Fair Is Fowl And Fowl Is Fair: Implications Of The Ontario Court Of Appeal's Decisions In Subway v CBC

Published date18 February 2021
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence, Libel & Defamation
Law FirmWeirFoulds LLP
AuthorMs Emma Romano

The Ontario Court of Appeal recently released two decisions under Ontario's anti-SLAPP (Strategic Litigation Against Public Participation) legislation: Subway Franchise Systems of Canada, Inc. v Canadian Broadcasting Corporation, 2021 ONCA 25 and Subway Franchise Systems of Canada, Inc. v Canadian Broadcasting Corporation, 2021 ONCA 26.

For parties considering pursuing or responding to an anti-SLAPP motion, these decisions provide useful guidance on two questions:

  1. Whether a negligence claim can properly be the subject of an anti-SLAPP motion, and
  2. How discretionary and fact-specific defences will be considered under the "no valid defence" prong of the test on an anti-SLAPP motion.

Procedural History

Subway's claim arose after an investigation by the Canadian Broadcasting Corporation show Marketplace into the contents of Subway's (and other popular food chains') chicken sandwiches.

The CBC reported that Subway's chicken contained "only slightly more than 50% chicken". CBC engaged a laboratory at Trent University to do the testing.

Subway commenced a claim for $210 million against CBC and Trent - CBC for defamation relating to the reporting and Trent for defamation and negligence for their allegedly careless testing.

Both defendants brought motions under s. 137.1 of the Courts of Justice Act, RSO 1990, c C.43 (Ontario's anti-SLAPP legislation).

Section 137.1 provides for a mechanism to dismiss at an early stage a lawsuit that arises from an expression on a matter related to the public interest. It provides in part as follows:

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

(2) In this section,

"expression" means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

(3) 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...

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