’ exercise that ‘open-endedly engages with the overarching concern that this statute, and anti-SLAPP legislation generally, seek to address by assessing the public interest and public participation implications’.14

In summary, if a judge hearing a s 137.1 of the CJA application determines that the public interest in protecting the defendant’s expression ‘weighs’ 51% on the one hand, and that the public interest in allowing a plaintiff’s lawsuit to proceed ‘weighs’ 49%, on the other hand, the judge must dismiss the plaintiff’s lawsuit and presumptively order the plaintiff to pay the defendant’s legal expenses on a full indemnity basis.

There is a huge and ever-growing body of case-law under the so-called anti-SLAPP legislation in Ontario and British Columbia. As of 31 August 2023, there have been three decisions by the Supreme Court of Canada, almost 50 written rulings of the Ontario Court of Appeal and 11 written rulings of the British Columbia Court of Appeal, as well as many more rulings of lower courts in both provinces.

Initial optimism that the Ontario and British Columbia anti-SLAPP statutes would lead litigants and courts to expeditiously and inexpensively identify and deal with so-called strategic lawsuits was short-lived in each province. Experience has shown that court hearings have been time-consuming, complex and expensive at both the appellate and lower court level.15

BC Attorney-General (now ‘Premier’) David Eby had suggested during debate in the British Columbia legislature that the proposed PPPA (which he told lawmakers substantially mirrored s 137.1 of Ontario’s CJA) would motivate civil litigants to resolve ‘inhibiting’ defamation litigation ‘right off the bat’.16

Each statute provides that the defendant may apply for a dismissal order at any time after the proceeding has commenced.17 On its face, this is manifestly inconsistent with a legislative intent to have matters determined ‘right off the bat’ and appears to invite abuse.

No party may take further steps in the proceeding until the defendant’s application — including any appeal — has been finally resolved.18 The PPPA, unlike s 137.1 of the CJA, specifies that the stay does not apply to an application for an injunction.19

Even before these anti-SLAPP provisions came into force, defamation litigation in over-burdened courts was plagued by delays and a defamation plaintiff’s interest in prompt vindication of his or her reputation was rarely satisfied. Freezing a defamation case by filing an anti-SLAPP application invariably frustrates ‘the just, speedy and inexpensive determination of a proceeding’.20

The first written British Columbia Court ruling under the PPPA is the 22 August 2019 ruling in Galloway v AB (‘Galloway’),21 where the defamation plaintiff (a former university professor and author) obtained an order for disclosure of information and documents before the hearing of the defendants’ PPPA applications. The defendants’ appeal from this ruling was heard by a three-judge panel of the British Columbia Court of Appeal on 7 January 2020 and dismissed in a reserved judgment issued on 8 April 2020.22 An application by the defendants for leave to appeal to the Supreme Court of Canada was denied on 13 August 2020.23

The substantive hearing of the defendants’ PPPA applications for summary dismissal in Galloway eventually took place in BC Supreme Court over 13 days in April, June and July 2021. More than 60 affidavits plus transcripts of cross-examination on affidavits were involved. The plaintiff Galloway himself was cross-examined before the hearing on eight occasions. The bound ‘application record’ provided to the Court ran to almost 7,000 pages. More than 7,600 pages of legal authorities were provided to the judge. The reserved Reasons for Judgment released 2 December 2021 consisted of 792 paragraphs plus 12 appendices.24

The defendants’ appeals as of right to the British Columbia Court of Appeal in Galloway were heard over 5 days in May 2023. Judgment was still reserved as of 31 August 2023. An application for leave to appeal to the Supreme Court of Canada may be made by whoever loses.25 Until all appeals are resolved, the underlying defamation lawsuit in Galloway remains frozen.26

In Ontario, the experience with delay and expense has been similar.

In Park Lawn Corporation v Kahu Capital Partners Ltd (‘Park Lawn’), Pepall JA endorsed lower court criticism27 that applications under s 137.1 of the CJA ‘tend to be complex and expensive proceedings’ and although ‘they are not intended to involve a deep dive into the merits or even a detailed review akin to a motion for summary judgment, they usually do represent virtually the entire trial being played out in advance … Despite the Legislature’s intention to create a preliminary hurdle, the process advanced in practice is more like a marathon.’

