Anti-SLAPP Applications
Cases published to January 18, 2021
Introduction
“SLAPP” is an acronym for “strategic litigation against public participation.”
The Supreme Court of Canada explained in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at paragraph 2 that “SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.”
The decision of the Supreme Court of Canada in Pointes Protection and its companion decision in Bent v Platnick, 2020 SCC 23 ruled on the interpretation and application of Ontario’s “anti-SLAPP” legislation which came into force in November, 2015 – the Protection of Public Participation Act, 2015, S.O. 2015, c. 23. That statute added new ss. 137.1 to 137.5 to Ontario’s Courts of Justice Act, RSO 1990, c. C-43.
British Columbia copied the Ontario legislation and adopted the Protection of Public Participation Act, SBC 2019, c. 3 which applies to legal proceedings commenced on or after May 15, 2018.
Quebec is the only other Canadian jurisdiction which has enacted anti-SLAPP legislation. That is embedded in articles 51-54 of the Code of Civil Procedure, CQLR c C-25.
Ontario and British Columbia Anti-SLAPP Provisions: The Basics
In Ontario and British Columbia, a defendant may apply to a judge for an order dismissing a legal proceeding that arises from an expression made by the defendant that relates to a matter of public interest.
“Expression” is any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.
“Public interest” is given a broad and liberal interpretation.
In these circumstances, the judge must grant the defence application and dismiss the legal proceeding unless the plaintiff satisfies the judge that,
- there are grounds to believe that,
- the proceeding has substantial merit, and
- the moving party has no valid defence in the proceeding; and
- 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.”
Grounds to Believe Substantial Merit
Any basis in the record and the law will be sufficient. A basis will exist if there is a single basis in the record and the law to support a finding of substantial merit and the absence of a valid defence. The basis must be legally tenable and reasonably capable of belief. Bent, para. 88.
“Substantial merit” means a real prospect of success; a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. Bent, para. 90.
Evidence of actual reputational damage is not necessary at this stage, given that actual harm to reputation is not required to establish defamation. Bent, para. 96.
Grounds to Believe No Valid Defence
The plaintiff is required to show that there is a basis in the record and the law — taking into account the stage of the proceeding — to support a finding that the defences the defendant has put in play do not tend to weigh more in the defendant’s favour. Bent, paras. 103, 105.
Weighing the Public Interest – The crux of the Analysis
The magnitude of reputational harm is important in assessing whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. General damages in a nominal sense will ordinarily not be sufficient. Bent, para. 144.
Neither a definitive determination of harm or causation nor a fully developed damages brief is required. The plaintiff must simply provide evidence for the court to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. Bent, paras. 145, 154.
In addition to the monetary harm alleged by a plaintiff, a court will also consider the reputational harm to the plaintiff, even if it is not quantifiable by the time of the application. Therefore, the harm need not be monetized, as both monetary and non-monetary harm can be relevant to demonstrating the existence of harm. Bent, paras. 148, 149.
Once the existence of harm is established, the next question depends on whether that harm was suffered as a result of the defendant’s expression. Causation is not an all-or-nothing proposition. Even if the causal link between the defamatory statement and some elements of the harm suffered by the plaintiff is tenuous, a plaintiff will satisfy their burden if they establish a sufficient causal link between the publication and some elements of the harm suffered by the plaintiff and the harm is sufficiently serious to establish a weighty public interest in permitting the proceeding to continue. Bent, paras. 151, 159.
The public interest in protecting expression can be determined by reference to the core values that underlie s. 2(b) of the Canadian 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. Bent, para. 163.
Consideration must be given to the “chilling effect on future expression” and the “broader or collateral effects on other expressions on matters of public interest”. Bent, para. 165.
Defamatory statements are very tenuously related to the core values which underlie s. 2(b). There will be less of a public interest in protecting a statement that contains gratuitous personal attacks and the motivation behind the expression will be relevant to the inquiry. Bent, para. 163.
In determining the public interest in protecting the expression, the court will consider whether the expression consisted of a personal attack against the plaintiff which cast doubt on his or her professional competence, integrity, and reputation, and whether the defendant ever reached out to the plaintiff to confront the plaintiff or to investigate the allegations against the plaintiff. Bent, para. 164.
The court may consider whether permitting the plaintiff’s defamation claim to proceed would deter others from unnecessarily singling out an individual in a way that is extraneous or peripheral to the public interest, deter others from making defamatory remarks against an individual without first substantiating, or attempting to substantiate, the veracity of their allegations, or incentivize them to act with reasonable due diligence and to tailor their expression so as to avoid needlessly defaming an individual who depends on their reputation for their livelihood. Bent, para. 167.
