Ontario Court Of Appeal Clarifies Test Under 'Anti-SLAPP' Legislation

On August 30, 2018, the Court of Appeal for Ontario released its long-awaited decisions in a series of appeals1 addressing the limits of the province's "anti-SLAPP" legislation. This was the first appellate interpretation of s. 137.1 of the Courts of Justice Act (CJA), which provides a preliminary, pretrial procedure for a defendant to seek dismissal of a claim where the litigation arises out of a defendant's expression on a matter of public interest. In its decisions, the Court of Appeal clarified the appropriate interpretation of the test on an anti-SLAPP motion, and in doing so cleared up some uncertainties that had arisen out of the lower court decisions.

Ontario's anti-SLAPP legislation

SLAPP suits - or Strategic Lawsuits Against Public Participation - are actions brought by persons subject to public criticism in an effort to silence or intimidate their critics (who are often of significantly lesser financial means). In 2015 - in an effort to address the growing number of these types of suits - the Ontario Legislature enacted the Protection of Public Participation Act, 2015, which in turn introduced sections 137.1 to 137.5 to the CJA. Section 137.1 provides an expedited, summary mechanism for defendants of SLAPP suits to seek to have those actions dismissed in a relatively expedient and less expensive manner.

Section 137.1 of the CJA

Section 137.1 of the CJA allows a defendant to move at any time after a proceeding is commenced (even before they have filed a statement of defence) for an order dismissing the proceeding. To have the proceeding dismissed, the defendant must first "[satisfy] the judge that the proceeding arises from an expression made by the [defendant] that relates to a matter of public interest" (what the Court of Appeal called the "threshold requirement," s. 137.1(3)).

The onus then shifts immediately to the plaintiff, who must clear both of what the Court called a "merits-based hurdle" and a "public interest hurdle."

The merits-based hurdle requires that the plaintiff satisfy the judge that there are "grounds to be believe" that:

the proceeding has substantial merit (s. 137.1(4)(a)(i)); and the defendant has no valid defence in the proceeding (s. 137.1(4)(a)(ii)). The public interest hurdle requires a balancing exercise whereby the plaintiff must satisfy the judge that:

[T]he harm likely to be or have been suffered by the responding party [plaintiff] as a result of the moving party's [defendant's] expression is...

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