Pepall JA also agreed in Park Lawn that the punitive costs provisions of s 137.1 of the CJA may incentivise parties to bring an anti-SLAPP motion (despite the underlying claim not being a SLAPP) because even if that motion is unsuccessful, the losing moving party often will not have to pay any costs. Similarly, BW Miller JA stated in The Catalyst Capital Group Inc v West Face Capital Inc: ‘The proceeding is intended to be an expeditious means of weeding out a particular species of abusive claims. Too often it has been misused as a costly and time-consuming surrogate for a summary judgment motion.’28 In the same case, BW Miller JA went on to sustain the motion judge’s decision to order the plaintiff to pay costs to four successful applicants on the order of $650,000; $1,500,000; $480,000; and $525,000. The total costs awarded — $3,155,000 — exceeds every defamation damage award (except one) ever made by a Canadian court.29

The extraordinary delays, disproportionate expense and frequent dismissal of meritorious claims brought in good faith might be explained by counterproductive, complex and ambiguous provisions in the Ontario and British Columbia legislation.

The Supreme Court of Canada first considered s 137.1 of the CJA in Bent v Platnick (‘Bent’)30 and Pointes Protection.

In Bent, the plaintiff Platnick sued the defendant lawyer Bent and her law firm for defamation seeking damages over $16.3 million over an email sent to a Listserv. The Supreme Court (5–4) affirmed the decision of the Ontario Court of Appeal which set aside the motion judge’s order dismissing the action and directing that the defamation claims against the lawyer be determined on their merits.

Pointes Protection involved a claim for breach of contract by a subdivision developer. The plaintiff 1704604 Ontario Ltd alleged that the defendant Pointes, a non-profit organisation, breached an agreement limiting its conduct regarding approvals sought by the developer from relevant authorities. The supposed breach consisted of testimony by Pointes at a regulatory hearing to the effect that the developer’s proposal would result in ecological and environmental damage. The Supreme Court of Canada unanimously sustained the Ontario Court of Appeal’s decision that the lawsuit should be dismissed as a SLAPP (reversing the motion judge’s decision that the lawsuit should be allowed to proceed).

The Supreme Court of Canada’s only decision to date concerning British Columbia’s anti-SLAPP statute is Hansman v Neufeld (‘Neufeld’),31 which reversed a decision of the BC Court of Appeal reviving a defamation action which had been dismissed as a SLAPP by a judge in chambers.32 The plaintiff Neufeld’s lawsuit alleged he was defamed by the defendant’s vigorous criticism of Neufeld’s online opposition to a BC government initiative regarding instruction in schools about gender identity and sexual orientation. In Neufeld, the Supreme Court of Canada ruled (6–1) that its interpretation of s 137.1 of the CJA in Pointes Protection and Bent applies with equal force to the PPPA, given the substantial similarity between the legislation.33

The basic principles which emerge from Bent, Pointes Protection and Neufeld and other appellate authorities may be summarised as follows:

In Step 1 of s 137.1 of the CJA and the PPPA analysis, ‘expression’ is to be defined expansively. The quality of the expression is irrelevant at this stage.34 The phrase ‘relates to a matter of public interest’ should be given a broad and liberal interpretation. The ‘public interest’ has the same meaning in s 137.1 of the CJA and the PPPA as it does in the common law defences of fair comment35 and responsible communication. ‘Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about.’36

In Step 2 and Step 3 of s 137.1 of the CJA and the PPPA analysis, the words ‘grounds to believe’ in the merits-based hurdle requires that there be a basis in the record and law for finding that the underlying proceeding has substantial merit and that there is no valid defence.37 It means something more than mere suspicion, but less than proof on a balance of probabilities.38

To have ‘substantial merit’, the proceeding must be legally tenable and supported by evidence that is reasonably capable of belief such that it can be said to have a real prospect of success; not a demonstrated likelihood of success but more than some chance of success. ‘At this stage, the motions judge does not perform ultimate assessments of credibility and undertake a deep dive into the evidence.’39

The word ‘no’ in the phrase ‘no valid defence’ is absolute. If there is any defence that is valid, the claim should be dismissed. The plaintiff must show there are grounds to believe that the defences put in play by the defendant have no real prospect of success.

Even if the plaintiff shows that the lawsuit has substantial merit and that there is no valid defence, it remains vulnerable to summary dismissal as a result of the public interest weighing exercise in Step 4 of s 137.1 of the CJA and the PPPA analysis (the aforesaid ‘robust backstop’).40 Cote J, writing the judgment of the Supreme Court of Canada in Pointes Protection, characterised the final weighing exercise as the ‘crux or core’ of s 137.1 of the CJA. In this weighing exercise, Courts are required to scrutinise ‘what is really going on in the particular case before them’ when weighing the public interest.41

As a prerequisite to the ‘weighing exercise’, the statutes require (i) the existence of harm; and (ii) causation — the harm was suffered as a result of the defendant’s expression.

