2025 March 6

Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171

In this defamation action, the Ontario Court of Appeal unanimously set aside a lower court ruling which dismissed this lawsuit pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C43.

S. 137.1, which is commonly described as anti-SLAPP legislation, reads in material part as follows:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that
(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding: and

(b) 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.

 Finding the lower court should have dismissed the defendants’ anti-SLAPP application, the Ontario Court of Appeal expressed strong criticism of s. 137.1:

[14] Section 137.1 of the Courts of Justice Act is poorly drafted and confusing.  It has led to much litigation, which is ironic since its express purposes are to discourage the use of litigation as a means of unduly limiting expression on matters of public interest and to promote public participation in debates on such matters: ss. 137.1(1)(b)and (c).  The Byzantine operation of the section has been criticized.  In short, s. 137.1 is in desperate need of a makeover, if not repeal and replacement.

[MLC bolding and underlining for emphasis]

 [McConchie Law Corporation Note: This decision is relevant to the interpretation of British Columbia’s anti-SLAPP legislation which substantially mirrors s. 137.1]

Further along in its judgment, the Court of Appeal described the language of section 137.1 as “obtuse and difficult to follow” and characterized s 137.1(4)(a)(ii) as the “most problematic” provision [“the moving party has no valid defence in the proceeding”].

In this lawsuit, the plaintiff builder sued the defendant homeowners over derogatory comments they posted on social media following a renovation project.  In finding that the defendant homeowners’ expression did not relate to a matter of public interest, the Court of Appeal stated that “the online reviews posted by the [defendants] reflect no more than an especially bitter private dispute. Consequently, although some members of the public might find it interesting, it is not a matter of interest under s. 137.1.  The expression at issue does not engage some broader societal concern … nor … does it fall within the types of expression that were intended to be captured by the provision.” “The Homeowners’ statements concerned a home renovation gone wrong.  The postings did not relate to a matter of public interest or to safeguarding the fundamental value of public participation in a democracy, to which personal attacks and defamatory statements are only remotely related.  This was a private dispute.” “Statements that are exaggerated, inaccurate or contain deliberate misrepresentations also reduce the public interest in protecting them…This is a case in which the straight logic of a private dispute should apply.  Section 137.1 does not apply.”

Noting that free expression is not unlimited, and that one constraint is defamation law, the Court stated that social media is not a defamation-free zone nor do participants consent to the risk of being defamed.

With respect to the provision concerning “no valid defence” [s. 137.1(4)(a)(ii)], the Court of Appeal noted that a plaintiff need only show grounds to believe that the defences do not tend to weigh more in the defamation defendant’s favour.  In a defamation action, the phrase “no valid defence” should not be applied literally.  “[A] defamatory statement might be true at some level, but the problem is less the truth of the statement than what has sometimes been referred to as the ‘sting’ of the words, evident in the presence of malice.”  Further, a literal approach “raises the stakes in an anti-SLAPP motion and encourages the development of an enormous record exploring every possible defence at length.  Such a comprehensive approach is completely inconsistent with the intended summary nature of anti-SLAPP motions.” “[T]he preferable approach to take to anti-SLAPP motions in defamation actions, where it is not immediately clear there is no valid defence, is to move smartly to the weighing exercise in s. 137.1(4)(b)…[which]…is intended to be the ‘fundamental crux’ of the court’s analysis.”