The appellants in this case found themselves amidst what was becoming a complex, multi-layered legal battle with their former workplace, Cargo County, when an action was commenced against them for defamation, trespass, unintentional infliction of emotional distress, placing a person in a false light, intrusion on seclusion, and harassment with damages in the amount of $17,000,000.

The appellants brought an "anti-SLAPP" motion seeking a dismissal of Cargo County's action, arguing that it is a strategic lawsuit against public participation ("SLAPP").

The motion judge dismissed this motion. The appellants appealed the motion judge's decision to the Court of Appeal of Ontario.

The Court of Appeal decision provides us with detailed analysis and guidance regarding anti-SLAPP motions: what are they, when are they engaged, and when are they established?

BACKGROUND

The appellants in this matter are individuals who, at one time or another, worked as drivers for the Respondent, Cargo County, for different periods between 2019 and 2020.

After ceasing to work for Cargo County, three of the appellants submitted complaints under the Canada Labour Code ("CLC"), claiming payment from Cargo County including for unpaid wages and unauthorized deductions. Two of the appellants were successful in their complaints. Cargo County appealed the CLC decisions to the Canada Industrial Relations Board. As a statutory condition of appealing, Cargo County paid the disputed monies "to the CLC"1 pending the decisions on the appeals.

The appellants were dissatisfied with the progress of the CLC proceedings, as they wanted their claims to be paid immediately. They approached several activist organizations for support. Some of these organizations sent letters to Cargo County threatening protests and rallies if the drivers were not paid immediately. Cargo County's lawyer responded stating that the CLC complaint process would be followed, and issued the organizations with trespass notices.

Staying true to their threats, some of the appellants organized a protest consisting of a crowd of 250 people, some of whom were carrying signs that said "pay your drivers now" and "thief alert". Photographs and videos from this rally were posted on multiple social media platforms. In addition, a "phone zap" was conducted where hundreds of calls were made to Cargo County during business hours and numerous one-star reviews were posted online.

Cargo County commenced an action against the appellants seeking damages for the alleged defamatory statements ("pay your drivers now", "thief", "chor alert"2), in addition to damages for trespass and harassment, amongst other grounds.

In response, the Appellant brought a motion seeking dismissal of Cargo County's action pursuant to s.137.1 of the Courts of Justice Act ("CJA") – a motion commonly known as an anti-SLAPP motion.

WHAT IS AN ANTI-SLAPP MOTION?

"SLAPP"s are proceedings intended to intimidate and silence critics by forcing them into legal battles they cannot afford.

Section s.137.1 – the anti-SLAPP provision – allows a respondent to a lawsuit to bring a motion to have the lawsuit dismissed on the basis that it is a SLAPP. A respondent to a lawsuit can bring this motion at an early stage of the proceedings, thereby curtailing the costs that would ordinarily be involved in defending a lawsuit.

In order for the anti-SLAPP provision to be engaged, a judge must be satisfied that the proceeding arises from an expression that was made that is related to a matter of public interest.3

However, pursuant to s.137.1(4) of the CJA, an anti-SLAPP motion will not be successful if the judge is satisfied that:

  1. there are grounds to believe that the lawsuit has substantial merit and the responding party to the lawsuit has no valid defence (the so-called "merit-based hurdle); and
  2. the harm suffered by the person or company that brought the lawsuit is sufficiently serious that the public interest in allowing the lawsuit to continue outweighs the public interest in protecting the other party's expression (the so-called "public interest hurdle").

In this case, by bringing an anti-SLAPP motion, the appellants took the position that Cargo County have commenced an action against them in order to stifle their freedom of speech and expressions of public interest.

ANTI-SLAPP MOTION AND APPEAL

The motion judge dismissed the appellant's anti-SLAPP motion, having found that
the expressions made by the appellants were not a matter of public interest (and, in fact, that the expressions were strictly relating to a matter of private interest).

The appellants appealed the motion judge's decision to the Court of Appeal.

The Court of Appeal found that the motion judge had erred in law in concluding that the appellants' expressions were not a matter of public interest. Interestingly, however, the Court of Appeal still dismissed the appeal, having found that Cargo County met the merit-based hurdle and public interest hurdle pursuant to s.137.1(4)(a) and (b) of the CJA.

The Court of Appeal's decision reviewed basic legal principles relating to anti-SLAPP motions and the test that must be met for an anti-SLAPP motion to be successful. Some of these principles will be reviewed below.

THRESHOLD TEST: DOES THE EXPRESSION RELATE TO A MATTER OF PUBLIC INTEREST?

As noted above, the Court of Appeal found that the motion judge had erred in law in concluding that the appellants' expressions were not a matter of public interest.

In particular, the court made the following findings:

  • The motion judge erred in considering the appellants' motive, the merit of their expression and the manner in which it was made. The focus at this stage of this analysis should be on whether the expression, without regard to its qualitative features, related to a matter of public interest.
  • The motion judge erred in failing to consider the subject matter of the expression as a whole and scrutinizing portions of the expression in isolation. On the facts, the court found that the expressions made, when considered in the broader context, went beyond the resolution of a purely private dispute and raised issues about fair labour practices in respect of vulnerable workers, such that it related to a matter of public interest.
  • The motion judge erred in suggesting that their actions did not constitute expressions as defined under s.137.1(2), such that some causes of action, such as the trespass claim, were not proceedings that "arose from" an expression that relates to a matter of public interest.

