September 17th, 2018
The Ontario Court of Appeal recently released a handful of new opinions about the application of Ontario’s Anti-SLAPP legislation. The Protection of Public Participation Act, 2015 came into force in late 2015, but these decisions are the first time that the Court of Appeal has had a chance to address the new laws. The Protection of Public Participation Act amended several statutes, but the Court of Appeal focused exclusively on the additions to the Courts of Justice Act. Ss. 137.1-137.5 create a new pretrial procedure where a defendant can move to have the claim against them struck out early in the litigation if the claim arises out of expressions on matters in the public interest. The court heard six appeals together and are releasing separate judgments for each case, beginning with 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685., where the court laid out the framework they use to analyze all six cases.
At its core, this new procedure is designed to protect defendants from SLAPPs. A SLAPP (or Strategic Lawsuit Against Public Participation) is a claim begun by a person or organization that targets their critics. These lawsuits are often brought, not in anticipation of winning, but with the twin goals of wearing down the defendants with litigation costs and discouraging others from speaking up against the plaintiff. These lawsuits have traditionally been viewed negatively as they are seen as combining an abuse of process with frivolous litigation; several jurisdictions in Canada have taken action to prevent them. The Protection of Public Participation Act was Ontario’s legislative response to the phenomenon.
The Court of Appeal’s decision in 1704604 Ontario Ltd sets out the test that will be used in the future to dismiss SLAPPs. The plaintiff in the case, the SLAPPer, is a numbered corporation which was incorporated to develop a subdivision in Sault Ste. Marie. The defendant Pointes, the SLAPPee who brought the motion under s. 137.1 of the CJA, is a non-profit corporation incorporated to respond to the subdivision plans on behalf of local residents. Following the decision of the Sault Ste. Marie Region Conservation Authority to allow the subdivision, Pointes sought judicial review of the decision. Meanwhile, the permission from the Sault Ste. Marie City Council to build the subdivision was refused and 170 Ontario began its own appeal to the Ontario Municipal Board. The first judicial review was eventually settled. Included among the terms of the settlement was a requirement that Pointes and its individual members not begin or continue any further proceedings alleging that there were errors in the Conservation Authority decision. During the hearing before the Ontario Municipal Board, the president of Pointes, Peter Gagnon, testified about the damages that the proposed subdivision would do to local wetlands. Following the hearing, 170 Ontario’s appeal was dismissed and the subdivision did not go forward.
Six months after the OMB dismissed its appeal, 170 Ontario sued Pointes and several of its individual members for breach of contract, claiming that the testimony at the OMB hearing violated the settlement agreement. Though there was no provision in the settlement agreement forbidding Pointes from testifying about the wetlands, 170 Ontario claimed that it was an implied term. Instead of filing a defence, Pointes began a motion under s.137.1 to have the claim dismissed.
The Court of Appeal set out the test they would use to address s.137.1 motions before applying it to the facts of the case. The court held that s.137.1(3) creates a threshold test for the applicant (the defendant in the main action): the applicant must satisfy the judge on a balance of probabilities that the proceeding arises from an expression that relates to a matter of public interest. As long as the subject matter is in the public interest, there’s no need to show that the expression was of any particular value, or even that it was the truth. The expression as a whole, taken in context, must be about a subject matter in the public interest. Once the applicant has shown that the expression related to a matter of public importance, the burden switches to the respondent to meet the requirements set out in s.137.1(4).
The respondent must meet two separate tests in order to avoid having their action dismissed. First, the respondent must show that there are reasonable grounds to believe that there is merit to their claim and that there are no valid defences available to the defendant. The court will engage in a limited weighing of evidence and credibility in coming to their conclusions. It is important to know that the motion judge is not determining whether the case or defences actually have merit, but whether a reasonable trier could find that the claim has a real chance of success or that there were no applicable defences.
The Court of Appeal described the second test as the heart of the Anti-SLAPP legislation. The respondent must satisfy the motion judge that the harm resulting from the expression at issue is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. This balancing test will mean that in some cases, claims that might otherwise succeed at trial will be dismissed as they have a disproportionate impact on free expression. The public interest inquiry is qualitative at this stage; some expressions serve the public interest more than others. This is also where evidence of a libel chill would be put forward by the applicant. Evidence that shows that the allowing the main action to proceed will scare people away from expressing themselves on related matters will weigh heavily in favour of the action being dismissed at this stage.
The Court of Appeal held that there was no dispute that the action was related to an expression by Pointes on a matter of public interest. The court then held that 170 Ontario failed to show that their claim had any merit, as no reasonable trier would accept that there was an implied term of the Conservation Authority settlement forbidding Pointes from testifying at the ongoing OMB hearing. The court also held that the harm 170 Ontario suffered was minor and outweighed by the public interest in the testimony. The Court of Appeal overturned the motion judge’s decision and granted Pointes’ motion to dismiss 170 Ontario’s claim.
In another case, Platnick v Bent, 2018 ONCA 687, the Court of Appeal applied the same reasoning to dismiss a motion under s.371.1 and send the proceeding back to trial. The Plaintiff, Dr. Howard Platnick, sued the law firm Lerners LLP and a partner at the firm after an allegedly defamatory email sent to a group of other trial lawyers was leaked. The email indicated that Dr. Platnick had deceitfully misrepresented expert findings in his report on behalf of an insurance company. The motions judge had dismissed Dr. Platnick’s claim on a s.137.1 motion.
The Court of Appeal reversed the motions judge’s decision, finding that there was merit to Dr. Platnick’s claim and that the motions judge had held Dr. Platnick to too strict a standard of proof. The motions judge was not to decide the merits of the case, but exclusively decide if a reasonable trier could conclude that there was a real chance of establishing libel and that there were no valid defences. The court held that “the issue for the motion judge is not the ultimate strength of the claim or the believability of the plaintiff, but only whether the record provides a reasonable basis for believing the claim has substantial merit and that there is no valid defence.”
The Court of Appeal’s decisions provide a useful framework for applying the Anti-SLAPP legislation. Once it can be shown that a proceeding is related to an expression about a matter in the public interest, it falls to the plaintiff to show that their claim has merit. This will help prevent meritless SLAPPs designed to waste defendant resources. However, the balancing test will ensure that even cases with some merit, which are begun to stifle free expression where no harm was suffered, will be dismissed without a full trial.