The Court of Appeal for Ontario has arguably made it even harder for defendants to obtain dismissals of defamation proceedings that have been brought against them at an early stage. In a recent decision by the Honourable Justice Peter Lauwers, the Court of Appeal for Ontario has weighed in on the test for dismissing an action as a Strategic Lawsuit Against Public Participation ("SLAPP") under section 137.1 of the Courts of Justice Act(CJA). Following numerous observations from previous courts about an apparent misuse of anti-SLAPP motions, Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171("Benchwood")calls for a "nuanced analysis" in the context of defamation actions. The decision sets out a number of governing principles for determining whether there is a public interest in protecting an impugned expression, all of which appear to raise the bar for dismissal.
Background
Benchwood is the latest in a series of Court of Appeal decisions calling for a narrower interpretation of section 137.1 of the CJA.Section 137.1 was introduced in Ontario under the Protection of Public Participation Act, 2015 to allow for the expedited dismissal of proceedings that limit freedom of expression on matters of public interest. Such "anti-SLAPP" legislation is designed to deter attempts to use litigation to silence permissible criticism, particularly since that litigation is often launched by parties with greater financial means than their critic. However, over the years since the legislation came into force, the Court of Appeal for Ontario has increasingly criticized defendants' use of section 137.1. In 2023, the Court stated that the legislation has often been "misused as a costly and time-consuming surrogate for a summary judgment motion".1
The Test for Dismissal Under Section 137.1
Subsection 137.1(3) of the CJA requires a motion judge to dismiss a proceeding brought against a defendant if the defendant satisfies the judge that: (1) the proceeding was brought in response to an expression made by the defendant and (2) the expression in question relates to a matter of public interest. The onus then shifts to the plaintiff under subsection 137.1(4) to demonstrate that (1) the proceeding has substantial merit, (2) the defendant has no valid defence, and (3) the harm suffered by the plaintiff as a result of the defendant's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.
In Benchwood, the Court of Appeal for Ontario discussed the appropriate analysis that a court ought to undertake when answering the question of whether the defendant has "no valid defence" under subsection 137.1(4)(a)(ii). In the seminal case on anti-SLAPP legislation in Canada, 1704604 Ontario Ltd. v. Pointes Protection Association ("Pointes"), the Supreme Court of Canada (the "SCC") held that, in conducting the analysis,"[t]he word no is absolute, and the corollary is that if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed".2 While the Court of Appeal for Ontario acknowledged the SCC's approach, it went on to proffer a different view on this aspect of the test, distinguishing its interpretation from the SCC's guidance in Pointes.
Factual Overview
At the heart of Benchwood is a dispute between a contracting company, Benchwood, and the dissatisfied homeowners who had hired Benchwood to carry out renovations on their home. The plaintiffs sued the defendants for defamation after the homeowners posted a number of derogatory comments about the contracting business on social media. The defendant homeowners then moved for an order dismissing the action pursuant to section 137.1. The motion judge granted the homeowners' anti-SLAPP motion and dismissed Benchwood's defamation action, finding that the homeowners' defence of justification had a prospect of success and that Benchwood had failed to establish that any harm suffered as a result of the Homeowners' defamatory statements was serious. Benchwood appealed.
Guidance from the Court of Appeal in Benchwood
The main questions considered on appeal were whether the motion judge erred: (1) in finding that the defendants' statements related to a matter of public interest; (2) in her approach to the ground of "no valid defence" under section 137.1(4)(a)(ii); and (3) in her approach to the weighing exercise relating to harm and public interest under section 137.1(4)(b). In considering these issues, the Court of Appeal ultimately allowed Benchwood's appeal and overturned the motion judge's decision to dismiss the action.
Justice Lauwers begins his analysis with sharp criticism of the anti-SLAPP provision, stating that section 137.1 is "poorly drafted and confusing" and "in desperate need of a makeover, if not repeal and replacement".3 His Honour called for a nuanced interpretation of the provision, with due regard to the text, context, and purpose.
