Canada: Ontario Court Of Appeal Clarifies Test Under "Anti-SLAPP" Legislation

On August 30, 2018, the Court of Appeal for Ontario released its long-awaited decisions in a series of appeals1 addressing the limits of the province's "anti-SLAPP" legislation. This was the first appellate interpretation of s. 137.1 of the Courts of Justice Act (CJA), which provides a preliminary, pretrial procedure for a defendant to seek dismissal of a claim where the litigation arises out of a defendant's expression on a matter of public interest. In its decisions, the Court of Appeal clarified the appropriate interpretation of the test on an anti-SLAPP motion, and in doing so cleared up some uncertainties that had arisen out of the lower court decisions.

Ontario's anti-SLAPP legislation

SLAPP suits – or Strategic Lawsuits Against Public Participation – are actions brought by persons subject to public criticism in an effort to silence or intimidate their critics (who are often of significantly lesser financial means). In 2015 – in an effort to address the growing number of these types of suits - the Ontario Legislature enacted the  Protection of Public Participation Act, 2015, which in turn introduced sections 137.1 to 137.5 to the CJA. Section 137.1 provides an expedited, summary mechanism for defendants of SLAPP suits to seek to have those actions dismissed in a relatively expedient and less expensive manner. 

Section 137.1 of the CJA

Section 137.1 of the CJA allows a defendant to move at any time after a proceeding is commenced (even before they have filed a statement of defence) for an order dismissing the proceeding. To have the proceeding dismissed, the defendant must first "[satisfy] the judge that the proceeding arises from an expression made by the [defendant] that relates to a matter of public interest" (what the Court of Appeal called the "threshold requirement," s. 137.1(3)).

The onus then shifts immediately to the plaintiff, who must clear both of what the Court called a "merits-based hurdle" and a "public interest hurdle."

The merits-based hurdle requires that the plaintiff satisfy the judge that there are "grounds to be believe" that:

  • the proceeding has substantial merit (s. 137.1(4)(a)(i)); and
  • the defendant has no valid defence in the proceeding (s. 137.1(4)(a)(ii)).

The public interest hurdle requires a balancing exercise whereby the plaintiff must satisfy the judge that:

[T]he harm likely to be or have been suffered by the responding party [plaintiff] as a result of the moving party's [defendant's] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. (s. 137.1(4)(b))

A failure by the plaintiff to clear both hurdles will lead to a dismissal of its action.

(a) The threshold requirement (s. 137.1(3))

The initial onus is on the defendant to prove on a balance of probabilities that the proceedings arose from an expression made by the defendant, and that the expression "relates to a matter of public interest." "Public interest" is not defined in the legislation. Justice Doherty (who wrote the unanimous decisions in all six appeals) noted that it is a "broad" concept, and that the determination must be made "objectively, having regard to the context in which the expression was made and the entirety of the relevant communication." He held that while "there is no exhaustive list of topics" that can be considered "public interest," certain topics (like the conduct of governmental affairs and the operation of the courts) inevitably will be. Justice Doherty emphasized that a matter of public interest has to be distinguished "from a matter about which the public is merely curious or has a prurient interest." The merits of the expression, the motive of the author or the size of the audience of the expression are irrelevant to the analysis (at least at the "threshold requirement" stage).

(b) The merits-based hurdle (s. 1371.1(4)(a))

Once the defendant has cleared the threshold requirement, the onus shifts to the plaintiff to satisfy the judge that there are grounds to believe that: (i) the proceeding has substantial merit and (ii) the defendant has no valid defence. Justice Doherty cleared up some confusion in the underlying motion decisions by finding that the balance of probabilities is the appropriate standard of proof to be applied at this stage.

