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Civil Litigation - SLAPP - No Valid Defence. Boyer v. Callidus Capital Corporation
In Boyer v. Callidus Capital Corporation (Ont CA, 2023) the Court of Appeal considered the 'no valid defence' element of a SLAPP motion:The moving party has no valid defence burden: s. 137.1(4)(a)(ii)
[46] In Pointes, Côté J. explained at para 56 and 57:s. 137.1(4)(a)(ii) operates as a de facto burden-shifting provision in itself, under which the moving party (i.e. defendant) must first put in play the defences it intends to present and the responding party (i.e. plaintiff) must then show that there are grounds to believe that those defences are not valid. [47] In other words, once the moving party has put a defence in play, the onus is back on the responding party (i.e. plaintiff) to demonstrate that there are grounds to believe that there is “no valid defence”. . Bangash v. Patel
In Bangash v. Patel (Ont CA, 2022) the Court of Appeal, in a SLAPP defamation appeal case, considered the CJA 137.1(4)(a)(i) 'substantial merits' issue:[11] The motion judge situated the impugned passage within the context of the petition as a whole. It was open to him to do so. Moreover, he properly considered the pleadings and ultimately determined that the action did not have a real prospect of success. 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 does contemplate an examination of a statement of claim as part of the merits analysis. In addition, an action may not be frivolous, and may even be technically valid, but still not pass the requisite threshold of substantial merit: Pointes Protection, at para. 47. As Côté J. explained, the discretion is placed on the motion judge, not a “reasonable trier”: Pointes Protection, at para. 41. Simply put, the motion judge is entitled to significant deference in his assessment of the merit of the case. We would not interfere with the motion judge’s determination that the claim did not have a real prospect of success. . Blair v. Ford
In Blair v. Ford (Ont CA, 2021) the Court of Appeal considered whether "the moving party has no valid defence in the proceeding" [RCP 137.1(4)(a)(ii)] in a SLAPP dismissal motion:[41] Blair had the burden to show that the defence put forward by Ford had “no real prospect of success”: see Pointes Protection, at paras. 50, 60. The motion judge described a “real prospect of success” as meaning “a solid prospect of success” and “less than a “likelihood of success” but more than merely “some chance of success” or even “a reasonable prospect of success.”
[42] The appellant submits that this is the wrong test. He says it raised the burden on him and that he should have only been required to prove that a reasonable trier of fact could reject the defences advanced by Ford. The appellant relied on Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291 to support this argument.
[43] The test established by this court in Bondfield was refined in Pointes Protection. The perspective to apply is not that of a reasonable trier at a subsequent trial, but rather the subjective perspective of the motion judge. Pointes Protection clarifies the following at para. 41:Importantly, the assessment under s. 137.1(4)(a) must be made from the motion judge’s perspective. With respect, I am of the view that the Court of Appeal for Ontario incorrectly removed the motion judge’s assessment of the evidence from the equation in favour of a theoretical assessment by a “reasonable trier” … The clear wording of s. 137.1(4) requires “the judge” hearing the motion to determine if there exist “grounds to believe”. Making the application of the standard depend on a “reasonable trier” improperly excludes the express discretion and authority conferred on the motion judge by the text of the provision. The test is thus a subjective one, as it depends on the motion judge’s determination. [44] I do not agree that the motion judge used the wrong test or raised the bar for Blair with respect to “valid defence.” While the motion judge did not track the wording in Pointes Protection, his analysis makes it clear that he found that Blair did not demonstrate that Ford’s defence of fair comment had no real prospect of success. . Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (II)
In Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I) (Ont CA, 2021) the Court of Appeal considers the SLAPP issue of 'no valid defence' that a plaintiff may advance to further a claim even though it is based on expression in the public interest [paras 50-74].
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