1 September 2018By Michael Bookman
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” …is 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 abusive].
However, the question for the Courts is: what is ‘a matter of public interest’? Justice Doherty concludes that there “is no exhaustive list of topics that fall under the rubric of ‘public interest’… The conduct of governmental affairs and the operation of the courts comes to mind.”
In summary, the Justice writes:
the concept of ‘public interest’ as it is used [in the Act] is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication.
The Claim’s Merit: Justice Doherty concludes that, on the balance of probabilities, the plaintiff must show the motion judge that “it could be reasonably said, on an examination of the motion record, that the claim has substantial merit” without requiring the plaintiff to present a fully developed case but also without convening a de facto summary judgment motion.
The Public Interest Balance: The plaintiff must persuade the motion judge that the harm caused to it by the defendant’s expression is sufficiently serious that the public interest engaged in allowing the plaintiff to proceed with the claim outweighs the public’s interest in protecting the defendant’s freedom of expression. This is no small task because, as Justice Doherty points out, “the balancing of the competing public interests will often be determinative of the outcome [on the motion]”. The plaintiff will almost inevitably have to provide a quantification of the harm caused, in monetary damages, by the defendant’s expression. However, the balancing “cannot be reduced to some arithmetic-like calculation”. It contains an element of subjectivity. Accordingly, motion judges should provide full reasons for such evaluations.
The Takeaway: The Court of Appeal for Ontario has provided crucial guidance for the interpretation of the anti-SLAPP legislation. How this guidance will play out in the courts is an open question, particularly as it relates to the balancing of the various interests in practice.
1 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 ; Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689; Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686; Platnick v. Bent, 2018 ONCA 687; Veneruzzo v. Storey, 2018 ONCA 688.
2 Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”), ss. 137.1 to 137.5.