Knocking out Defamation Claims –The Court of Appeal Further Considers Anti-Slapp Legislation

By fcladmin
/ 15 min read

In August of 2018, the Ontario Court of Appeal released six concurrent decisions addressing Ontario’s anti-SLAPP legislation. These six decisions marked the first appellate interpretation of section 137.1 of the Courts of Justice Act, a section created by The Protection of Public Participation Act, 2015. This legislation had been enacted by the provincial government to deal with the growing concern over SLAPPs—Strategic Lawsuits Against Public Participation. SLAPPs are lawsuits that are intended to censor, silence and intimidate critics, often brought by well-funded plaintiffs against defendants who are of lesser financial means.

The Court of Appeal in 1704604 Ontario Ltd. v Pointes Protection Association (“Pointes”) and the five concurrent decisions clarified the appropriate interpretation of the legal test on an anti-SLAPP motion.[1] Section 137.1 allows defendants to move at any time after a proceeding is commenced against them for an order dismissing the proceeding.

In order to dismiss the proceeding, the defendant must initially establish that the “proceeding arises from an expression made by the person that relates to a matter of public interest.” At this step, Justice Doherty clarified that the phrase “public interest” is not qualified in any way and is to be interpreted broadly. In determining whether a matter is of public interest at this stage, the motion judge is to apply the principles set out by the Supreme Court of Canada in Grant v Torstar Corp.[2]

Once the defendant meets this threshold requirement, the onus then shifts to the plaintiff who must clear a “merits-based hurdle” and a “public interest hurdle” to demonstrate that the proceeding should not be dismissed. The merits-based hurdle requires the plaintiff to show that the proceeding has substantial merit and that the defendant has no valid defence in the proceeding. If the plaintiff cannot meet its burden at the merit requirement or the “no valid defence” requirement, the claim will be dismissed.

The Court noted that at this stage, the plaintiff must show that a reasonable trier of fact could conclude that the claim has a real chance of success. The plaintiff must do more than simply show that there is some chance of success. The “no valid defence” section requires the plaintiff to show that there are “reasonable grounds to believe” that none of the defences advanced in the defendant’s pleadings or motion materials, could succeed.

After the plaintiff clears the merits-based hurdle, the plaintiff must also establish that the harm resulting from the defendant’s expression is serious enough that the public interest in allowing the proceeding to continue outweighs the public interest in protecting the defendant’s expression.

Justice Doherty referred to this step as the “heart of Ontario’s anti-SLAPP legislation.” Harm to the plaintiff can be monetary or non-monetary and while the plaintiff is not “expected to present a fully-developed damages brief”, there must be “sufficient evidence to draw a causal connection between the challenged expression and damages that are more than nominal”. The Court additionally noted that at this stage, the quality of expression and motivation of the defendant can play an important role in measuring the extent of the public interest in protecting the expression.

Recent Court of Appeal Decisions on Anti-SLAPP Motions

The first round of appellate decisions dealing with anti-SLAPP motions following Pointes have now been released and will provide additional direction to Superior Court judges deciding these motions.[3] The motion judges in all four of these decisions heard and decided the motions before the Court of Appeal released the Pointes decision. In deciding the appeals, the Court of Appeal followed the interpretation of section 137.1 set out in Pointes.

The appeals predominately focused on the interpretations of section 137.1(4)(a)(ii), the “no valid defence” requirement; and section 137.1(4)(b), the public interest balancing stage.

On the “no valid defence” requirement, the Court of Appeal reiterated that the onus on the plaintiff is not to show that there was no possibility of the defence succeeding. Rather, the plaintiff only needs to demonstrate that a reasonable trier could conclude that the defendant did not have a valid defence. Where the defence “could go either way”, this would constitute a finding that a reasonable trier could reject the defence.

The discussion on the public interest hurdle in these appeals clarifies that the plaintiff must both quantify the harm and establish that the harm flowed from the defendant’s expression.

In two of these appeals, the Court held that the proceedings had been properly dismissed by the motion judge as the plaintiff was unable to provide any quantification of the claimed losses or establish causation.[4] In Bondfield Construction Company v The Globe and Mail Inc., although the protection of the defendant’s expression was clearly a matter of public interest, the Court still found that the public interest favoured permitting Bondfield to continue its defamation claim because Bondfield had “made out a formidable case of significant harm suffered or likely to be suffered as a result of the articles should they be found defamatory.” This clarification will require plaintiffs in defamation-related proceedings to be prepared to produce evidence of harm at this preliminary motion stage, ensuring that only meritorious claims move forward.

[1] 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685 [Pointes]; Fortress Real Developments Inc. v Rabidoux, 2018 ONCA 686; Veneruzzo v Storey, 2018 ONCA 688; Platnick v Bent, 2018 ONCA 687; Able Translations Ltd v Express International Translations Inc., 2018 ONCA 690; and Armstrong v Corus Entertainment Inc.,, 2018 ONCA 689.

[2] 2009 SCC 61 at paras 99-109.

[3] Bondfield Construction Company v The Globe and Mail Inc., 2019 ONCA 166; Lascaris v B’nai Brith Canada, 2019 ONCA 163; New Dermamed Inc. v Sulaiman, 2019 ONCA 141 and United Soils Management Ltd. v Mohammed, 2019 ONCA 128.

[4] New Dermamed Inc. v Sulaiman, 2019 ONCA 141; United Soils Management Ltd. v Mohammed, 2019 ONCA 128.