Court Refuses To Dismiss Claims That Did Not Engage SLAPP Provisions

• Published date: 09 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

Section 137.1 of the Courts of Justice Act (the "CJA"), which permits the dismissal of actions related to an expression made with respect to a matter of public interest, continues to receive judicial comment as parties test the scope and limits of the provision.

In Schwartz v. Collette, 2021 ONSC 2138, the court, which had ruled last year that a number of defamatory allegations should be dismissed because they involved expressions related to a matter of public interest, was required to determine whether a remaining allegedly defamatory comment and a claim for harassment/intentional infliction of mental/emotional suffering that were not related to any public interest matter could proceed or also needed to be dismissed because of the earlier finding.

The Plaintiffs' remaining claims alleged that the Defendant had made "in an unsolicited conversation with an unidentifiable gentleman" in a location where the Plaintiff carried on business that "RLO is where you go for rape lessons" and had, on multiple occasions, yelled at him and acted in an aggressive manner towards him.

The Defendant denied the allegation about the "rape lessons", but conceded that such an expression, if made, did not relate to a matter of public interest.

He argued that even though the remaining issues did not relate to any public interest matter, once a party had satisfied the test under s. 137.1(3) of the CJA, all claims in an action needed to be dismissed based on the meaning of the word "proceeding" used therein.

More specifically, s. 137.1(3) provides:

On a motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

The Defendant submitted that the word "proceeding", which was not defined in the CJA, referred to an entire action and not merely separate claims within an action. The Defendant contended that such an interpretation was supported by a purposive and contextual reading of all the provisions of s. 137.1 and was supported by the Ontario Court of Appeal decision in Veneruzzo v. Storey, 2018 ONCA 688 wherein it was suggested that a court should not look at a parties' claims in isolation when dealing with a SLAPP motion.

In contrast, the Plaintiffs argued that s. 137.1 did not create an "all or nothing" situation. The word "proceeding" should not be...