Test For Anti-SLAPP Motions Reaffirmed By The Ontario Court Of Appeal

The law has struggled to balance the right to freedom of expression ingrained in our Charter of Rights and Freedoms with protecting the public from defamatory statements. In an effort to maintain this balance, the Ontario Legislature put in place s.137.1 of the Courts of Justice Act ("CJA"), which is Ontario's version of anti-SLAPP legislation. SLAPP is an acronym for "Strategic Lawsuit Against Public Participation" and the purpose of the anti-SLAPP legislation is to make it harder to misuse litigation to chill criticism that is in the public interest.

Section 137.1 of the CJA allows a defendant to a defamation suit to expeditiously have the claim dismissed early in the proceedings, but only if they can satisfy a judge that the statements in issue relate to a matter of public interest. Once the defendant establishes the statement was a matter of public interest, the Judge may not dismiss the claim, if (second step) the claim has merit and defendant does not have a valid defence to the claim or (third step) if the harm done by the statement is so severe that it outweighs the right to make the statement.

In 2018, the Ontario Court of Appeal released several decisions clarifying the Anti-SLAPP test, including 1704604 Ontario Ltd. v. Pointes Protection Association. These decisions were reaffirmed by the Ontario Court of Appeal in December in Ontario College of Teachers v. Bouragba, 2019 ONCA 1028.

Mr. Bouragba was member of the Ontario College of Teachers (the "College"). Mr Bouragba also made some complaints to the College relating to members of the College but did not agree with how the College disposed of those complaints.

Mr. Bouragba sent communications to members of the council saying they were dishonest, colluded, took action against members for improper reasons, were biased, and accused the College of harassing and discriminating against students, parents, and members. The College initiated this Claim alleging that the statements were defamatory. In response, Mr. Bouragba brought a motion to dismiss the claim pursuant to s.137.1 of the CJA. The...