Simon's Megalomaniacal Legal Resources

Civil Litigation - SLAPP - Timing

. Boyer v. Callidus Capital Corporation

In Boyer v. Callidus Capital Corporation (Ont CA, 2023) the Court of Appeal considered a messy SLAPP motion involving summary judgment, amendment of pleadings and more, where CJA 137.1(5) timing issues arose:

Issue 2: Did the motion judge err by deferring the r. 21 motion and the summary judgment motion?

[58] The motion judge concluded that s. 137.1(5) precluded him from considering the motion to dismiss the counterclaim as frivolous and vexatious and the summary judgment motion.

[59] The parties and the supervising judge of the Commercial List had agreed that all motions be heard together.

[60] In Zoutman v. Graham, 2020 ONCA 767, this court determined that a s. 137.1 motion did not preclude the court from deciding a summary judgment motion in the same action. The motion judge distinguished this case because in Zoutman, the summary judgment motion was brought first and then combined with the s 137.1 motion. I do not agree that is a requirement. To sequence motions in this fashion would add expense and delay to an already expensive process. This was confirmed in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at paras 7-9:

... we agree with the appellant’s position that the motion judge made no error in hearing the s. 137.1 motion at the same time as the summary judgment motion. There is no statutory or other prohibition against proceeding in this manner and it was within the discretion of the motion judge to determine the order in which the motions would be addressed.

Moreover, the purpose of s. 137.1 could be undercut if the bringing of a summary judgment motion precluded a defendant from bringing a s. 137.1 motion. While mindful that the efficacy of s. 137.1 could be undermined if the motion is not brought on a timely basis, there is no statutory timeline for its hearing.

There should be no hard and fast rule dictating when such a motion should be brought; otherwise, the inherent discretion of a motion judge to manage the proceedings before him or her would be fettered. We do not read para. 50 of Zoutman v. Graham, appeal as of right to the Court of Appeal filed, as purporting to set down as general principle anything to the contrary.

[61] Moreover, the goals of efficiency and economy would be lost if the motions are not heard together. The procedure was meant to be efficient and inexpensive. As Pepall J.A. said in Park Lawn, at para. 40:

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 [s. 137.1] motions should not be brought, but rather the parameters of the ensuing litigation should be limited in scope.

[62] While a motion judge has discretion to organize the conduct of a motion, the principles animating the discretion should be based on efficiency and economy. Section 137.1(5) does not preclude the motions in the present case from being heard and decided together.

. Zoutman v. Graham

In Zoutman v. Graham (Ont CA, 2020) the Court of Appeal considered the timing provision of the SLAPP law of the Courts of Justice Act:

137.1(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.

The court stated:

[16] Although not pressed in oral submissions, the appellant submits that the motions judge had no jurisdiction to rule on the summary judgment motion once the appellant brought his anti-SLAPP motion due to the language of s. 137.1(5). Section 137.1(5) provides that once a s. 137.1 motion is made, no further steps may be taken in the proceeding until the anti-SLAPP motion, including any appeal, has been finally disposed of.

[17] However, the respondent brought and scheduled his summary judgment motion well before the appellant brought his motion under s. 137.1. Furthermore, the two motions were ordered to be heard at the same time, and the appellant did not seek to appeal that decision. In this context, the respondent did not take any further step within the meaning of s. 137.1(5). It will not be every case that the presence of a motion for summary judgment precludes a s.137.1 motion: see Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at para. 9. However, given the constellation of facts in this case, it was open to the motions judge to decline the s.137.1 relief on the basis of its timing.

. Chopak v. Patrick

In Chopak v. Patrick (Div Ct, 2020) the Divisional Court consider the application of SLAPP provisions to a Small Claims Court case:

The anti-SLAPP Issue

[73] On this appeal the appellant raised the application of s. 137.1 of the Courts of Justice Act, which permits a court to dismiss an action that is brought for the improper purpose of muzzling speech in the public interest. As motions to invoke s. 137.1, known as anti-SLAPP motions (Strategic Litigation Against Public Participation), may not be brought before Deputy Judges in the Small Claims Court, this issue was not raised at trial. However, as stated in s. 137.2(1) of the Courts of Justice Act, such motions may be made “at any time after the proceeding has commenced.” The appellant argues that this includes on an appeal and that I should invoke s. 137.1 now and dismiss the action in its entirety.

[74] I decline to do so. Leaving aside whether an appeal is a “proceeding”, as s. 137.1(3) states that the motion applies only to a “proceeding” which is defined in the Rules of Civil Procedure as “an action or application,” one of the objectives of anti-SLAPP motions is to avoid an expensive proceeding and trial. Although such a motion could not have been brought before the trial judge in this case, it was open to the defendant to have taken steps to bring the motion before a Superior Court Justice and he did not do so: see, e.g., Peel Condominium Corporation No. 346 v. Florentine Financial Corporation, 2018 ONSC 2636, in which the Court transferred a matter from Small Claims Court when only the Superior Court had jurisdiction to grant additional relief sought by the plaintiff. Instead, Patrick went to trial and received a judgment. It would be improper and unfair to now permit the defendant to invoke a process that should have been brought before trial. Furthermore, as the Court of Appeal stated in the case which concluded that Deputy Judges cannot hear anti-SLAPP motions: “It is not appropriate, as a matter of general application, for this court to engage in determining matters of first instance. Among other reasons, doing so has a direct and significant effect on appeal rights”: Bruyea v. Canada (Veteran Affairs) (2019) 2019 ONCA 599 (CanLII), 147 O.R. (3d) 84 (C.A.), at para. 30.

. Labourers’ International Union of North America, Local 183 v. Castellano

In Labourers’ International Union of North America, Local 183 v. Castellano (Ont CA, 2020) the Court of Appeal considered the timing of a SLAPP motion, here merged with a R20 summary judgment motion:

[7] Starting with the appellant’s s. 137.1 motion, we agree with the appellant’s position that the motion judge made no error in hearing the s. 137.1 motion at the same time as the summary judgment motion. There is no statutory or other prohibition against proceeding in this manner and it was within the discretion of the motion judge to determine the order in which the motions would be addressed.

[8] Moreover, the purpose of s. 137.1 could be undercut if the bringing of a summary judgment motion precluded a defendant from bringing a s. 137.1 motion. While mindful that the efficacy of s. 137.1 could be undermined if the motion is not brought on a timely basis, there is no statutory timeline for its hearing.
[9] There should be no hard and fast rule dictating when such a motion should be brought; otherwise, the inherent discretion of a motion judge to manage the proceedings before him or her would be fettered. We do not read para. 50 of Zoutman v. Graham, 2019 ONSC 2834, appeal as of right to the Court of Appeal filed, as purporting to set down as general principle anything to the contrary.