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Civil Litigation - SLAPP - General (2). Gill v. Maciver
In Gill v. Maciver (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a defendant-successful SLAPP s.137.1 motion, here in yet another COVID Twitter vaccination dispute. Here, the court cites the 'anti-silencing' purpose of the SLAPP regime:[62] The motion judge found that the appellant’s defamation claim against the critics of her unorthodox views on effective treatment for COVID-19 was intended to silence those critics. As the motion judge found, correctly in my view, this is precisely the type of proceeding that s. 137.1 was designed to foreclose. . Volpe v. Wong-Tam
In Volpe v. Wong-Tam (Ont CA, 2023) the Court of Appeal considered a plaintiff's appeal from a successful SLAPP defendant's dismissal motion [under CJA 137.1], brought in response to the defendants being sued for defamation and related torts for bringing an municipal motion to stop advertising with the appellant's newspaper.
In this quote the court characterized the purpose of SLAPP procedures:[2] Section 137.1 seeks to prevent an abuse of process known as “strategic lawsuits against public participation” (“SLAPPs”): the practice of initiating lawsuits not to vindicate bona fide claims, but rather to deter a party from expressing a position on a matter of public interest or otherwise participating in public affairs. As this court recently explained in Mondal v. Kirkconnell, 2023 ONCA 523, at para. 29, “s. 137.1 is designed to allow defendants to have strategic or abusive actions – typically defamation proceedings – dismissed at an early stage in order to protect the public interest in freedom of expression.” . Schwartz v. Collette
In Schwartz v. Collette (Ont CA, 2023) the Court of Appeal held that a defamation action that was found to be "motivated by a desire to silence public interest expression by the Defendant" was sufficient to dismiss the entire action on a CJA 137.1 motion, even though the motion judge initially preserved non-defamation causes of action:[1] The defendant appeals from the order of the motion judge which, while striking out the majority of the claims in this action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, allowed the claim for harassment and infliction of emotional harm to proceed. As stated by the appellant, the sole issue on this appeal is whether, on a successful motion under s. 137.1, the entire action must be dismissed or whether the court may dismiss only particular claims.
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[6] In our view, it is unnecessary to embark on a consideration of the broad question raised by the appellant because, on the judge’s own findings, the entire action in this case ought to have been dismissed. The motion judge concluded in her original reasons, and repeated in her supplementary reasons, that “the entire action is motivated by a desire to silence public interest expression by the Defendant” (original emphasis). Given that finding, the entire proceeding ought to have been dismissed because it fell within the very rationale for the existence of the section, that is, to protect public interest expression and to deter litigation that seeks to prevent that expression.
[7] In so concluding, we wish to make it clear that we are not deciding whether, on a successful s. 137.1 motion, the court has the authority to delineate between claims that are found to be subject to the section and ones that are not. We leave that question to be decided in another case where it is fully and completely presented. . Mondal v. Kirkconnell
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions. In these quotes the court usefully summarizes the legal and political purpose of the SLAPP provisions:(a) The purpose of s. 137.1
[28] Although motions brought under s. 137.1 are by now commonplace, it is important not to lose sight of the fundamental purposes of the provision, as set out in subsection (1):(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. [29] In short, s. 137.1 is designed to allow defendants to have strategic or abusive actions – typically defamation proceedings – dismissed at an early stage in order to protect the public interest in freedom of expression. As the Supreme Court noted in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at paras. 38, 50-51, motions under s. 137.1 are situated between motions to strike, which are decided solely on the pleadings, and summary judgment motions, which involve a more extensive record and ultimate adjudication of the issues. Section 137.1 motions are resolved on the basis of limited evidence and corresponding procedural limitations.
[30] The preliminary nature of s. 137.1 motions is apparent in the burdens imposed on the plaintiff (responding party to the motion). At the merits-based hurdle under s. 137.1(4)(a), the plaintiff need establish only grounds to believe – “a basis in the record and the law” – for finding that the proceeding has substantial merit or that the defendant has no valid defence to the underlying proceeding: Pointes, at para. 39. At the public interest hurdle under s. 137.1(4)(b), the plaintiff need not prove harm or causation; the court is tasked at this stage with drawing inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link: at paras. 70-71. Thus, a s. 137.1 motion is not an occasion for a “deep dive” into the evidence; only a limited assessment of the evidence is appropriate: at para. 52.
[31] Section 137.1 is not intended to discourage or preclude legitimate defamation actions. But the paradigm SLAPP case – a meritless action brought by a powerful, well-heeled plaintiff in an attempt to tie up a critic in legal proceedings, cause them economic harm, and ultimately silence them and anyone else that might otherwise be tempted to criticize that plaintiff – is as easy to recognize as it is rare.
[32] Where an action has some merit, the decision whether it should be permitted to proceed depends on a weighing process that seldom admits of obvious answers.
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(c) The expression related to a matter of public interest (s. 137.1(3))
[40] The quality of the expression in these communications is not relevant to the threshold question – whether that expression related to a matter of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 24-25. The parties agree that it did and accordingly s. 137.1 was in play. But expression is not immunized from defamation proceedings simply because it relates to matters of public interest. The protection afforded by s. 137.1 is narrower: it establishes a procedure to dismiss proceedings that can be identified as strategic or abusive at an early stage in order to protect freedom of expression. Section 137.1 does not affect the substantive law of defamation, which applies to communications on social media platforms such as Twitter just as it does to communications on more traditional media – newspapers, radio, and television. Social media is not a defamation-free zone. . The Catalyst Capital Group Inc. v. West Face Capital Inc.
In The Catalyst Capital Group Inc. v. West Face Capital Inc. (Ont CA, 2023) the Court of Appeal considered messy, three-appeal litigation between private equity corporate actors.
