13 March 2019By Brendan Monahan
In a pair of recent decisions, the Ontario Court of Appeal provided further guidance on the correct approach to the “valid defence” analysis under the anti-SLAPP provisions of section 137.1 of the Courts of Justice Act (the “CJA”).
The Court first interpreted these provisions, designed to root out lawsuits intended to silence defendants or cause them financial hardship (also known as Strategic Lawsuits Against Public Participation, or “SLAPPs”) in a series of rulings last summer, which we blogged about here.
In these two latest rulings, the Court has clarified that a respondent on a s. 137 motion only needs to show that a trier of fact “could conclude that none of the defences advanced would succeed”. In both cases, the Court overturned the decision of the motion judge who had dismissed the action by imposing a much higher burden on the respondent at that stage of the test. In the result, both actions were restored and remitted to the Superior Court of Justice.
The Test Under Section 137.1 of the CJA: On a motion under s. 137.1 of the CJA, the moving party (defendant in the action) must first establish that the proceeding arises from an expression made by the person that relates to a matter of public interest. The burden then shifts to the responding party (plaintiff in the action) who must satisfy the judge that there are grounds to believe that: (i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding. The responding party must also establish that the harm it will suffer 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.
The Motion Judges’ Decisions: The central issue in both cases was the motion judges’ interpretation of the “no valid defence” requirement under s. 137.1.
In Lascaris v. B’nai Brith Canada, 2019 ONCA 163 (“Lascaris”), B’nai Brith moved to dismiss a defamation claim by Alexander Lascaris, arising from articles and tweets published by B’nai Brith accusing Mr. Lascaris of supporting terrorism against the state of Israel. The motion judge held that the “no valid defence” requirement under s. 137.1(4)(a)(ii) required Mr. Lascaris to demonstrate that none of the defences raised by B’nai Brith “could possibly succeed”.1 The motion judge found that because the defence of fair comment had some hope of success, Mr. Lascaris had failed to discharge his burden. The motion was granted, and Mr. Lascaris’ action was dismissed.
In Bondfield v. The Globe and Mail Inc. et al., 2019 ONCA 166 (“Bondfield”), the Globe and Mail moved to dismiss a defamation claim by Bondfield, arising from a series of investigative articles alleging a conflict of interest with respect to Bondfield’s bid on a major construction project. On the “no valid defence” requirement, the motion judge held that Bondfield had to establish that the Globe had “no valid defence whatsoever”.2 The motion judge ultimately found that Bondfield had not cleared this hurdle, and dismissed Bondfield’s claim.
The Court of Appeal Decisions: In both appeals (which were heard separately but decided by the same panel comprised of Doherty, Pardu and Nordheimer JJ.A.), the Court found that the motion judge had erred in their interpretation of the “no valid defence” requirement. The Court found that the motion judges’ reasoning was inconsistent with the Court’s guidance in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (“Pointes”) and the related cases that were released simultaneously in 2018 (though it should be noted that both motions were decided prior to the release of Pointes). In Bondfield, Doherty J.A. put it this way:
The motion judge placed the onus on Bondfield to show that ‘the Globe had no valid defence whatsoever.’ As explained in Pointes, s. 137.1(4)(a)(ii) imposes a significantly less onerous burden on Bondfield. Bondfield was required to show that a reasonable trier could conclude that the Globe did not have a valid defence. Bondfield would meet that onus if it showed that a reasonable trier could reject all of the various defences put in play by the Globe. A determination that a defence ‘could go either way’ in the sense that a reasonable trier could accept it or reject it is a finding that a reasonable trier could reject the defence. That is as far as Bondfield had to go to meet its onus … 3 [emphasis added].
Nordheimer J.A. made a similar observation in Lascaris:
“In my view, the motion judge erred in her analysis in one principal respect. The burden on the appellant under s. 137.1(4)(a)(ii) is not to show that a given defence has no hope of success. To approach s. 137.1(4)(a)(ii) in that fashion risks turning a motion under s. 137.1 into a summary judgment motion. Rather, all that the appellant need show is that it is possible that the defence would not succeed”4 [emphasis added].
The Takeaway: The “no valid defence” requirement is just one of the hurdles faced by respondents to a s. 137.1 motion (they must also show that their claim has “substantial merit” and that the balancing of public interest considerations weighs in their favour). However, by setting the bar so high at the “no valid defence” stage of the test—essentially requiring the respondent to show that no possible defence to the claim could exist—the motion judges in Bondfield and Lascaris arguably made it impossible for a respondent to defeat a s. 137.1 motion, except in the most obvious cases (assuming the moving party first discharged their burden). In these decisions, the Court of Appeal has reinforced that s. 137.1 is only intended to be a judicial “screening” device. It is not a substitute for summary judgment, particularly when such motions are brought at an early stage of the proceeding, before significant evidence has been marshalled.
1 Lascaris, para. 23.
2 Bondfield, para. 10.
3 Bondfield, para. 15.
4 Lascaris, para. 33.