Small claims court judges have little sway on anti-SLAPP cases

Small claims court deputy judges can’t grant orders under an Ontario law meant to prevent proceedings that limit freedom of expression on matters of public interest.

It’s an important decision regarding strategic lawsuits against public participation, or SLAPPs, says a lawyer who worked on the case.

The Court of Appeal for Ontario said in a July 12 decision that deputy judges don’t have authority to grant orders under s. 137.1 of the Courts of Justice Act, which sets out when a judge can dismiss a proceeding that “limits debate.”

Ottawa lawyer Paul Champ is principal of Champ & Associates, and represented plaintiff and appellant Sean Bruyea. Champ says the decision, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, is a message to the bar that anti-SLAPP motions shouldn’t be overused, particularly in the small claims court context.

“The interesting takeaway for lawyers as a matter of practice is that small claims court shouldn’t be the venue for anti-SLAPP motions,” says Champ.

The dispute before the court was the jurisdiction of judges to use s. 137.1 of the CJA, which aims to “encourage individuals to express themselves on matters of public interest; to promote broad participation in debates on matters of public interest; to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.”

The defendants in the case were Seamus O’Regan, then Minister of Veteran Affairs, and the Attorney General of Canada, and the Attorney General of Ontario also made written submissions.

Bruyea sued O’Regan for defamation in Ottawa Small Claims Court, claiming damages of $25,000. Bruyea wrote an opinion article in February 2018 saying the then-new Liberal plan for veterans was “all about saving money, yet again, at the expense of veterans,” and called the plan deceptive and “[s]adistically procrastinating.” In a response article in the same publications, the minister wrote that “individuals like Sean Bruyea, who are stating mistruths about Pension for Life and are leaving out parts of our programs, are doing so to suit their own agenda.”

Minister O’Regan's office said in an e-mail that it had received the court decision and is taking time to study it and consider next steps.

"Our government doesn't take Veterans to court," O’Regan's statement said. "When I was Minister of Veterans Affairs, I made it my job to speak to Veterans across the country about the new programs and services available to them and their families. Sometimes these conversations were difficult, but they were always valuable and we remain open to different viewpoints."

Deputy judge David Dwoskin wrote that Bruyea had not provided evidence that his reputation was harmed, and that the minister’s response article was “to be expected and was both measured and reasonable.” Dwoskin dismissed the action in an August 2018 decision.

“The defences of fair comment, qualified privilege and responsible communication on matters of public interest may be defeated if the plaintiff proves, on a balance of probability, that the defendants were motivated by malice. In my view, he has not done so here,” Dwoskin wrote. “The plaintiff has not shown that there is credible, compelling

evidence that the Minister’s articles were anything but responsible reasonable communication on a public issue (the merits of the Pension for Life Plan) intended to influence public opinion on that issue.”

But the appeal decision, written by Justice Ian Nordheimer, with Justices Peter Lauwers and Michal Fairburn concurring, questioned Dwoskin’s authority to make the order.

“Either deputy judges have been given the authority to provide certain relief, or they have not. It is not for the court to find authority where the Legislature has chosen not to clearly provide it,” Nordheimer wrote. “In the end result, it would have been open to the Legislature to expressly provide in s. 137.1 that deputy judges of the Small Claims Court could grant orders under that section. The Legislature chose not to do so …. It is not for this court to strain the language of the section to provide a power to deputy judges that the Legislature did not, itself, plainly choose to provide.”

Although the parties in the case all argued the small claims court has an important role in access to justice, Nordheimer said that anti-SLAPP is actually “provision that is intended, in proper circumstances, to prohibit access to the courts.”

“[A]ll of the parties place great emphasis on the fact that the Small Claims Court is intended to provide for simpler and less expensive litigation. They argue that the powers of a deputy judge should be given broad and expansive interpretation to encourage access to justice. With respect, such policy arguments cannot override the plain words of the statute,” Nordheimer wrote.

Champ says that the case is an unusual use of anti-SLAPP in that it involved a citizen bringing a defamation motion against the party perceived to be more powerful. Since the small claims court decision in this case, the courts have made a slew of other decisions clarifying the limits of anti-SLAPP legislation, Champ says.

“For my client, it’s a good thing, his claim will be tried on his merits,” says Champ. He says that his client’s case will return to small claims court, but if another anti-SLAPP motion is brought, the small claims court will have to swap a deputy judge out in favour of a superior court judge.

“It will create in the future an administrative burden on small claims courts across the province. Deputy judges are really the only ones hearing cases in small claims court, but now it will have to be a superior court judge.”