As matter of general principle, the court noted that an expression about a private dispute can nevertheless relate to a matter of public interest. The court also recounted that the court should adopt a "broad and liberal" and "generous and expansive" approach to whether the expression relates to a matter of public interest4. The inquiry is a contextual one, and must be informed by the purpose of the anti-SLAPP legislation5.

MERIT-BASED HURDLE: DOES THE LAWSUIT HAVE MERIT, DO THE WORKERS HAVE A DEFENCE?

Once it is determined that the expressions relate to a matter of public interest, the court must determine whether the proceeding clears the merit-based hurdle and the public interest hurdle.

In relation to the merit-based hurdle, a judge must be satisfied that there are "grounds to believe" that the proceeding has substantial merit, and the responding party to the proceeding has no valid defence in the proceeding.

The court made clear that the "grounds to believe" standard is not a high one – it is more than a mere suspicion but less than proof on a balance of probabilities6. The court's function in this regard is not to assess the potential merits of each individual cause of action pleaded in the statement of claim, but to determine whether there is reason to believe that the respondents will succeed in the proceeding. The question is whether "there is a single basis in the record and the law to support a finding of substantial merit".7

On the facts, the court was satisfied that Cargo County had established that there are grounds to believe that the action has substantial merit.

In relation to the "no valid defence" requirement, the initial onus is on the appellants to "put in play" their defences. A defence can be "put in play" via a statement of defence8 or through other materials that have been filed. This should be sufficiently detailed to allow the court to "clearly identify the legal and factual components of the defences advanced"9.

Once a defence has been "put in play", the onus shifts to the respondent to demonstrate that there is reason to believe that none of the defences raised will succeed. To satisfy this burden, the responding party must show that the defences raised "are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success"10.

On the facts, the court found that the defences of justification, fair comment and responsible communication on a matter of public interest were "put in play" (despite there having been no statement of defence filed at that stage); however, the court found that there was basis in the record and law to support that these defences will not succeed.

PUBLIC INTEREST HURDLE: A BALANCING ACT

The final stage of the analysis under s.137.1(4) balances the public interest in allowing the proceeding to continue against the proceeding's deleterious effects on expression and public participation11.

A responding party to the anti-SLAPP motion must establish the existence of harm resulting from the expression. The harm can be monetary or non-monetary (e.g. reputation harm can be relevant), no definitive determination of harm or causation is required, and the harm does not need to be monetized or quantified. The responding party must simply "provide evidence for the motion judge to draw an inference of the likelihood in respect of the existence of harm and relevant causal links"12.

On the other side of the weighing exercise is the public interest in protecting the appellants' expression. At this stage, the court must undertake a qualitative consideration of the public interest in the expression: the quality and motivation of the expression, and whether the expression helps or hampers the public interest is relevant here13.

Since defamatory statements and personal attacks are 'very tenuously' related to the core values which underlie s. 2(b) of the Charter, there will be less of a public interest in protecting a statement that contains 'gratuitous personal attacks' or 'deliberate falsehoods'14.

On the facts of this case, the court found that while the impugned expression "relates to" an issue that is of public interest, its quality and nature, and the motivation behind the expression, reduce its value. Ultimately, the court was satisfied that the likelihood of harm suffered and likely to be suffered as a result of the appellants' expression is sufficiently serious that the public interest in permitting the Cargo County's action to continue outweighs the relatively modest public interest in protecting the appellants' expression.

In light of the forgoing, the Court of Appeal upheld the motion judge's decision to dismiss the appellants' anti-SLAPP motion.

TAKEAWAYS

For companies: Don't fear the anti-SLAPP motion. Anti-SLAPP is not meant to reduce the rights of companies in legitimate defamation cases.

For workers: Keep your critiques accurate. While protests against unfair working conditions are allowed, an employer can have a legitimate case when a worker makes misleading statements and gratuitous personal attacks.

Footnotes

1. The CLC requires the monies to be paid to the "Head of Compliance and Enforcement" pending the appeals; see s.251.101(2) of the CLC.

2. Meaning "thief alert"

3. Courts of Justice Act, s 137.1(3)

4. 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587 ("Pointes Protection"), at paras. 26, 30

5. Pointes Protection, at para. 30; Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 18

6. Pointes Protection, at para. 40.

7. Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 88

8. For example, see Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 104

9. 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, at paras 82-83

10. Hansman v. Neufeld, 2023 SCC 14, at para. 94; Pointes Protection, at para. 59

11. Hansman v. Neufeld, 2023 SCC 14, at para. 59; Pointes Protection, at para. 82.

12. Pointes Protection, at para. 71.

13. Pointes Protection, at para. 74

14. Pointes Protection, at paras. 74-75

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.