The Litigator

THE LITIGATOR

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The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

Test for Anti-SLAPP Motions Reaffirmed by the Ontario Court of Appeal

The law has struggled to balance the right to freedom of expression ingrained in our Charter of Rights and Freedoms with protecting the public from . In an effort to maintain this balance, the Ontario Legislature put in place s.137.1 of the Courts of Justice Act (“CJA”), which is Ontario’s version of anti- legislation. is an acronym for “Strategic Lawsuit Against Public Participation” and the purpose of the anti- legislation is to make it harder to misuse litigation to chill criticism that is in the public interest.

Section 137.1 of the CJA allows a defendant to a suit to expeditiously have the claim dismissed early in the proceedings, but only if they can satisfy a judge that the statements in issue relate to a matter of public interest. Once the defendant establishes the statement was a matter of public interest, the Judge may not dismiss the claim, if (second step) the claim has merit and defendant does not have a valid defence to the claim or (third step) if the harm done by the statement is so severe that it outweighs the right to make the statement.

In 2018, the Ontario Court of Appeal released several decisions clarifying the test, including 1704604 Ontario Ltd. v. Pointes Protection Association. These decisions were reaffirmed by the Ontario Court of Appeal in December in Ontario College of Teachers v. Bouragba, 2019 ONCA 1028.

Mr. Bouragba was member of the Ontario College of Teachers (the “College”). Mr Bouragba also made some complaints to the College relating to members of the College but did not agree with how the College disposed of those complaints.

Mr. Bouragba sent communications to members of the council saying they were dishonest, colluded, took action against members for improper reasons, were biased, and accused the College of harassing and discriminating against students, parents, and members. The College initiated this Claim alleging that the statements were . In response, Mr. Bouragba brought a motion to dismiss the claim pursuant to s.137.1 of the CJA. The motion judge decided that Mr. Bouragba’s complaints were private grievances and therefore were not a matter of public interest.

The Court of Appeal overturned this decision. In assessing the claim under s.137.1 of the CJA, the Court of Appeal wrote that the motive of the speaker is irrelevant in the assessing whether the statement was a matter of public interest. The Judges went on to acknowledge that any statement may touch on a number of matters and that if even one of those matters is “a matter of public interest”, that is sufficient to meet the first stage of the test. The Court clarified that the question of whether there was merit to the claim was to be dealt with in the subsequent steps of the test.

Although in this case, Mr. Bouragba may have had some personal motive in making the statements, his communication also related to matters of public interest, such as the manner in which appointments are made to the committees of the College, the preferential treatment of school board employer complaints, and conflicts of interests.

While this decision keeps the bar low for proving that a statement was a matter of public interest, a judge must still consider the merit of the claim and whether the defendant has a valid defence at the following step of the test. The judge may also take into account the motive of the speaker when balancing the competing interests in the third step of the test. It is these steps of the test that will remain the biggest hurdle for defendants seeking to dismiss a defamation claim under s. 137.1.

Karen Bernofsky
Affleck Greene McMurtry LLP

Karen Bernofsky

Karen Bernofsky is a strong advocate with a focus on commercial litigation and delivering cost-effective solutions. She advises and represents clients in a broad range of complex insurance matters, construction matters and commercial disputes, including breach of contract and invoice disputes. Karen is also a skilled negotiator with a proven track record in effective mediation advocacy. She has appeared before all levels of courts and administrative tribunals in Ontario as well as before the Federal Court of Canada.

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