In these quotes the court considers the onus at the SLAPP CJA s.137.1(4)(a) combined 'merits and defences' stage, and the contrast with the later s.137.1(4)(b) balancing stage:(1) Substantial merit
[40] At the merits analysis stage, the onus is on the responding party – the plaintiff in the action – to show there are “grounds to believe” the proceeding has substantial merit and the moving party has no valid defence. This standard is not high; it is more than mere suspicion but less than proof on the balance of probabilities: Pointes Protection, at para. 40. Accordingly, the motion judge is not intended to wade deeply into the thicket to resolve contested factual assertions. The factual findings on a s. 137.1(4) motion are only provisional, based on a record that is not expected to be full.
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(ii) Public interest in allowing the claims to proceed
[102] Given the motion judge’s finding that there were grounds to believe Catalyst would succeed on multiple claims, the appellants argue that the public interest in their claims necessarily outweigh the public interest in protecting the West Face parties’ expressions, especially since the motion judge found grounds to believe those expressions were malicious.
[103] This argument ignores two guiding principles of the s. 137.1(4)(b) analysis. First, at this stage, the “grounds to believe” standard is replaced with the more onerous “balance of probabilities” standard: Pointes Protection, at paras. 82, 103, and 126; Bent, at paras. 141, 174. Thus, a finding of “substantial merit” on the lower threshold in 137.1(4)(a) does not necessarily meet the public interest hurdle in s. 137.1(4)(b). Second, the public interest hurdle of the analysis “serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue”: Pointes Protection, at para. 62. Weighing the public interest is the crux of the analysis: Hansman v. Neufeld, 2023 SCC 14, at para. 57. It would be an error of law to do as the appellants suggest and tip the public interest balance in favour of findings made at an earlier stage of the s. 137.1 analysis, which would render the final step superfluous.
[104] Further, in making this argument, the Catalyst parties mistake merit with meritorious in relation to the torts they allege. Section 137.1(4)(b) is a chance for the court to assess what is really going on in the actions. A finding that there are grounds to believe the underlying actions have substantial merit does not mean they are meritorious simply because the torts alleged, if proven, would deter manipulation of capital markets through false and defamatory statements. It is true that such allegations are serious, but here they cannot be considered separately from the context in which they are brought. The motion judge found that in bringing the Wolfpack action, the Catalyst parties were animated by a punitive and retributory purpose rather than seeking vindication for some kind of legitimate wrong. This finding is the opposite of “meritorious”.
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[146] An anti-SLAPP motion is meant to be summary, efficient, and final. It is intended to save resources. This court has expressed concern that it is too often simply an occasion for the waste of additional time and expense, at no risk to the moving party: Park Lawn, at paras. 34-40. I share the motion judge’s concern that allowing a partial anti-SLAPP motion of this sort would have the effect of delaying the entire proceeding for little purpose and with great expense and delay. The motion judge did not err in dismissing the motion on the basis that s. 137.1 does not contemplate a motion that would not dispose of an entire cause of action against a defendant. . The Catalyst Capital Group Inc. v. West Face Capital Inc.
In The Catalyst Capital Group Inc. v. West Face Capital Inc. (Ont CA, 2023) the Court of Appeal considered messy, three-appeal litigation between private equity corporate actors, where SLAPP motions were central:The statutory framework
[14] To succeed on an anti-SLAPP motion, the moving party must satisfy the test set out in subsections 137.1(3) and (4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). These provisions state:(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. [15] The statutory scheme was explained by the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 18. Where the moving party is able to establish that the proceeding arises from an expression relating to a matter of public interest, the responding party must then satisfy the motion judge that (a) there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence, and (b) the harm suffered or likely to be suffered is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.
[16] The latter question – the weighing of the public interest in seeing the proceeding adjudicated against the public interest in protecting the expression at issue – was described as the “crux” and the “core” of the s. 137.1 analysis: Pointes Protection, at paras. 61-62; Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 139.
[17] The overarching purpose of the legislation was well expressed by Pepall J.A. in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at para. 33: “the anti-SLAPP legislation was designed to stop a plaintiff from silencing a defendant by pursuing meritless litigation that served to intimidate and undermine public expression.”
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[38] It is important to note from the outset the limited nature of a motion under s. 137.1(4). It is not, as this court recently reiterated in Park Lawn, a summary judgment motion. The proceeding is intended to be an expeditious means of weeding out a particular species of abusive claims. Too often it has been misused as a costly and time-consuming surrogate for a summary judgment motion. . Boyer v. Callidus Capital Corporation
In Boyer v. Callidus Capital Corporation (Ont CA, 2023) the Court of Appeal heard a case where the plaintiff sued initially in wrongful dismissal, but was then met by a large fiduciary claim in response. The plaintiff then moved with a SLAPP motion, which was dismissed when the motion judge held that the counterclaim did not "arise() from" [CJA 137.1(3)] the public expression. The appeal was primarily from that SLAPP denial:[25] I begin with a review of the provisions of s. 137.1, and the shifting burdens set out. I then apply those provisions to the facts here.Purposes
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.
Definition, “expression”
(2) In this section,
“expression” means 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. 2015, c. 23, s. 3.
Order to dismiss
(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. 2015, c. 23, s. 3.
No dismissal
(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
(a) 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. 2015, c. 23, s. 3.
No further steps in proceeding
(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3. [Emphasis added] [26] The shifting burdens on a s. 137.1 motion were explained in the oft-quoted passage by Côté J. from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 18:In brief, s. 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed. It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis: as noted repeatedly above, the [advisory panel report] and the legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest. Section 137.1(4)(b) is intended to optimize that balance.
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