With this approach in mind, the Court held that the motion judge was mistaken in finding that the defendant homeowners' online reviews and criticisms of the plaintiff contractor related to a matter of public interest. Despite the public nature of the comments, the Court relied on its previous jurisprudence to find that the expressions were more properly characterized as relating to an "especially bitter private dispute" and not a matter of public interest under section 137.1. As such, the defendants' comments did not fall within the types of expression that were intended to be captured by the provision.
The Court went on to hold that the motion judge further erred in her approach to the ground of "no valid defence" under section 137.1(4)(a)(ii). The provision reads:
A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
...
(ii) the moving party has no valid defence in the proceeding; and
...
The motion judge was unable to find that the homeowners' defence of justification had no real prospect of success and, on that ground, dismissed the claim. The Court of Appeal held that this was an error for two reasons. First, the conjunctive "and" in section 137.1(4)(a)(ii) required the motion judge to proceed to the weighing exercise under section 137.1(4)(b) rather than dismiss the action on the basis of section 137.1(4)(a)(ii) alone. Second, Justice Lauwers referred to the Supreme Court of Canada decision in Bent v. Platnick, 2020 SCC 23 to find that a more "nuanced" approach to section 137.1(4)(a)(ii) is required in the context of a defamation action. According to this more nuanced approach, the plaintiff need only show ground to believe that the defences do not tend to weigh more in the defendant's favour. Justice Lauwers acknowledged tension between this interpretation of section 137.1(4)(a)(ii) and the guidance of Justice Côté in Pointes, but distinguished the Supreme Court decision on the basis that Pointes was a contract dispute rather than a defamation claim. Justice Lauwers ultimately concluded that, in defamation cases where, as in Benchwood, it is not immediately clear that there is no valid defence, it is preferable to move on to the weighing exercise under section 137.1(4)(b).
Finally, the Court found that the motion judge erred in conducting only a perfunctory weighing exercise relating to harm and public interest under section 137.1(4)(b). The Court referred to previous decisions that have characterized section 137.1(4)(b) as the "fundamental crux" of the analysis and identified a number of governing principles underpinning this stage, namely:
- Personal attacks and defamatory statements are only remotely related to the fundamental values of freedom of thought belief, opinion and expression protected by section 2(b) of the Charter of Rights and Freedoms. As such, there is less public interest in protecting these types of expressions;
- Statements that are exaggerated, inaccurate, or contain deliberate misrepresentations also reduce the public interest protection afforded to those expressions;
- Expressions made for the purpose of interfering with another's ability to express their views may also attract less public interest protection;
- The motivation behind the subject expressions can lower the public interest in protecting the expression; and
- The presence of "classic SLAPP indicia" will weigh in favour of protecting the expression. Such indicia include: whether the plaintiff has a history of using litigation or the threat of litigation to silence critics; a financial or power imbalance that strongly favours the plaintiff; a punitive or retributory purpose animating the action; and minimal or nominal damages suffered by the plaintiff.
The Court applied these principles to the statements of the homeowners and concluded that their expressions did not relate to a matter of public interest or to safeguarding public participation. Rather, this was a private dispute—with none of the classic SLAPP indicia—and there was potential evidence of malice in a number of the homeowners' comments. In this context, the Court found that section 137.1 did not apply and there was no reason to stop Benchwood's defamation action from proceeding.
Key Takeaways
The reasons in Benchwood are part of a larger trend of the Court of Appeal applying section 137.1 of the CJA narrowly. Justice Lauwers' interpretation of the test for dismissal under this provision appears to elevate the hurdle for a defendant hoping to have a defamation action dismissed against them at an early stage through an anti-SLAPP motion. That being said, as acknowledged by Justice Lauwers himself, there are obvious tensions between this decision and the SCC's decision in Pointes. It remains to be seen how applicants in anti-SLAPP motions make use of this decision and how courts will treat the conflicting guidance.
Case Information
Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171
Docket: COA-24-CV-0130
Date of Decision: March 6, 2025
Footnotes
1. The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381 at para.38.
2. 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at para. 58.
3. At para. 14.
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