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Anti-SLAPP Applications

		
Introduction


“SLAPP” is an acronym for “strategic litigation against public participation.”


The Supreme Court of Canada explained in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at paragraph 2 that “SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.”


The decision of the Supreme Court of Canada in Pointes Protection and its companion decision in Bent v Platnick, 2020 SCC 23 ruled on the interpretation and application of Ontario’s “anti-SLAPP” legislation which came into force in November, 2015 – the Protection of Public Participation Act, 2015, S.O. 2015, c. 23.  That statute added new ss. 137.1 to 137.5 to Ontario’s Courts of Justice Act, RSO 1990, c. C-43. 


British Columbia copied the Ontario legislation and adopted the Protection of Public Participation Act, SBC 2019, c. 3 which applies to legal proceedings commenced on or after May 15, 2018.


Quebec is the only other Canadian jurisdiction which has enacted anti-SLAPP legislation.  That is embedded in articles 51-54 of the Code of Civil Procedure, CQLR c C-25.


Ontario and British Columbia Anti-SLAPP Provisions:  The Basics 


In Ontario and British Columbia, a defendant may apply to a judge for an order dismissing a legal proceeding that arises from an expression made by the defendant that relates to a matter of public interest.


“Expression” is any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.


“Public interest” is given a broad and liberal interpretation.


In these circumstances, the judge must grant the defence application and dismiss the legal proceeding unless the plaintiff satisfies the judge that,


    

  1. there are grounds to believe that,

      

    1. the proceeding has substantial merit, and
      2. 

    2. the moving party has no valid defence in the proceeding; and
      3. 

    

    2. 

  2. the harm likely to be or have been suffered by the responding party 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.”
    3. 



Grounds to Believe Substantial Merit


Any basis in the record and the law will be sufficient. A basis will exist if there is a single basis in the record and the law to support a finding of substantial merit and the absence of a valid defence. The basis must be legally tenable and reasonably capable of belief.  Bent, para. 88.


“Substantial merit” means a real prospect of success; a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff.  Bent, para. 90.


Evidence of actual reputational damage is not necessary at this stage, given that actual harm to reputation is not required to establish defamation.  Bent, para. 96.


Grounds to Believe No Valid Defence


The plaintiff is required to show that there is a basis in the record and the law — taking into account the stage of the proceeding — to support a finding that the defences the defendant has put in play do not tend to weigh more in the defendant’s favour.  Bent, paras. 103, 105.


Weighing the Public Interest – The crux of the Analysis


The magnitude of reputational harm is important in assessing whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.  General damages in a nominal sense will ordinarily not be sufficient.  Bent, para. 144.


Neither a definitive determination of harm or causation nor a fully developed damages brief is required. The plaintiff must simply provide evidence for the court to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link.  Bent, paras. 145, 154.


In addition to the monetary harm alleged by a plaintiff, a court will also consider the reputational harm to the plaintiff, even if it is not quantifiable by the time of the application. Therefore, the harm need not be monetized, as both monetary and non-monetary harm can be relevant to demonstrating the existence of harm.  Bent, paras. 148, 149.


Once the existence of harm is established, the next question depends on whether that harm was suffered as a result of the defendant’s expression.  Causation is not an all-or-nothing proposition. Even if the causal link between the defamatory statement and some elements of the harm suffered by the plaintiff is tenuous, a plaintiff will satisfy their burden if they establish a sufficient causal link between the publication and some elements of the harm suffered by the plaintiff and the harm is sufficiently serious to establish a weighty public interest in permitting the proceeding to continue.  Bent, paras. 151, 159.


The public interest in protecting expression can be determined by reference to the core values that underlie s. 2(b) of the Canadian Charter of Rights and Freedoms, such as the search for truth, participation in political decision making, and diversity in forms of self-fulfilment and human flourishing.  Bent, para. 163. 


Consideration must be given to the “chilling effect on future expression” and the “broader or collateral effects on other expressions on matters of public interest”.  Bent, para. 165.


Defamatory statements are very tenuously related to the core values which underlie s. 2(b). There will be less of a public interest in protecting a statement that contains gratuitous personal attacks and the motivation behind the expression will be relevant to the inquiry.  Bent, para. 163.


In determining the public interest in protecting the expression, the court will consider whether the expression consisted of a personal attack against the plaintiff which cast doubt on his or her professional competence, integrity, and reputation, and whether the defendant ever reached out to the plaintiff to confront the plaintiff or to investigate the allegations against the plaintiff.  Bent, para. 164.


The court may consider whether permitting the plaintiff’s defamation claim to proceed would deter others from unnecessarily singling out an individual in a way that is extraneous or peripheral to the public interest, deter others from making defamatory remarks against an individual without first substantiating, or attempting to substantiate, the veracity of their allegations, or incentivize them to act with reasonable due diligence and to tailor their expression so as to avoid needlessly defaming an individual who depends on their reputation for their livelihood.  Bent, para. 167.


The court will seek an appropriate balance between freedom of expression and reputational considerations, which the Supreme Court of Canada has historically strived to optimize: good reputation reflects the innate dignity of the individual, a concept which underlies all the Charter rights. The protection of reputation must be carefully balanced against the equally important right of freedom of expression.  Bent, para. 168.


Under this legislation, courts have the power to scrutinize what is really going on in the particular case before them and determine whether it comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage. The court may ask whether it is a case in which one party is vindictively or strategically silencing another party, or a case in which one party is attempting to remedy seemingly legitimate harm suffered as a result of a defamatory communication.  Bent, para. 172.


See also Roger D. McConchie, Canada’s experimental ‘protection of public participation’ statutes: What is really going on? (2023) 25 MALR 227


Article Abstract:


Judges in the Canadian provinces of Ontario and British Columbia are now empowered by ‘anti-SLAPP’ statutes to dismiss, on a case-by-case basis, legitimate defamation lawsuits where the defendant has no viable defence. The threshold requirement for the exercise of this broad judicial discretion is that the lawsuit ‘arise from expression that relates to a matter of public interest’. A plaintiff facing a defendant’s anti-SLAPP application has the onus of  proving that the public interest in vindicating the plaintiff’s reputation outweighs the public interest in protecting freedom of expression. This judicial weighing process seldom admits of obvious answers. There is a huge and ever-growing body of case-law under the Ontario and BC anti-SLAPP statutes. Anti-SLAPP applications that involve meritless defamation lawsuits filed by powerful, wealthy plaintiffs to silence or deter public criticism are rare. Anti- SLAPP hearings tend to be time-consuming, complex and expensive. Anti-SLAPP applications are probably incentivised by the punitive costs provisions in the statutes, which presumptively entitle successful applicants to full indemnity for their legal costs but presumptively disentitle plaintiffs from recovering costs when they are successful in resisting dismissal. The Ontario and British Columbia statutes prohibit any further steps in the defamation litigation until all appeals have been finally determined, resulting in many defamation lawsuits remaining frozen for years.