The court will seek an appropriate balance between freedom of expression and reputational considerations, which the Supreme Court of Canada has historically strived to optimize: good reputation reflects the innate dignity of the individual, a concept which underlies all the Charter rights. The protection of reputation must be carefully balanced against the equally important right of freedom of expression. Bent, para. 168.
Under this legislation, courts have the power to scrutinize what is really going on in the particular case before them and determine whether it comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage. The court may ask whether it is a case in which one party is vindictively or strategically silencing another party, or a case in which one party is attempting to remedy seemingly legitimate harm suffered as a result of a defamatory communication. Bent, para. 172.
Click on a Case Name for full text (links off site).
2021 November 17
The Ontario Court of Appeal unanimously dismissed an appeal by the defendants from a lower court decision rejecting their anti-SLAPP motion pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). The Court of Appeal held that the allegedly defamatory expression did not relate to a matter of public interest because it was “really about a private commercial dispute between the [defendants] and the [plaintiffs].” “The [defendants] were pressuring the respondents to pay monies they claim are owed by their mutual clients” when the individual defendant stood on the street outside the plaintiffs’ office on two occasions holding signs making the allegedly defamatory statements. In these circumstances, the anti-SLAPP application “failed at the public interest threshold” and “it was not necessary to proceed to the merits based hurdle under s. 137.1(4)(a) or the public interest weighing exercise under s. 137.4(b).”
In the circumstances of this case, the Court of Appeal also did not disturb the motion judge’s award of partial indemnity costs to be paid by the defendants to the plaintiffs. The Appeal Court held that dismissal of the defendants’ ant-SLAPP application at the 137.1(3) public interest threshold is a relevant consideration in determining whether to award costs to a plaintiff. “There will be cases in which the assertion of the public interest is wholly lacking in merit, but there will also be cases in which the moving party may have an arguable basis to assert that their expression relates to a matter of public interest. The award of costs [to the plaintiff] may be easier to justify in the former than the latter cases, but every case is different and the law will no doubt continue to develop in this regard.” S. 137.1(8) of the CJA provides that if a judge does not dismiss a proceeding under the anti-SLAPP provision, the successful plaintiff is not entitled to costs unless the judge determines that such an award is appropriate in the circumstances. In this case, the motion judge relied on Veneruzzo v Storey, 2018 ONCA 688 at paragraph 39 where Doherty J.A. stated: “[T]he purpose underlying the costs provisions in s. 137.1 disappears when the lawsuit has none of the characteristics of a SLAPP, and the impugned expression is unrelated to a matter of public interest.”
2021 January 18
The Ontario Court of Appeal unanimously ruled that Subway’s defamation claims for damages arising from a CBC Marketplace television program, a related article on the CBC website and comments in Twitter posts should be allowed to proceed to trial. Setting aside a motions court judgment dismissing those claims under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), the Court of Appeal concluded that Subway had demonstrated on a balance of probabilities that there are grounds to believe CBC has no valid defence. Subway also established that the harm likely to be or have been suffered by Subway as a result of the CBC’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. The Attorney General of Ontario, in discussions preceding the enactment of the anti-SLAPP provisions, had stated that “reputation is one of the most valuable assets a person or a business can possess” (Legislative Assembly of Ontario (2014), at p. 171). “Neither reputational harm nor monetary harm is more important than the other. Nor is harm synonymous with the damages alleged. The [anti-SLAPP provision] does not depend on a particular kind of harm, but expressly refers only to harm in general”. “A plaintiff must simply ‘provide evidence for the motion judge to drawn an inference of likelihood in respect of the existence of the harm and the relevant causal link.”
The Court of Appeal concluded that the motions judge failed to appreciate Subway’s reputational harm, the likelihood of serious financial harm, and that this proceeding does not bear the indicia of a SLAPP suit. The motions judge erred in law by engaging in an assessment of damages as though he were the trial judge, in failing to appreciate that damage assessment may be an ongoing process, and in failing to appropriately weigh the public interest. “Allowing this action to proceed to a determination on the merits gives appropriate weight to the public interest in seeing harm arising from defamatory statements remedied and the public interest in protecting the type of expression in which CBC engaged. At the heart of the action is the CBC’s ability to rely on the defence of responsible communication. The continuation of the action should not deter others from expression, but should deter others from making remarks without first taking reasonable steps of substantiate the veracity of those remarks, particularly where, as in this case, there is no urgency to the dissemination of that information”.
