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Civil Litigation - SLAPP - Public Interest Threshold (2). 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 cites cases supporting the conclusion that commercial speech could constitute 'public interest expression':[106] The Catalyst parties also take issue with the inference the motion judge drew as to the quality of the commercial speech involved. Earlier in his reasons, the motion judge drew from decisions of this court that found that an expression made about commercial activity could be a matter of public interest: see e.g., Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, 426 D.L.R. (4th) 1, at para. 40; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25, leave to appeal refused, [2021] S.C.C.A. No. 92, at paras. 38-47 (“Subway No. 1”). Further, he was well aware of the elements of the torts and his findings on malice that the appellants argue should tip the balance in their favour.
[107] Considering the law and the facts before him, the motion judge found the expressions were “valid and important topics of public debate concerning major financial entities that solicit investments from both domestic and international actors.” It bears repeating: It is not the task of this court to redo the inferences drawn as to the quality of the commercial speech or the weight attached to it.
(iv) Factors relevant to weighing the public interest
[108] The Catalyst parties argue that the motion judge considered factors irrelevant to the balancing exercise under s. 137.1(4)(b). In my view, he did not. As this court has recently noted, courts in Ontario have been “faced with a plethora of anti-SLAPP motions:” Park Lawn, at para. 1. There is a substantial accumulation of case law identifying permissible factors that can be considered under s. 137.1(4)(b). The Catalyst parties seek an unduly narrow interpretation of this provision, which runs contrary to the established jurisprudence.
[109] Contrary to the appellants’ argument, in Pointes Protection, Côté J. stressed the “open-ended nature” of s. 137.1(4)(b). The analysis is not exhausted by an inquiry into the traditional indicia of a SLAPP suit, but neither does it exclude it. Côté J. identified, at para. 80, several potentially relevant factors to consider:For example…the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of 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 damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group protected under s. 15 of the Charter or human rights legislation. [110] These factors overlap considerably with the indicia or hallmarks of a SLAPP suit identified by Doherty J.A. at para. 99 of Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60. It was thus not an error for the motion judge to consider these indicia as part of the public weighing exercise so long as they were considered together with other relevant considerations and not automatically treated as dispositive.
[111] To the extent that the appellants characterize Côté J.’s gloss on Pointes Protection in Bent as a categorical rejection of considering the hallmarks of a SLAPP in the s. 137.1(4)(b) analysis, they have misunderstood both decisions. The proposition Côté J. rejected is that the presence of these hallmarks is determinative. The hallmarks (or indicia or factors) are an open-ended list and can always be relevant to the public interest weighing exercise in an appropriate case. The SLAPP indicia are “tethered to the text” of s. 137.1(4)(b) when they are considered in the weighing analysis that the section prescribes: Pointes Protection, at para. 79.
[112] It was thus open to the motion judge to consider, for example, the conduct of the Catalyst parties in Project Maple Tree and the extensive history of litigation initiated against West Face and other defendants. The history of litigation between the parties or a history of the plaintiff using litigation or the threat of litigation to silence critics is relevant to discerning the public interest in allowing the underlying proceeding to continue. As this court summarized in Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, leave to appeal refused, [2021] S.C.C.A. No. 87 (“Subway No. 2”), at para. 102: “[w]hether a party is attempting to vindictively or strategically silence another party or is attempting to legitimately recover for harm arising from a defamatory statement may form part of the public interest weighing inquiry”. . Boyer v. Callidus Capital Corporation
In Boyer v. Callidus Capital Corporation (Ont CA, 2023) the Court of Appeal considered the facts and the law of the public expression element of the SLAPP provisions:The threshold burden on the moving party: s. 137.1(3)
[28] The threshold issues are: (i) there must be an expression; (ii) the expression must relate to a matter of public interest; and (iii) the proceeding for which dismissal is sought must arise from the expression.
