Commercial Litigation and Dispute Resolution Blog

The Supreme Court of Canada rules on anti-SLAPP motions and articulates a test with multiple stages, shifting burdens, differing standards of proof, and the weighing of expression in the public interest. 

On September 10, 2020 the Supreme Court of Canada released two SLAPP-suit (Strategic Lawsuits Against Public Participation) decisions, providing guidance on the requirements for bringing and defending an anti-SLAPP motion.

The legislatures of Ontario, British Columbia, and Quebec have enacted laws to provide recourse against SLAPP suits. Rather than pursue legitimate justiciable claims, SLAPP suit plaintiffs manipulate the judicial system to limit and deter the speech of their critics and consume the critic’s time and money in defending a lawsuit. Ultimately, SLAPP suits chill the debate on matters of public interest and stifle expression on important issues in society. With anti-SLAPP legislation, however, a defendant can bring an expedited application seeking to dismiss the lawsuit against them at an early stage of the litigation.

The SCC’s decisions in 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22 (“Pointes Protection”) and Bent v Platnick, 2020 SCC 23 (“Bent”) concern Sections 137.1 to 137.5 of the Courts of Justice Act, RSO 1990, c C 43 (“CJA”) and provide guidance on how motion judges can interpret anti-SLAPP legislation.

This blog post provides an overview of Pointes Protection, where the unanimous SCC, in reasons written by Côté J, outlined the applicable test. A subsequent blog post will discuss Bent, the divided Court in that decision, and implications for anti-SLAPP motions and defamation law.

The Dispute

170 Ontario (the plaintiff and responding party) was a land developer. Pointes Protection Association (“PPA”) (the defendant and moving party) was a community NGO created for the purpose of advocating for residents’ concerns (particularly environmental concerns) about the proposed land development applied for by 170 Ontario.

The parties had entered into an agreement resolving certain disputed issues in which PPA agreed to limitations on its future conduct, such as agreeing not to commence further court proceedings seeking the same or similar relief, among others. Around the same time, 170 had brought an application for City Council approval for its development which was rejected. 170 appealed that decision to the Ontario Municipal Board (“OMB”), where PPA was granted standing to participate. The President of PPA testified at the OMB appeal that the proposed development would result in the loss of wetland area and environmental damage. The OMB eventually dismissed the appeal.

170 Ontario then brought a lawsuit against PPA alleging that PPA breached the agreement by giving testimony at the OMB—claiming $6 million in damages. PPA brought a Section 137.1 motion to dismiss the lawsuit.

The Test

The test is set out in s 137.1 of the CJA:

(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.

The Moving Party’s Burden: Section 137.1(3)

The moving party (typically the defendant) has the initial burden to satisfy the judge that (i) the proceeding arises from an expression made by the moving party, and (ii) that the expression relates to a matter of public interest.

The Court canvassed the statutory meaning of each requisite element:

• First, the Court held that the word “satisfies” means the moving party must establish its test on a balance of probabilities.
• Second, “expression” is expressly defined in s 137.1(2) as “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”, which the Court noted was defined “expansively”.
• Third, “arises from” was given a broad and liberal interpretation to mean that the proceeding need not arise directly from the expression (like defamation lawsuits) but may also arise from those such as the underlying proceeding which concerned a breach of contract. This interpretation means that s 137.1 motions are applicable to a broad array of proceedings, the extent of which will be determined in future decisions.
• Fourth, “relates to matters of public interest” was also given a broad and liberal interpretation, where the Court drew on its prior consideration of “public interest” in Grant v Torstar, 2009 SCC 61 (a decision that established the responsible communication in the public interest defence to defamation). As such, it is likely that “matters of public interest” here will draw upon defamation law (and vice versa) as this test is harmonious. Significantly, the Court noted that there should not be a qualitative assessment of the expression at this stage (adopting a content-neutral approach to the expression). This means that expression on matters in the public interest, even if it is deleterious to the public interest, still falls into the definition of “expression” at this stage.

The Responding Party’s Burden: Section 137.1(4)(a)(b)

Once the moving party meets that burden, the responding party (typically the plaintiff) must satisfy the judge that (i) there are grounds to believe the proceeding has substantial merit, (ii) the moving party has no valid defence, and (iii) that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. The moving party must establish all three elements of this test. A failure to establish one is fatal.

The standard of proof required in s 137.1(4)(a) of the responding party is different than the initial standard required by the moving party in s 137.1(3). The Court reached this conclusion noting that the words “satisfies the judge” is qualified by the words “grounds to believe”. As such, “grounds to believe” means there must be a basis in the record and the law for the motion judge to find that the underlying proceeding has substantial merit and that there is no valid defence. The test is subjective, based on whether the motion judge has grounds to believe, not based on a reasonable trier, as the actual motion judge has express discretion and authority.

What then does “substantial merit” mean?

The Court found that “substantial merit” means something more than a “frivolous” lawsuit or suit with only “technical” validity, but does not require showing a likelihood of success—what is instead required is for the responding party to show a “real prospect of success”. This finding is key. The Court expects the parties to put forward a record that goes beyond the parties’ pleadings. Actual evidence “that is reasonably capable of belief” is required, and the Court will not be persuaded by bald allegations that are unsupported by evidence (the legislative scheme allows limited cross-examination of affiants, whereby the motion judge could resolve potential conflicts in the evidence).

