Ontario Anti-SLAPP Legislation: A Backgrounder
The first Anti-SLAPP [Strategic Lawsuit Against Public Participation] legislation in Ontario was introduced in December 2008 by way of a private member's bill. That Bill did not get past first reading: Bill 138, Protection of Public Participation Act 2008, 1st Sess., 39th Leg., Ontario, 2008. In 2010, Ontario struck an advisory panel to examine the SLAPP phenomenon and make recommendations as to the appropriate legislative response. In October 2010, that panel recommended Anti-SLAPP legislation: AntiSLAPP Advisory Panel, Report to the Attorney General (Ontario: Ministry of the Attorney General, 2010).
In November 2015, Bill 52, the Protection of Public Participation Act, 2015, came into force: S.O. 2015, c. 23 (the "Act"). The Act applied to any action commenced on or after December 1, 2014. The Act amended various statutes, including the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"). Section 3 of the Act introduced ss. 137.1 to 137.5 to the CJA. Those sections created a new pretrial procedure allowing defendants to move expeditiously and early in the litigation for an order dismissing claims arising out of expressions by defendants on matters of public interest.
The motivation for the Act arose because of of defamation cases in which the plaintiff’s goal was not to obtain compensation, but instead to drag a defendant into interminable and costly litigation as a form of retribution against the defendant for speaking out against the plaintiff. The goal was not to obtain justice; it was to exhaust, defeat and intimidate the defendant into staying quiet. Typically, the defendant had spoken out against the plaintiff on a matter of public importance.Before 2015, defendants had few avenues to quickly dismiss suits that were manifestly SLAPPs.
B.Protection of Public Participation Act, 2015
1. Motion to dismiss
Under the Act, a defendant can bring a motion to dismiss a SLAPP at the earliest stages of the litigation process. The idea is a simple one: to offer defendants relief from the crushing burden of dubious multi-million dollar claims brought by well-resourced plaintiffs.
The Actcreates an expedited process by providing that a motion brought under the Act“shall” be heard no later than 60 days after the notice of motion is filed with the court. For the Ontario civil litigation process, this is lightning speed; indeed, virtually no other type of civil motion is given this kind of fast-track treatment.
To have the proceeding dismissed, the defendant must first “[satisfy] the judge that the proceeding arises from an expression made by the [defendant] that relates to a matter of public interest” (what the Ontario Court of Appeal called the “threshold requirement,” s. 137.1(3)).
Once that onus is met, the original action must be dismissed unless the plaintiff can show:
(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.
A failure by the plaintiff to clear both hurdles will lead to a dismissal of its action.
If a judge dismisses a proceeding, the moving party [the defendant in the original proceeding] is entitled to costs on the motionandin theproceedingon a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. As Justice Doherty held in the appeal court decision(see below), that section of the Act“creates a starting point” whereby, if a defendant is successful on the motion, the judge should “start from the premise that the defendant should receive costs on both the motion and in the proceeding on a full indemnity basis” (as opposed to a partial indemnity basis, which is the norm). He noted that the ultimate discretion on costs still rests with the motion judge, and that the overriding concern that costs be “fair and reasonable” still applied. However, the “full indemnity starting point” was a clear statement from the Legislature that SLAPP actions are to be strongly disincentivized.
If, in dismissing a proceeding under this section, the judge finds that the responding party [the plaintiff in the original proceeding] brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.
If a judge does not dismiss a proceeding, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.
3. Further Protections for the Defendant in the Original Proceeding (SLAPP suit)
To further the aims of the anti-SLAPP legislation, the Actprovides that unless a judge orders otherwise, the responding party [the plaintiff in the original proceeding] shall not be permitted to amend their pleadings in the proceeding, (a) in order to prevent or avoid an order under this section dismissing the proceeding; or (b) if the proceeding is dismissed under this section, in order to continue the proceeding.
C. Appeal of first six decisions under the Act
The Ontario Court of Appeal heard six appeals of decisions under the new Act. Its substantive analysis of the key part of the Act(137.1) was set out in its decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685. It released its reasons concurrently in five other decisions in Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, Platnick v. Bent, 2018 ONCA 687, Veneruzzo v. Storey, 2018 ONCA 688, Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 and Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690. While the other five decisions address specific arguments raised in those appeals, they do not repeat the rigorous s. 137.1 analysisin Pointes.
January 5, 2019
For further information, contact:
James L. Turk
Centre for Free Expression
Cell: (613) 277-0488
1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685