[29] Here, the motion judge determined that the threshold issues of “expression” and “public interest” had been met. The motion judge was satisfied that the statements pleaded by Mr. Boyer concerning the “poisoned workplace” qualify as an expression within the meaning of s. 137.1(2). He further concluded that the business practices of Callidus relate to a matter of public interest.
[30] No issue is taken on appeal with these findings. At issue is the next threshold requirement: whether the proceeding “arises from” Mr. Boyer’s expression.
[31] The motion judge concluded that the term “arises from” implies an element of causality such that the moving party must show that the expression is causally related to the proceeding. In other words, Mr. Boyer must show that the comments about the toxic work environment caused Callidus to issue the counterclaim. The motion judge pointed to Côté J.’s statement at para. 24 of Pointes:... what does “arises from” require? By definition, “arises from” implies an element of causality. In other words, if a proceeding “arises from” an expression, this must mean that the expression is somehow causally related to the proceeding. [32] The motion judge concluded that the counterclaim did not arise from Mr. Boyer’s statement of claim because they were not causally connected.
[33] I conclude that the motion judge erred in law by interpreting “arises from” too narrowly.
[34] The threshold burden is not intended to be onerous. The balance of para. 24 in Pointes makes that clear:... what does “arises from” require? By definition, “arises from” implies an element of causality. In other words, if a proceeding “arises from” an expression, this must mean that the expression is somehow causally related to the proceeding.[1] What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1 indicates that a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework. [Emphasis added] [35] The footnote at the end of the second sentence provides further guidance:I do not believe that a precise level of causation needs to be identified, as courts have consistently been able to grapple with and apply the “arising from” standard. [Citations omitted] [36] Instead of taking a broad and liberal approach, the motion judge took a literal approach by comparing the allegations in pleadings with those in the counterclaim. He said, at paras. 50-51:Although Callidus, in its Statement of Defence and Counterclaim, denies Mr. Boyer’s pleaded statements alleging a poisoned work environment at Callidus resulting from its abusive management style, it does not make a claim in the Counterclaim that is premised, even in part, on these expressions. The Counterclaim is premised on Callidus’ assertions that (i) Mr. Boyer engaged in misconduct and breached his fiduciary duties to Callidus by allegedly failing to provide honest and transparent reporting to Callidus’ credit committee and by allegedly misleading the credit committee on certain matters, involving three companies in his loan portfolio, and (ii) Mr. Boyer resigned without adequate notice to Callidus.
Even if I were to accept that the Counterclaim is, as Mr. Boyer contends, “thinly pleaded”, and even having regard to the very large claim for damages as pleaded, these matters do not show a causal relationship between the Mr. Boyer’s expressions and the Counterclaim. [37] The motion judge did not consider the context in which the counterclaim was issued. I read the direction to take a “broad and liberal” approach to the threshold burden to mean that the court should consider the context and not pursue a rigid, formalistic view of the pleadings. Once the context is considered, it becomes clear that the counterclaim arose from the expressions in the appellant’s claim.
[38] When the allegations of a toxic work environment were made public by the appellant, Callidus immediately responded with a claim for $150 million. No underpinning is given for the quantum of damages. The claim is based on bald allegations with no itemization or explanation of loss suffered. It is based on events that Callidus had known about for years and never mentioned before. Only when the allegations of a toxic work environment were made public by the appellant was there a claim made. The cross-examinations show the allegations are unsubstantiated. Callidus’ own representatives confirmed as much.
[39] By interpreting s. 137.1(3) too narrowly and by failing to consider the context of the counterclaim, the motion judge erred in law in his application of the test in Pointes.
