Canada: Anti-SLAPP Legislation Tested By Courts And The Ontario Municipal Board

Last Updated: November 17 2016
Article by Paula Boutis

Since the Ontario government introduced the Protection of Pubic Participation Act, there have been several reported decisions. The anti-SLAPP (strategic law suit against public participation) legislation is already creating an interesting body of law in the courts – and at least one tribunal – considering when they should intervene to end lawsuits against persons involved in the expression of public interest matters.

Under the legislation, the moving party must establish that a suit arises from an expression that relates to a matter of public interest. If the moving party is successful, the burden then shifts to the responding party to show that the suit has substantial merit, there is no valid defence, and the harm suffered or likely to be suffered by the plaintiff/respondent is "sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression." If the respondent is able to meet this test, then the court must refuse to dismiss the respondent's case.

The rules regarding costs are also different under the anti-SLAPP legislation. If a moving party is successful in having a claim against it dismissed, the court, unless it determines it is not appropriate, is to order costs in favour of the moving party on a full indemnity basis. Usually a successful party is entitled only to partial indemnity of its legal costs.

Also, the court need not award costs against the moving party if it loses. In at least two cases where the moving parties have lost, the court has declined to order costs. In one case, the court declined to order costs against the moving party on the basis that the plaintiff's claim for damages was "weak at best". In the other case involving a dispute relating to a development, the developer sued an association and its executive members on the basis that minutes of settlement between the parties had been breached. The court concluded that the litigation should continue, but declined to order costs against the moving parties, stating that "the motion was somewhat novel in that it involved recently enacted provisions .... And in no way was the motion frivolous or without merit. It was a motion that had to be brought and argued."

In a case where the moving parties successfully moved to have the claim against them dismissed, the court concluded

...In short, the plaintiff's claim appears to me to be an instance of having seized an opportunistic pretext to inflict harm on a smaller competitor rather than a bona fide gesture to preserve reputation.

The moving parties were awarded costs on a full indemnity basis.

The legislation also establishes that if the court dismisses a proceeding under the anti-SLAPP legislation, damages can be awarded to the moving party if the court finds that the dismissed proceeding was brought in bad faith or for an improper purpose. We have not yet seen a case where this part of the legislation has been applied.

In a June 3, 2016 decision of the Ontario Municipal Board, the Board considered if a motion for costs against citizen appellants constituted a SLAPP suit. As a threshold issue, the Board considered whether an appeal by citizens to the Board could properly be considered "expression" in the way the legislation intended. The Board concluded that it was "not persuaded that participation in debates on matters of public interest is the same as exercising an appeal right or securing standing as a party in a proceeding before the Board... and then being able to call a full case as an appellant or added party." The Board proceeded to consider the matter under its usual costs rules, and concluded that a costs award against the citizens was appropriate, and fixed costs against them for $85,333.

In the coming months, we're sure to see additional cases consider these new provisions.

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.

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