On the first prong of the merits-based hurdle, Justice Doherty cautioned against s. 137.1 motions becoming de facto summary judgment motions, and underscored that they are "screening" motions where judges do not generally make "findings of fact [...], credibility determinations, or any ultimate assessment of the merits." He held that the appropriate analysis only involved determining whether, on an examination of the motion record,  "there are reasonable grounds to believe that a reasonable trier could accept the evidence." In so doing, he noted that "[b]ald allegations, unsubstantiated damages claims, or unparticularized defences are not the stuff from which 'grounds to believe' are formulated." However, he emphasized that "it is not for the motion judge to determine" whether "the claim has 'substantial merit,'" but only whether "it could reasonably be said, on an examination of the motion record, that the claim has substantial merit."

On the second prong, Justice Doherty held the plaintiff is not required to address all of the defendant's possible defences and prove that none have any validity. Instead, he interpreted that section as contemplating an evidentiary burden on the defendant to advance any proposed "valid defence" (in either its statement of defence or responding motion materials), which would then place an onus on the plaintiff to demonstrate only that there are "reasonable grounds to believe" that none of those defences would succeed. He held that "[i]f that assessment is among those reasonably available on the record, the plaintiff has met its onus."

(c) The public interest hurdle (s. 137.1(4)(b))

If it clears the merits-based hurdle, the plaintiff must also satisfy the judge that the harm caused to the plaintiff by the defendant's expression is "sufficiently serious" that the public interest in allowing the claim to proceed outweighs the public interest in protecting the defendant's freedom of expression. Justice Doherty referred to this as the "heart of Ontario's anti-SLAPP legislation." He noted that the harm to the plaintiff can be monetary or non-monetary (e.g., reputational damage or infringement on personal privacy), although the plaintiff must provide some basis on which the harm or potential harm can be assessed. He held that the plaintiff is not "expected to present a fully-developed damages brief," but that assuming the plaintiff has cleared the merits hurdle, a "common sense reading of the claim, supported by sufficient evidence to draw a causal connection between the challenged expression and damages that are more than nominal will often suffice."

Justice Doherty envisioned scenarios where meritorious claims that otherwise met the merits-based hurdle could be dismissed under the public interest hurdle because the harm to the plaintiff had been "insignificant" (and thus, the public interest in protecting the expression would outweigh the public interest in seeing the plaintiff's claim continue). However, it appears clear that where a plaintiff is able to sufficiently demonstrate serious harm resulting from the expression (even at a preliminary stage), this hurdle will be cleared.

(d) Costs regime

The Court of Appeal also addressed the novel costs regime provide for in s. 137.1(7) of the CJA. As Justice Doherty held, that section "creates a starting point" whereby, if a defendant is successful on the motion, the judge should "start from the premise that the defendant should receive costs on both the motion and in the proceeding on a full indemnity basis" (as opposed to a partial indemnity basis, which is the norm). He noted that the ultimate discretion on costs still rests with the motion judge, and that the overriding concern that costs be "fair and reasonable" still applied. However, the "full indemnity starting point" was a clear statement from the Legislature that SLAPP actions are to be strongly disincentivized.

Takeaways

Ontario's anti-SLAPP legislation seeks to provide an appropriate balance between freedom of expression and the right to be able to defend and protect one's reputation. The legislation seeks to achieve the balance by providing a mechanism to screen out at an early stage unmeritorious claims designed to silence and intimidate, while allowing plaintiffs to continue with actions where they are able to meet the merits-based and public interest hurdles. The Court of Appeal's series of decisions helpfully clarify how courts are to apply the legislation in a manner that best seeks to achieve that balance. The underlying appeals largely turned on their own facts, but the Court's analysis is a welcome step to ensuring that all future cases will be determined on a consistent set of standards and rules.  

Footnotes

1 The Court's substantive analysis of s. 137.1 was set out in its decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685. It released its reasons concurrently in five other decisions in Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, Platnick v. Bent, 2018 ONCA 687, Veneruzzo v. Storey, 2018 ONCA 688, Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 and Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690. While the other five decisions address specific arguments raised in those appeals, they do not repeat the rigorous s. 137.1 analysis in Pointes.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must 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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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