Civil Litigation - SLAPP - Critique. Canadian Tire Corporation, Limited v. Eaton Equipment Ltd.
In Canadian Tire Corporation, Limited v. Eaton Equipment Ltd. (Ont CA, 2023) the Court of Appeal (the entire three judge panel) made critical comments on the CJA 137.1 SLAPP regime:
 SLAPP motions were intended to be a relatively summary procedure, designed to weed out unmeritorious actions that target expressions on matters of public interest. However, they have proven to be an unwieldly, expensive, and time-consuming remedy. We decline to contribute further to that problem by expanding the threshold test to include an investigation of a plaintiff’s motive in commencing litigation and consideration of factors that would apply had the motion passed the threshold stage.. Park Lawn Corporation v. Kahu Capital Partners Ltd.
In Park Lawn Corporation v. Kahu Capital Partners Ltd. (Ont CA, 2023) the Court of Appeal considered an appeal of a dismissal of a SLAPP motion brought by the plaintiff/appellant against a counterclaim for breach of contract and defamation.
These quotes reflect a very useful 2023 critique of SLAPP motions:
c) Practice Considerations
 Unfortunately, it would appear that the practice has evolved into quite a different state than that anticipated by the Legislature and by Pointes Protection and Bent.
 In Tamming v. Paterson, 2021 ONSC 8306, at paras. 7-9, Myers J. observed that anti-SLAPP motions have become expensive, time-consuming and open to abuse:
These motions tend to be complex and expensive proceedings. Although they are not intended to involve a deep dive into the merits or even a detailed review akin to a motion for summary judgment, they usually do represent virtually the entire trial being played out in advance…. In “Canadian Anti-SLAPP Laws in Action” (2022) 100:2 Can. B. Rev. 186, Professor Hilary Young conducted a review of Ontario and British Columbia’s experience with anti-SLAPP litigation. Her research is reflective of many of the same observations made by Myers J. in Tamming. She noted, for example, that one criticism of the legislation is that the costs consequences may incentivize parties to bring an anti-SLAPP motion despite the underlying claim not being a SLAPP because even if the motion is unsuccessful, a losing moving party often will not have to pay any costs: Young, at p. 197.
Despite the Legislature’s intention to create a preliminary hurdle, the process advanced in practice is more like a marathon. To that end, the mandatory 60-day time limit for resolving these motions is routinely ignored. Counsel on both sides usually need more time and, in Toronto at least, motion appointments are backlogged by far more than 60 days.
We are seeing an ever-increasing volume of anti-SLAPP motions in Toronto. The powerful remedy and the costs protections for the moving defendants make these motions attractive. The size of the endeavour can also be seen as an incentive for abusive SLAPP plaintiffs and others with incentive to expand proceedings. [Emphasis added.]
 Further, as noted by Myers J. and Professor Young, these motions tend to be expensive: Tamming, at para. 7; Young, at p. 206. The case under appeal is a good example of this: the appellants delivered a costs outline to the motion judge seeking $376,567.78 for the costs of the motion and dismissal of the defamation counterclaim. This did not include costs of the appeal.
 To address the objectives of the legislation, it bears repeating that the emphasis of the motion should be on the “crux” or “core” of the analysis, namely the weighing exercise. This should not involve a trial of the issue or as some have put it, a “trial in a box”: Young, at p. 199; Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, at para. 97. Rather, the motion is a screening procedure. At the third stage of the test, the weighing exercise, a technical, granular analysis is not required. Instead, as directed by the Pointes Protection and Bent decisions, the motion judge should step back and ask what is really going on.
 With this direction in mind and recognizing that an anti-SLAPP motion is meant to be efficient and economical, I would suggest that, as a guideline, the costs of such a motion should not generally exceed $50,000 on a full indemnity basis, although there will be exceptions and motion judges always have the power to award less, more or nothing as they see fit in the circumstances of each case. If the parties and the motion judge focus on the purposes that animate the anti-SLAPP provision, the inquiry will not generally be a difficult one for a motion judge. Indeed, typically the conclusion should be obvious and one readily reached by a motion judge.
 I would also add that the cost of litigation is a plague that has infected our system of justice and serves to undermine its efficacy. Here the Legislature enacted a provision designed to help people avoid a costly defamation lawsuit and preserve the opportunity for public discourse and expression, but at the same time allow legitimate actions to proceed. The procedure was to be efficient and inexpensive. Ironically, a procedure intended to avoid costly, unmeritorious, protracted defamation lawsuits has developed into a platform for sometimes costly, unmeritorious and protracted litigation. This is not to say that anti-SLAPP motions should not be brought, but rather the parameters of the ensuing litigation should be limited in scope. Providing a guideline for costs may serve to dampen the enthusiasm, no doubt well intentioned, to over-litigate an anti-SLAPP motion.
 In addition, consistent with the legislation, anti-SLAPP motions should be heard no later than 60 days after the notice of motion is filed: Courts of Justice Act, s. 137.2(2). Subject to court availability, motion judges should generally compel compliance with this 60-day time parameter. The timeframe for these motions should act as a reminder that they are meant to be limited in scope.
 Lastly, it bears repeating that a motion judge’s determination on a s. 137.1 motion will be entitled to deference on appeal absent an error in law or palpable and overriding error: Bent, at para. 77; Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at para. 21 (“CUPW”). This is especially so with respect to a motion judge’s weighing of the public interest: Bangash v. Patel, 2022 ONCA 763, at para. 12. Parties should be mindful of this standard of review when seeking to appeal an order in anti-SLAPP proceedings. As mentioned, this court has seen a proliferation of anti-SLAPP appeals.