Either monetary harm or non-monetary harm can be relevant, and harm is not synonymous with the damages alleged. There is no threshold requirement for the harm to be worthy of consideration: the magnitude of the harm simply adds weight to one side of the weighing exercise. The plaintiff need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link.42

The harm and the corresponding public interest in permitting the proceeding to continue must be weighed against the public interest in protecting the expression. In this context, the term ‘public interest’ is used differently and not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant. The weighing exercise can be informed by considerations underlying s 2(b) of the Charter of Rights and Freedoms, such as the search for truth, participation in political decision making, and diversity in forms of self-fulfilment and human flourishing: the closer the expression is to any of these core values, the greater the public interest in protecting it.43

Additional factors may include the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the moving party’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s 15 of the Charter or human rights legislation. This stage is not simply an inquiry into the hallmarks of a SLAPP.44

The order in which a judge chooses to address each of the elements in the analysis is at the discretion of the court, but the court must dismiss the proceeding if the plaintiff does not meet its onus as to any element. The Supreme Court of Canada recently ruled in Neufeld, that there is no obligation on a judge to decide Steps 2, 3 and 4 in any particular order. What is clear in the jurisprudence is that a judge must dismiss the lawsuit if the plaintiff fails at Step 4, even if he or she succeeds at Steps 2 and 3.
Whatever clarity these principles may bring to the motions court judge, they do not necessarily promote a speedy, expeditious or inexpensive resolution of dismissal applications, nor will they moderate the prejudice to the plaintiff caused by delays in vindicating his or her reputation.

Discussing the task of ‘weighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim’, Adair J commented in Galloway that ‘weighing … is substantively different than ‘balancing’ in the sense that one consideration must outweigh the other’. On this issue, she relied on Pointes Protection (at [65]–[66]).

The ‘weighing’ analysis in Galloway is recorded in [627]–[787], where Adair J stated that the inevitable result of the weighing process is that, on occasion, plaintiffs will be prevented from vindicating their rights through otherwise valid and legitimate lawsuits. Adair J did not carry out a weighing exercise for those expressions where she concluded that Galloway had not met his burden of proof under Step 2 or Step 3 of the PPPA. Applying Bent, Adair J noted that ‘harm’ is not limited to monetary harm and that reputational harm is ‘eminently relevant’ to the harm inquiry as ‘reputation is one of the most valuable assets a person … can possess’. Further, intangible and subject elements such as humiliation, shame, disgrace and embarrassment, negative effects on mental-health and family relationships also factor into the assessment of harm.

It seems clear from the lengthy discussion of the evidence in Galloway that what constitutes an unnecessary ‘deep dive’ into the evidence is in the eye of the motions judge. Adair J concluded that the reputational harm sustained by Galloway is serious and sustained and that litigation ‘appears to be the only available avenue for possible rehabilitation of Galloway’s reputation’.

The difficulty of conducting the ‘weighing’ exercise is discussed in the
3 August 2023 decision of the Ontario Court of Appeal in Mondal v Kirkconnell:

[31] Section 137.1 is not intended to discourage or preclude legitimate defamation actions. But the paradigm SLAPP case — a meritless action brought by a powerful, well-heeled plaintiff in an attempt to tie up a critic in legal proceedings, cause them economic harm, and ultimately silence them and anyone else that might otherwise be tempted to criticize that plaintiff — is as easy to recognize as it is rare.
[32] Where an action has some merit, the decision whether it should be permitted to proceed depends on a weighing process that seldom admits of obvious answers.45

The phrase ‘seldom admits of obvious answers’ may be an understatement. This is unfortunate. Even the Report of the Anti-SLAPP Advisory Panel which preceded the enactment of s 137.1 of the Ontario CJA recommended that the ‘test for the for identifying litigation that will unduly hamper publication participation for which the protection of the statute may be invoked’ must make it ‘easy to recognize, both for the parties who are considering launching, or who are faced with defending such a suit (i.e. potential plaintiffs and actual defendants), and for the judges who are called on to decide if the statutory remedy applies’.

Ironically, the Ontario Anti-SLAPP Advisory Panel also warned that ‘a focus upon the presence or absence of bad faith or an improper motive, in addition to being unnecessary, is not well-suited to expedited adjudication’.46 Perhaps Quebec’s approach, which does focus on abuse, bad faith and improper motive, is a better model and could inform useful amendments to the Ontario and British Columbia statutes.