[40] At this point, the burden shifts to Callidus. Since the motion judge did not consider the burden on Callidus under s. 137.1(4), it falls to this court to do so. I turn to consider the substantial merits, the valid defence, and the public interest components of its burden. . Safavi-Naini v. Rubin Thomlinson LLP
In Safavi-Naini v. Rubin Thomlinson LLP (Ont CA, 2023) the Court of Appeal cites the interpretation to be given the 'public interest expression' element of SLAPP, here on allegations of sexual and workplace impropriety:[17] In Pointes Protection, Côté J. held, at para. 28, that the public interest criterion is to be given “broad interpretation”. The expression at issue should be assessed “as a whole”, and it must be asked whether “some segment of the community would have a genuine interest in receiving information on the subject”: Grant v. Torstar Corp., 2009 SCC 61, at paras. 101-2.
[18] In our view, it is obvious that the Executive Summaries prepared by Ms. Montpetit, and subsequently submitted to NOSM, relate to a matter of public interest.
[19] The subject matter of the Executive Summaries concerns general matters over which the public has substantial interest. The public has significant concern over sexual harassment and workplace harassment and, generally, has an interest in investigations into these issues.
[20] However, the mere fact that an expression relates to sexual and workplace harassment, on its own, will often be insufficient to bring it within the scope of public interest. If this were not the case, the anti-SLAPP framework would apply - in most cases - to defamation proceedings stemming from #MeToo workplace allegations.
[21] Instead, a contextual approach is required to determine what the expression at issue is really about: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, at para. 20. On the facts of this case, the Executive Summaries engaged the public interest, in part because of the nature of NOSM as an educational institution, the media attention garnered, and the public safety concerns arising from the allegations, which are addressed below.
[22] In her reply factum, the appellant argues that the fact that she hired a publicist to “try to shame NOSM into conducting a workplace investigation into her allegations does not convert this private matter into a matter of public interest”.
[23] We disagree. The act of retaining a publicist to assist in an attempt to “shame” a public education institution in a relatively small community is the antithesis of trying to keep the matter private. Moreover, the news release circulated by the publicist was successful; it provoked news coverage from national, provincial, and local media, including CBC, CTV, Post Media, the Toronto Star, and the North Bay Nugget.
[24] Further in these media reports, Dr. Safavi-Naini raised the issue of public safety. In the North Bay Nugget article, she acknowledged the patient safety concerns surrounding her allegations, stating that these matters “affect patient care every day”. The concern for patient safety in a public institution is not a private matter. It directly engages the interest of the community and is indicative of why the Executive Summaries are within the scope of the public interest. . Dent-X Canada v. Houde
In Dent-X Canada v. Houde (Ont CA, 2022) the Court of Appeal considered some subtle issues regarding the public interest requirement of the SLAPP rules:[5] In holding that he was not satisfied that the statement related to a matter of public interest, the motion judge correctly instructed himself on the analysis from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at paras. 20, 26-31, and Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 99-109.
[6] The motion judge concluded that the nature of the statement as a whole was about a private dispute between businesses, and not related to a matter of public interest. He accepted that the quality of masks may be an issue closely connected to the public interest during a global pandemic. However, he noted that statement only mentioned the word “mask” once, at the outset. He found that there was nothing in the statement that spoke to the issue of quality of the masks, or suggested that the alleged fraud had anything to do with the quality of the masks, or that the alleged fraud put the public at risk. Rather, he found that the alleged fraud, when the post was read as a whole, related to the respondent missing delivery dates and not honouring a refund. He found that this related to a purely private dispute between businesses. He also found that the personal information in the statement about the reputation and integrity of people who worked at the respondent company was an expression that was personal in nature, and not about the quality of the products produced by the respondent.
[7] The appellants submit that the motion judge committed two errors in finding that the statement at issue did not relate to a matter of public interest. We address each alleged error in turn.
[8] First, the appellants submit that the motion judge “completely ignored” that the statement was, “in part at least, for the purpose of commencing a potential class action”. Relying on the decision of Das v. George Weston Limited, 2017 ONSC 5583, at para. 128, aff’d 2018 ONCA 1053, leave to appeal refused, [2019] S.C.C.A. No. 69, the appellants submit that class actions inherently relate to matters of public interest. We pause to note that the appellants’ counsel confirmed at the hearing that no class action was ever commenced.
