Anti-SLAPP Legislation Tested At The Court Of Appeal

On August 30, 2018, the Ontario Court of Appeal released six unanimous decisions that address Ontario's "anti-SLAPP" legislation.1

SLAPPs - Strategic Lawsuits Against Public Participation - are actions brought to silence or financially punish one's critics, often by well-funded plaintiffs against more vulnerable defendants. These actions are generally not brought to advance legitimate rights, but, rather, to punish those who may speak out on matters of public interest.

In an effort to deal with the growing concern over SLAPPs in Ontario, the provincial government enacted The Protection of Public Participation Act, 20152 (the "PPPA") in November 2015, which was designed to aid in the identification and elimination of SLAPPs.

The PPPA has been interpreted and applied unevenly at the Superior Court level in Ontario. The recent decisions by the Court of Appeal marked the first appellate interpretation of section 137.1 of the Courts of Justice Act,3 a new section created by the PPPA, and provided much-needed clarity on the appropriate interpretation of the tests to be met on anti-SLAPP motions.

Section 137.1

The Court of Appeal described as follows the purpose of the new section 137.1 of the Courts of Justice Act introduced by the PPPA:

The purpose of s. 137.1 is crystal clear. Expression on matters of public interest is to be encouraged. Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage. Plaintiffs who commence a claim alleging to have been wronged by a defendant's expression on a matter of public interest must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant's freedom of expression.4

Section 137.1(3) provides that, on a motion by a defendant to a proceeding, a judge shall dismiss the proceeding against that person if the judge is satisfied that the proceeding "arises from an expression made by the person that relates to a matter of public interest." The defendant is permitted to bring this motion before filing a statement of defence.

Once the defendant has satisfied the judge that the proceeding "arises from an expression made by the person that relates to a matter of public interest", the onus shifts to the plaintiff, who must clear a "merits-based...