FOOTNOTES

1 Mondal v Kirkconnell, 2023 ONCA 523, [31] (Huscroft JA) (‘Mondal’).
2 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685, [2] (Doherty JA).
3 Articles 54.1–54.3 were inserted in the Code of Civil Procedure by An Act to amend the Code of Civil Procedure to prevent abuse of the courts and promote respect for freedom of expression and citizen participation in public debates, SQ 2009, c 12 — currently art 51 of the new Code of Civil Procedure, CQLR, c C-25.01; Cartier Avenue Developments Inc v Dalla Riva, 2012 QCCA 431; Bellemare v Robitaille, 2019 QCCQ 1046, citing Theriault-Martel v Savoie, 2013 QCCS 4280, leave to appeal denied, 2013 QCCA 1856.
4 In Carle v CBC/Radio-Canada, 2021 QCCS 486, the Quebec Superior Court dismissed an action that was aimed directly at avoiding a public debate by a plaintiff who essentially wishes to silence the defendants. The Court (at [62]) listed factors supporting a finding of misuse of judicial proceedings (indicators of a SLAPP) as follows: i) does the lawsuit have the effect of limiting the freedom of expression of others in the context of public debate?;
ii) are the grounds for the lawsuit non-existent or unclear?; iii) is the amount claimed justified on the basis of the allegations in the pleadings?; iv) does the choice of defendants reveal an intention to intimidate?; (v) does the formal notice sent prior to the filing of the lawsuit reveal an intention to silence the contrary opinion?; vi) does the time and place chosen to serve the defamation suit on the defendant reveal an intention to intimidate?; (vii) does the plaintiff’s procedural conduct in the context of the case reveal an intention to intimidate?; and (viii) does it reveal an intention to financially exhaust the defendant?
5 2110120 Ontario Inc v Buttar, 2023 ONCA 539, [1].
6 Anti-SLAPP Advisory Panel Report to the Attorney General (Report, 28 October 2010) [62]. The Advisory Panel specifically recommended that the acronym ‘SLAPP’ not appear anywhere in the Ontario statute.
7 Ontario Courts of Justice Act, RSO 1990, c C-43, s 137.1(3) (‘CJA’) provides: ‘On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.’
BC Protection of Public Participation Act, SBC 2019, c 3, s 4(1) (‘PPPA’) provides: ‘In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that (a) the proceeding arises from an expression made by the applicant, and (b) the expression relates to a matter of public interest.’
8 The common law position is described in Grant v Torstar, 2009 SCC 61, where the Supreme Court of Canada, speaking about the plaintiff’s onus of proof, held at [28]–[29], that a plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed.
9 Cf the common law position described in WIC Radio Ltd v Simpson, 2008 SCC 40, where the defendants and media intervenors unsuccessfully sought to persuade the Supreme Court of Canada that the onus of proof should be shifted to the plaintiff to demonstrate on a balance of probabilities that the new, objective honest belief test was not satisfied, or that that defamatory expression was a statement of fact as opposed to a comment, or that the subjective matter of the comment was not a matter of public interest. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.
10 Ontario CJA (n 7) s 137.1; BC PPPA (n 7) s 4(2) provides: ‘If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1), the court must make a dismissal order unless the respondent satisfies the court that (a) there are grounds to believe that (i) the proceeding has substantial merit, and (ii) the applicant has no valid defence in the proceeding, and (b) the harm like to have been or to be suffered by the respondent as a result of the applicant’s expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.’
11 Ontario CJA (n 7) s 137.1 (7): ‘If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.’
BC PPPA (n 7) s 7(1): ‘If the court makes a dismissal order under section 4, the applicant is entitled to costs on the application and in the proceeding, assessed as costs on a full indemnity basis unless the court considers that assessment in appropriate in the circumstances.’
12 Young v Young [1993] 4 SCR 3 (SCC).
13 Ontario CJA (n 7) s 137.1(8); BC PPPA (n 7) s 7(2).
14 2020 SCC 22, [53], [62] (‘Pointes Protection’).
15 As of 9 August 2023, the Ontario Court of Appeal had issued 46 written rulings relating to the CJA (n 7) s 137.1.