And what then does “no valid defence” mean?

The moving party’s role is not done yet. Since the responding party need not anticipate all defences that must be raised, the moving party has an obligation to put the defences it intends to assert in play. In its third decision on standard of proof, the Court held that the responding party must then show the defences are not valid—meaning the defences put forth by the moving party are not legally tenable or supported by evidence reasonably capable of belief such that they can be said to have “no prospect of success”. Again, the motion judge needs to engage in an assessment of the evidence—hence the importance of bringing a record.

The Proportionality Assessment

If the first two prongs are established (there is substantial merit to the claim and no valid defences) then the motion judges undertakes a proportionality assessment:

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.

The Court referred to this as the “core” of the analysis. With that said, it should not detract from the responding party’s obligation to prove s 137.1(4)(a). The Court referred to it as a “weighing” exercise, since the language expressly states that one consideration “outweighs” the other (and not merely be “balanced” with each other).

The standard also shifts again—the responding party must establish Section 137.1(4)(b) on a balance of probabilities.

Harm and causation of harm

The respondent must show (i) the existence of harm (monetary or non-monetary), and (ii) that the harm was caused by the moving party’s expression. The responding party need not prove harm, but again, must provide an evidentiary foundation that would enable the motion judge to infer the existence of harm and the causal link. Evidence of causality will be particularly important where there may be other causations of the harm the plaintiff alleges.

Weighing the public interest

If harm and causal link are established, the motion judge must weigh the harm and public interest in the proceeding continuing against the public interest in protecting the expression. The “public interest” here is not the same as determining whether the “matter” is of public interest as part of the moving party’s burden to establish Section 137.1(3) – instead the judge will now take into account the quality of the expression and the motivation behind the expression. The judge’s weighing of the expression here is no longer content neutral.

If the expression is closer to the core values underlying freedom of expression (being the search for truth, participation in political decision making, and diversity in forms of self-fulfillment and human flourishing), it will more likely be protected. The Court also identified other factors including:

• the importance of the expression;
• the history of the litigation between the parties;
• broader or collateral effects on other expressions on matters in the public interest;
• the potential chilling effect on future expression either by a party or by others;
• the defendant’s history of activism or advocacy in the public interest;
• any disproportion between the resources being used in the lawsuit and the harm caused or the expected damage award; and
• the possibility the expression or the claim might provoke hostility against an identifiably vulnerable group, a group protected under Section 15 of the Charter (being the equality provision), or human rights legislation.

The Court noted that the “indicia of a SLAPP suit” factors (outlined by the Ontario Court of Appeal) may be relevant, so long as they are “tethered” to the Section 137.1(4) test calling for consideration of the harm suffered or potentially suffered by the plaintiff, the corresponding public interest in allowing the underlying proceeding to continue, and the public interest in protecting the underlying expression. Those factors are:

• “a history of the plaintiff using litigation or the threat of litigation to silence critics”;
• “a financial or power imbalance that strongly favours the plaintiff”;
• “a punitive or retributory purpose animating the plaintiff’s bringing of the claim”; and
• “minimal or nominal damages suffered by the plaintiff”.

The Decision

The Court ultimately found that the PPA established expression relating to a matter in the public interest and the proceeding “arose from” that expression. It then found that the 170 Ontario’s claim lacked substantial merit (the Court found that because 170 Ontario’s interpretation of the agreement was not legally tenable, it was inevitable that it could not establish that PPA had no valid defences). It then found that the harm likely to have been suffered by the plaintiff was outweighed by the public interest in protecting the moving party’s expression. This is a significant decision as it confirms that a Section 137.1 motion can be successfully brought in actions outside of the defamation context, the context in which SLAPP suits have typically arisen.

Key Points

1. The parties must bring a record with evidence that is reasonably capable of belief. Bald assertions without an evidentiary foundation will likely not fly.
2. The responding party should bring evidence of the existence of harm and causality, particularly if there may be other causes of the harm.
3. However, a s 137.1 motion is not like a summary judgment application where the parties are meant to put their “best foot forward”; because s 137.1 motions happen expeditiously, the parties are limited in the evidentiary record they put forward.
4. What is a “matter of public interest” melds with the law on that area from the defamation context and the defence of responsible communication in the public interest—that case law will likely be applicable and prove helpful in Section 137.1 motions.
5. The imprecision in language for the standard of what is required to show substantial merit and valid defences (which is inherent in most legal standards, to either the bane or excitement of lawyers) will likely be debated and crafted going forward.
6. The Court emphasizes the proportionality assessment is at the “core” and “crux” of s 137.1. The Court’s language here, however, could result in lower courts lowering the responding party’s obligation to prove s 137.1(4)(a) and instead deciding the issue in s 137.1(4)(b) proportionality assessment—which should be avoided—since the proportionality assessment does not have greater weight or emphasis than s 137.1(4)(a).

In the next blog post, we will look at the 5-4 split decision in Bent, the discrepancy in applying the “no valid defence” and “substantial merit” queries, and whether the court has altered the defence of qualified privilege in defamation.