[9] We reject the appellants’ argument that the motion judge failed to consider the reference to a class action at the outset of the statement. The motion judge was clearly alive to the fact that the title and first sentence of the statement at issue referred to a potential class action. He extracted the whole statement in his reasons (at para. 25). He referred to the title of the post in his reasons, when he noted that the Facebook post “only mentions the word ‘mask’ once at the outset”. That one mention of masks was in the title, which also referred to the potential class action. Further, in his costs endorsement, reported at 2021 ONSC 7433, the motion judge expressly referred to the mention in the statement of a potential class action, stating:The underlying dispute was purely a private one. If the reason for the impugned communication was, as [the appellants] argued, to find other clients of [the respondent] for the purpose of a class action, one might expect the content and tone of its communication to be vastly different. [10] The appellants’ submission confuses an expression referring to a matter of public interest with an expression relating to a matter of public interest. Pointes holds that the concept of whether particular expression relates to a matter of public interest must be broadly interpreted, and assessed by looking at the expression as a whole. However, Pointes also makes clear that merely referring to something of public interest is not the same as relating to a matter of public interest: Pointes at para. 29; see also Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 19, 26-35.
[11] The motion judge correctly considered the statement as a whole. He did not ignore the reference to a potential class action. Based on his analysis of the whole of the statement, he found it did not relate to a matter of public interest. We see no basis to interfere with that conclusion.
[12] The appellants’ second submission is that the motion judge erred by considering the issue of whether the statement related to a matter of public interest from the subjective perspective of the motives and manner of expression of the appellants, rather than based on the subject-matter of the statement, as is required by Pointes and Sokoloff.
[13] We disagree. The motion judge considered the statement as a whole, and correctly considered whether it related to a matter about which the public has genuine interest or concern, or affecting the welfare of citizens. He analyzed the subject-matter of the statement, and made factual findings that were based on an analysis of the whole statement. Contrary to the appellants’ assertion, he did not consider whether the statement related to a matter of public interest from the subjective perspective of the appellants’ motivations or manner of expression. . Echelon Environmental Inc. v. Glassdoor Inc.
In Echelon Environmental Inc. v. Glassdoor Inc. (Ont CA, 2022) the Court of Appeal considered whether expression was in the public interest for purposes of a SLAPP defence:[4] It is well established that on a motion under s. 137.1, expression is to be assessed as a whole. The question is whether “some segment of the community would have a genuine interest in receiving information on the subject”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 27; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 102. Although the public interest is to be interpreted broadly, not everything in which some members of the public are interested is a matter of public interest for the purpose of s. 137.1: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 19.
[5] The essential question is this: Understood in its context, what is the impugned expression really about? The motivation behind the expression is not legally relevant, nor are the merits of the expression and the manner in which the expression is conveyed, as there is no qualitative assessment of expression at this stage: Pointes, at para. 28; Sokoloff at para. 20.
[6] Whether expression relates to a matter of public interest involves a question of mixed fact and law that attracts a deferential standard of review. Provided that the motion judge made no extricable errors of law and no palpable and overriding errors of fact, the decision is entitled to deference. . Levant v. DeMelle
In Levant v. DeMelle (Ont CA, 2022) the Court of Appeal conducted a classic SLAPP-defamation (libel) appeal analysis. In this quote it considers the SLAPP-threshhold issue of whether the expression was in the public interest:a) Statements relating to a matter of public interest
[57] The appellants take issue with the motion judge’s conclusion that the impugned expressions were on a matter of public interest – a conclusion that he reached “with some reluctance”. In making their submissions, the appellants focus on the accusation that Mr. Levant is “a neo-Nazi sympathizer”. They say that the accusation is nothing more than a gratuitous insult and cannot be characterized as having anything to do with any matters of public interest.