16 Hansard, 14 February 2019, Morning Session (Hon David Eby).
17 Ontario CJA (n 7) s 137.2; BC PPPA (n 7) s 9(2).
18 Ontario CJA (n 7) s 137.1(5); BC PPPA (n 7) s 5(1).
19 BC PPPA (n 7) s 5(2).
20 Supreme Court Civil Rules, BC Reg 176/2023, r 1-3 — Object of Rules.
21 21 2019 BCSC 1417.
22 Galloway v AB, 2020 BCCA 106.
23 AB v Galloway, 2020 CanLII 55862 (SCC).
24 Galloway v AB, 2021 BCSC 2344.
25 To date, there have been 11 BC Court of Appeal decisions relating to the BC PPPA: Galloway v AB, 2019 BCCA 385; Galloway v AB, 2020 BCCA 106; Hobbs v Warner, 2021 BCCA 290; Neufeld v Hansman, 2021 BCCA 222; Proctorio Inc v Linkletter, 2022 BCCA 150; Galloway v Rooney, 2022 BCCA 243; Mawhinney v Steward, 2023 BCCA 277; Linkletter v Proctorio Inc, 2022 BCCA 313; Orlando v Boylan, 2023 BCCA 51; Linkletter v Proctorio Inc, 2023 BCCA 160; Deep Water Recovery Ltd v Reynolds, 2023 BCCA 204.
26 Prior to the substantive disposition of the anti-SLAPP applications by Adair J on 2 December 2012, the lawsuit had spawned multiple court rulings relating to the multiple anti-SLAPP applications: Galloway v AB, 2019 BCSC 395; Galloway v AB, 2019 BCSC 1417; Galloway v AB, 2021 BCSC 320; Galloway v AB, 2021 BCSC 646; Galloway v AB, 2019 BCCA 385; Galloway v AB, 2020 BCCA 106; Galloway v. Rooney, 2022 BCCA 243; AB v Galloway, 2020 CanLII 55862 (SCC).
27 2023 ONCA 129. The comments of Ontario Superior Court Justice Myers in Tamming v Paterson, 2021 ONSC 8306, [7]–[9].
28 2023 ONCA 381 (‘Catalyst Capital Group’).
29 The only defamation damages award to exceed this costs award was made in Clancy v Farid, 2023 ONSC 2750, where the Ontario Superior Court assessed defamation damages aggregating $4,773,000 in a case involving claims by 53 plaintiffs against one individual defendant over a targeted campaign involving tens of thousands of postings on the internet.
30 2020 SCC 23 (‘Bent’).
31 2023 SCC 14 (‘Neufeld’).
32 Neufeld vs Hansman, 2021 BCCA 222.
33 At [52].
34 Mondal (n 1) [40], citing Sokoloff v Tru-Path Occupational Therapy Services Ltd, 2020 ONCA 730, [24]–[25].
35 Pointes Protection (n 14) [27]; Grant v Torstar Corporation, 2009 SCC 61, [101]–[102].
36 Pointes Protection (n 14) [30]; Safavi-Naini v Rubin Thomlinson LLP, 2023 ONCA 86, [21], citing Sokoloff v Tru-Path Occupational Therapy Services Ltd, 2020 ONCA 730, [20].
37 Pointes Protection (n 14) [39]–[40], [46], [59]; Bent (n 30) [103].
38 Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [114] cited with approval in Pointes Protection (n 14) [40].
39 Mondal (n 1) [50]–[51], citing Bent (n 30) [103]; Subway Franchise Systems of Canada v Canadian Broadcasting Corporation, 2021 ONCA 26, [66]–[68], leave to appeal refused, [2021] SCCA No 87.
40 Neufeld (n 31) [58], citing Pointes Protection (n 14) [53].
41 Pointes Protection (n 14) [81], cited in Catalyst Capital Group (n 28) by BW Miller JA at [33].
42 Neufeld (n 31) [67], citing Pointes Protection (n 14) [71]; Bent (n 30) [154].
43 Pointes Protection (n 14) [74]–[77].
44 Ibid [79].
45 Mondal (n 1) [31]–[32] (Huscroft JA) (emphasis added).
46 Anti-SLAPP Advisory Panel Report to the Attorney General (n 6) [35]. The Advisory Panel also recommended against the use of the acronym ‘SLAPP’ in the new legislation.

Click on a Case Name for full text (links off site).

2025 March 6

Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171

In this defamation action, the Ontario Court of Appeal unanimously set aside a lower court ruling which dismissed this lawsuit pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C43.

S. 137.1, which is commonly described as anti-SLAPP legislation, reads in material part as follows:

(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding: and

Finding the lower court should have dismissed the defendants’ anti-SLAPP application, the Ontario Court of Appeal expressed strong criticism of s. 137.1:

[MLC bolding and underlining for emphasis]

[McConchie Law Corporation Note: This decision is relevant to the interpretation of British Columbia’s anti-SLAPP legislation which substantially mirrors s. 137.1]

Canadian Internet Defamation Rulings

Anti-SLAPP Applications

Click on a Case Name for full text (links off site).

2025 March 6

Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171

Sections