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Civil Litigation - SLAPP - No Further Steps in Proceeding [CJA 137.1(5)]

. Bouragba v. Ontario College of Teachers

In Bouragba v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered whether a discontinuance of action by the plaintiff in a SLAPP proceeding constituted a 'further step' under CJA 137.1(5):
The Effect of s.137.1(5) of the Courts of Justice Act

[11] Subsection 137.1(5) of the Courts of Justice Act provides as follows:
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.
[12] Mr Bouragba argues that the motion for leave to discontinue was a “further step in the proceeding”. It is precluded by s.137.1(5). The provision is an absolute prohibition, it is statutory, and the court has no discretion to dispense with it (see United Soils Management Ltd. v. Katu Mohamed, 2017 ONSC 904, per Penny J.). The Master found that the prohibition in s.137.1 applies to any step “to advance the litigation”, but that the prohibition does not apply to a motion seeking “to bring the entire proceeding to an end.” I agree with the Master’s conclusion on this point in the context of a motion for leave to discontinue the entire action, with prejudice.[1]

[13] The purpose of the anti-SLAPP provision is to require that the propriety of the action be decided before the parties take other steps that run up the costs of the litigation for the parties and for the administration of justice: Ontario, Ministry of the Attorney General, Anti-SLAPP Advisory Panel: Report to the Attorney General, Toronto, 2010, para. 42. The provision does not exist to enable a defendant to obtain a decision on the merits of the anti-SLAPP motion, but rather to eliminate improper lawsuits early, to save everyone, including the administration of justice, unnecessary time and expense. In moving first reading of the legislation that enacted the anti-SLAPP provision, Attorney General Meilleur stated to the Legislature:
Catching strategic lawsuits early also has benefits for the courts, by minimizing the amount of valuable public resources wasted on those matters. This, of course, benefits all court users. (Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 1st Sess., No 41A (December 10, 2014) at 1971)
[14] Mr Bouragba is asking this court to set aside the discontinuance, which has the effect of terminating the action in his favour, so that he may subsequently pursue a motion before a judge for an order terminating the proceedings in his favour, at significantly greater cost to the parties and the administration of justice. The impracticality of this position is apparent on its face.


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