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Decision answers questions on SLAPP suits

|Written By Aidan Macnab
Decision answers questions on SLAPP suits
Kevin O’Brien says in earlier cases involving anti-SLAPP motions, many felt the legislation was interpreted in a way that made it too easy for defendants to earn a dismissal.

Ontario’s new anti-SLAPP legislation was tested in the Court of Appeal, with six rulings released Thursday, four of which were deemed strategic lawsuits against public participation. 

The purpose of the anti-SLAPP legislation is to encourage public dialogue and debate with broad participation on matters of public interest, to prevent litigation aimed at stifling public discourse and prevent a chill from the threat of legal action harming public debate.

The cases involving the anti-SLAPP law were heard by Justice David Doherty, who wrote the decision, Justice David Brown and Justice Grant Huscroft.

“This was the rigorous appellate analysis of the legislation that people were looking for,” says Kevin O’Brien, partner at Osler Hoskin & Harcourt LLP.

The decision “answered the big legal questions,” he says, and “appropriately set out and summarized what the purpose of the legislation was and given meaning to those provisions, in a way that helps to achieve the balancing that the legislation tried to strike. . . . most importantly, what the appropriate burden of proof was.”

David Elmaleh, partner at McCague Borlack and chairman of the firm’s defamation and reputation management practice group, says these decisions mean “anti-SLAPP legislation in Ontario is alive and well.”

“Expression on matters of public interest is to be encouraged. Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage,” Doherty wrote in the decision.

Particularly intriguing, says Elmaleh, is that all six decisions were unanimous, despite the “intricate nature of the legislation and the many issues and components of the legal test.”

A defendant can bring an anti-SLAPP motion at the beginning of the trial before they have filed a statement of defence. When having done so, the defendant has to satisfy the judge that the suit has arisen from an expression that relates to a matter of public interest.

It is then up to the plaintiff to refute the public interest argument, show the proceeding has “substantial merit,” show the defendant is without a valid defence for claim of libel and show the harm of the defendant’s action renders the public interest in permitting the proceedings greater than the public interest of protecting the expression.

The court has confirmed the appropriate legal standards by which the plaintiff shows his claim has substantial merit and the defendant has no reasonable defence as a “regular balance of probability standards,” says O’Brien.

The plaintiff’s onus to show the claim has substantial merit and the defendant is without a valid defence raises the question of whether these two aspects “are within the range of reasonable conclusions, available on the record,” says Ben Kates, associate at Stockwoods LLP Barristers.

“I think there’s a question that remains as to how that analysis is going to play out,” he says.

Also remaining unanswered, says Kates, is the competing interests between the public interest of permitting the proceedings and that of protecting the expression.

“The public interest evaluations required under s. 137.1(4)(b) cannot be reduced to an arithmetic-like calculation. It would be misleading to pretend they can be. The assessments are qualitative and, to some extent, subjective,” wrote Doherty in the decision.

“How is that analysis, which the Court of Appeal admits contains an element of subjectivity, how that’s going to be fleshed out, particularly given the signal from the court that the balancing of competing public interests will often be determinative of the outcome of the anti-SLAPP motion.”

O’Brien says Doherty made it clear in the decision that “most of these cases” will turn on the second element, where the onus is put back on the plaintiff. The decision makes clear that the plaintiff does not have to prove their opponent lacks a valid defence, they need to “show on the evidence that there’s reasonable grounds to believe that they may not be able to make out a defence,” O’Brien says.

Those claiming defamation “must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression,” Doherty wrote in the decision.

“That’s saying if you’re going to bring a claim that encroaches on freedom of expression and matters of public interest, you better be ready to defend that right away,” says Kates. “You can’t just sort of start these things willy nilly and not be answerable for them.”

In earlier cases involving anti-SLAPP motions, many felt the legislation was interpreted in a way that made it too easy for the defendants to earn a dismissal, says O’Brien.

“The key exercise in this legislation that a judge is asked to make is one of balancing,” says O’Brien.

“Not only is a legislation trying to balance the right of freedom of expression with the need for people to be able to defend and protect their reputation, but it’s also trying to balance how rigorous a standard a plaintiff has to meet in order not to have their action dismissed at an early stage.”

O’Brien says a SLAPP motion, which is made under s. 137.1(1) of the Courts of Justice Act, is not meant to be a replacement for a trial or summary judgment motion but to operate as a screening mechanism, so that unmeritorious claims are rejected at an early stage.

Doherty writes that judges must “avoid taking a ‘deep dive’ into the ultimate merits of the claim under the guise of the much more limited merits of the required analysis.”

In determining whether a matter is in the public interest, the motion judge is to apply the principles from the Supreme Court case Grant v. Torstar Corp.

Lawyers now have a framework with which they can advise their clients on the risks and chances of success when it comes to whether to commence litigation or bring an anti-SLAPP motion, Kates says. But the test will be developed over time in future decisions, he says.

“But like all of these cases, the facts are going to be what really matter. Every one of these decisions is going to be very fact specific,” says O’Brien. “But now we know we’ve had an appellate court affirm what the appropriate legal tests and standards are so everyone knows what the rules are.”


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