Canada: Ontario Court Of Appeal Provides Guidance On The Interpretation Of Anti-SLAPP Legislation

In six decisions released simultaneously, the Court of Appeal for the first time interprets Ontario's Anti-SLAPP legislation. (s. 137.1 of the Courts of Justice Act). While the analysis is applied to the specific issues raised in the appeals, the decision in 1704604 Ontario Ltd. v. Pointes Protection Association, penned by Justice Doherty, provides the Court's interpretation of and guidance on s. 137.1, under which a defendant can bring a motion, even before they have filed a defence, to dismiss a purported defamation proceeding.

The Court notes in its decision that the purpose of the Anti-SLAPP legislation is "crystal clear": expression on matters of public interest is to be encouraged, and litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage.

The first requirement is that the expression made by the person relates to "a matter of public interest". The Court of Appeal provides the following guidance with respect to the meaning of a "matter of public interest":

  1. When deciding whether an expression relates to a matter of "public interest", the motion judge is to apply the legal principles enunciated in Grant v. Torstar Corp. to the relevant circumstances of the case.
  2. "Public interest" does not turn on the size of the audience, particularly in today's world: communications on private matters can be spread to large audiences, just as statements between two people can relate to matters with a strong public interest component.
  3. The concept of "public interest" is a broad one that does not take into account the merits or matter of the expression, nor the motive of the author - even if the language used is harmful to the public interest – such as a statement that is demonstrably false – it can nonetheless be an expression relating to a matter of public interest.

Once the defendant has established the communication related to a matter of public interest, the burden shifts to the plaintiff to demonstrate there are "grounds to believe" that:

  1. the proceeding has substantial merit; and
  2. the moving party has no valid defence in the proceeding
  • "Grounds to believe" must be reasonable grounds: The Court notes that while the subsection of the legislation does not explicitly mention "reasonable" grounds to believe, the fact that the grounds must be reasonably is implicit. This is meant to provide a judicial screening or "triage device" designed to eliminate unmeritorious claims at an early stage. But the Court cautioned that motion judges should not allow Anti-SLAPP motions to slide into de facto summary judgment motions.
  • "Substantial Merit": The word "substantial" signals that the plaintiff must do more than simply show there is some chance of success: the claim must be shown to be legally tenable and supported by evidence, which could lead a reasonable trier of fact to conclude the claim has a real chance of success.
  • "No valid defence": The Court clarifies that the section contemplates an evidentiary burden on the defendant to advance any proposed valid defence, valid meaning "successful", in the pleadings or motion material. If the plaintiff cannot meet its burden under either the merit requirement or the "no valid defence" requirement, their claim will be dismissed – the motion judge has no obligation to address both.

The heart of Ontario's Anti-SLAPP legislation: On a motion, the judge must consider whether the harm suffered as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweigh the public interest in protecting that expression, a section which Justice Doherty calls "the heart of Ontario's Anti-SLAPP legislation". The plaintiff at this stage must both quantify the damages, and provide material to establish the causal link between the expression and the damages claimed. The Court notes that unlike the "matter of public interest" inquiry at the first stage, both the quality of the expression and the motivation of the speaker play an important role at this stage in measuring the extent to which there is a public interest in protecting that expression. This evaluation is not formulaic or mathematical, but rather is a qualitative and to some extent, subjective assessment.

Anti-SLAPP legislation is most commonly associated with defamation cases, but the Court of Appeal notes that there are other types of cases, such as where claims turn on the interpretation of language in a contract (as was the case in Pointes Protection), which do not fit neatly into the s. 137.1 analysis. For example, the Court notes there would be little public interest in protecting a defendant's right to make certain statements if the defendant bargained those rights away in a contract, and the merits analysis would focus largely on the allegation that the defendant breached the contract.

The clarification of the scope of Anti-SLAPP legislation by Ontario's highest court is an important step in triaging unmeritorious defamation cases moving forward.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Aird & Berlis LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Aird & Berlis LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions