Guidance For Counsel: Ontario's Court Of Appeal Addresses Anti-SLAPP Legislation

The Court of Appeal for Ontario recently released its decisions in six appeals regarding Ontario's Anti-SLAPP legislation1. The Court's reasons and interpretation of the legislative provisions, particularly on matters related to the burden of proof, provide crucial guidance regarding motions to dismiss claims that defendants allege are abusive.

SLAPP suits and anti-SLAPP legislation: Lawsuits that are designed to silence defendants, or cause them financial hardship during litigation, have come to be known as Strategic Lawsuits Against Public Participation ("SLAPP"). Such proceedings include, for example, a corporation bringing a defamation claim to silence an individual or group that is critical of the corporation's conduct.

Ontario introduced legislation to root out this kind of strategic litigation, as part of an effort to safeguard the constitutionally-projected right of freedom of speech2. This legislation allows a defendant to move to dismiss a claim it views as abusive at any time after a claim is commenced. To be successful, the defendant must show that the litigation arises out of the defendant's expression on a matter of public interest. Once the defendant does so, the onus shifts to the plaintiff to demonstrate that its claim has substantial merit, the defendant has no valid defence, and that the public interest in allowing the plaintiff's claim to proceed outweighs the public interest in protecting the defendant's freedom of expression.

If the plaintiff can persuade the motion judge that its claim is meritorious, and outweighs the public's interest in protecting the defendant's freedom of speech, the suit can continue. Otherwise, the claim is dismissed.

While the purpose of the legislation appears clear, courts have wrestled with interpreting the specific requirements of the provisions, its various burdens of proof, and especially the public interest element. The Court in these appeals carefully parses the legislative wording and policy underlying the anti-SLAPP provisions to provide much-needed guidance.

The Public Interest: Justice Doherty holds that:

[a] broad reading of "public interest" consistent with the purposes described in [the Act]. Any lawsuit that attacks a defendant's expression on a matter of public interest has the potential to unduly discourage public discourse on matters of public interest. Mitigating that risk is best achieved by allowing wide access to the pretrial remedy [to dismiss a claim if it is...

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