Rebel, Rebel, Your Case Is A Mess: More On The Challenges Of Anti'SLAPP Motions

Published date08 April 2021
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
Law FirmWeirFoulds LLP
AuthorMr Carlos Martins

In November 2015, amendments to Ontario's Courts of Justice Act facilitated the early dismissal of "strategic lawsuits against public participation". The aim was to prevent the censure and intimidation of persons expressing themselves on matters of public interest by actors who attempted to silence critics through the expense (emotional and financial) of unmeritorious litigation.

There was, and remains, much ambiguity in the jurisprudence on how to apply these provisions and the case law continues to evolve, even though the Supreme Court of Canada released a tranche of six decisions interpreting these provisions in September 2020. The main decisions were 1704604 Ontario Ltd. v. Pointes Protection Association 2020 SCC 22 and Bent v. Platnick 2020 SCC 23.

(Check out the recent blog post by Emma Romano of WeirFoulds LLP on new developments in anti-SLAPP case law here.)

The provisions are as follows:

37.1(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 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.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

1. the proceeding has substantial merit; and

2. the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

It is important to note that where the Court finds an expression to be "in the public interest", the onus shifts to the plaintiff to establish all the elements of s. 137.1(4) are met - otherwise the claim shall be dismissed.

Justice Diamond of the Ontario Superior Court of Justice, recently released a decision that provides both:

  • further guidance on how Courts will consider anti-SLAPP applications; and
  • a useful, high level review of some of the most...

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