[58] The flaw in the appellants’ argument on this point is that they isolate the “neo-Nazi sympathizer” statement from the rest of the article. That is not the proper approach to determining whether the expression in issue relates to a matter of public interest. Rather, it is the entire expression that must be considered. In other words, in this case, it is the article as a whole that must be considered in determining whether the expression is on a matter of public interest.
[59] That this is the proper approach is clear from the decision in Grant, which is referred to at some length on this subject in Pointes. In Grant, McLachlin C.J. said, at para. 101:In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation. . Canadian Union of Postal Workers v. B’nai Brith Canada
In Canadian Union of Postal Workers v. B’nai Brith Canada (Ont CA, 2021) the Court of Appeal considered the public interest threshold SLAPP test:Legal Framework
[10] Subsections 137.1(3) and (4) of the Courts of Justice Act provide the following test on an anti-SLAPP motion:(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. [11] The Supreme Court of Canada’s decision in Pointes Protection, released after the motion judge’s decision, analyzed the interpretation and application of these provisions. At para. 18, Côté J. explained how these provisions operate:1. Section 137.1 places a threshold burden on the moving party (the defendant) to satisfy the motion judge that the proceeding arises from an expression relating to a matter of public interest.
2. If the moving party meets this threshold burden, the burden shifts to the responding party (the plaintiff) to satisfy the motion judge that there are grounds to believe that 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 does not meet this burden, the s. 137.1 motion is granted and the proceeding is dismissed. The court continued to consider these issues at para 15-42.
. Grist v. TruGrp Inc.
In Grist v. TruGrp Inc. (Ont CA, 2021) the Court of Appeal considered the public interest issue in a SLAPP case:Is the expression a matter of public interest?
(1) Principles
[16] To satisfy the threshold requirements under s. 137.1(3), the moving party must show (i) the “proceeding arises from an expression made by the moving party”, and (ii) “the expression relates to a matter of public interest”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 21. Here, there is no dispute that the pleadings constitute expression. This appeal turns on whether the respondents’ expression relates to a matter of public interest.
[17] The purpose of s. 137.1, as explained in Pointes, is “to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy”: at para. 30. It is not a new form of summary trial on the merits of a defamation action but is instead meant to provide an early and cost-effective means of ending litigation brought by a plaintiff to silence a party who has spoken on a matter of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 47. Its paradigmatic application is to prevent others from silencing persons who are speaking on matters that have significance beyond themselves.
[18] The scope of s. 137.1’s protection is set using the concept of the public interest. This is a concept that many have found difficult to apply. The most detailed exploration of the concept is provided in Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, in the analogous context of the law of defamation. That case emphasizes that the public interest is not a descriptive concept: it is not a matter of ascertaining what the public, or any subgroup, believes to be interesting, entertaining, or worth their attention: at para. 102. Instead, “there is necessarily a normative aspect to what is ‘genuinely’ a matter of public interest”: Sokoloff, at para. 18. That is, the statement must address an issue “about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Grant, at para. 105, citing Raymond E. Brown, The Law of Defamation in Canada, loose-leaf, (2008-Rel. 3) 2nd ed. (Scarborough: Carswell, 1999), vol. 2, at pp. 15-137 and 15-138. Again, the fact of notoriety or controversy is not sufficient in itself — one must assess the reason for the notoriety.
[19] The public interest includes such matters as the establishment, use, allocation, and maintenance of shared public goods, and therefore protects discussion and advocacy about the distribution of benefits and burdens of social life. But the public interest is not necessarily limited to matters of shared public life: Grant, at para. 106. There is, after all, a public interest in maintaining peaceful relations between persons in society and in drawing attention to acts of injustice. But the resolution of purely private disputes between more or less equals—disputes that have no immediate bearing on the rights or obligations of others—can seldom be a matter of public interest: Sokoloff, at para. 19.
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