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SLAPP - General

. Kelava v. Spadacini

In Kelava v. Spadacini (Ont CA, 2021) the Court of Appeal cited a case where the Small Claims Court did not have jurisdiction to adopt the RCP Rule 137.1 SLAPP provisions under Small Claims Court Rule 1.03(2):
[35] An example of a marker limiting jurisdiction is shown in Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, 147 O.R. (3d) 84. There, the issue was whether the Small Claims Court had the authority to dismiss an action under s. 137.1 of the Courts of Justice Act. This is the so-called anti-SLAPP[2] law. It is meant to address concerns arising from the use of litigation to interfere with freedom of expression and quickly dismiss unmeritorious claims that unduly encroach on an individual’s right to freedom of expression on matters of public interest: Bruyea, at para. 11. The process permits the summary dismissal of an action. In Bruyea, this court determined that, by drafting the Act to refer exclusively to “judge”, not “deputy judge” or “court”, the legislature put down a “marker” of an intent to omit the jurisdiction from the Small Claims Court. Interestingly, the court commented on access to justice, at para. 27, by noting that:
…ironically, s. 137.1 is not a provision providing access. To the contrary, at least viewed from the perspective of the plaintiff, it is the very opposite. It is a provision that is intended, in proper circumstances, to prohibit access to the courts.
. 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 then-recent Ontario Court of Appeal case of Points Protection in an appeal from a successful respondent on the motion. But now see the SCC case treatment of Points Protection at SLAPP 2020 SCC Cases]:
[10] We do not, however, see any error in the motion judge’s dismissal of the appellant’s s. 137.1 motion. She correctly articulated and applied the appropriate test, as set out in para. 7 of this court’s decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, leave to appeal granted and appeal heard and reserved November 12, 2019, [2018] S.C.C.A. No. 467:
Stripped to its essentials, s. 137.1 allows a defendant to move any time after a claim is commenced for an order dismissing that claim. The defendant must demonstrate that the litigation arises out of the defendant’s expression on a matter relating to the public interest. If the defendant meets that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit clears the merits-based hurdle in s. 137.1(4)(a) and the public interest hurdle in s. 137.1(4)(b).
....

[13] The motion judge properly considered the issue of the reputational damage to the respondents. In particular, she found that the appellant’s expression had cast “serious aspersions upon their individual characters”. The motion judge found the respondents’ general damages, as exacerbated by the appellant’s malice, to have been more than nominal, partly in the light of the positions held by the individual plaintiffs. It was not necessary for her to find monetary damages because “a serious libel does not always manifest itself in financial losses”: Montour v. Beacon Publishing Inc., 2019 ONCA 246, at para. 31, leave to appeal refused, [2019] S.C.C.A. No. 154.

[14] Similarly, the motion judge carefully considered the public interest in the expressive content of the appellant’s posts, including the videos. She did not, as the appellant submits, limit her analysis to the added commentary to the videos. She found that the posts involved gratuitous personal attacks, as well as vulgar and offensive language, and did not address any governance or leadership issues in any constructive or cogent way. She therefore found that the public interest in the appellant’s expression was low. Her conclusion that the harm suffered by the respondents outweighed the public interest in protecting the appellant’s expression was well-grounded in the evidence and free from error.
. Nanda v. McEwan

In Nanda v. McEwan (Ont CA, 2020) the Court of Appeal, hearing an appeal of a motion judge's denial of their anti-SLAPP motion, reviewed the legal basics of SLAPP law:
(1) Section 137.1 of the CJA – The “Anti-SLAPP” Provision

(a) Purpose

[25] Section 137.1 of the CJA is designed to prevent the legal process from being used as a weapon to limit debate on matters of public interest. Section 137.1(1) explains that its purpose is:
(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
[26] In Pointes, the seminal case on the interpretation of s. 137.1, Doherty J.A. provided the following summary of the operation of the legislation, at para. 7:
s. 137.1 allows a defendant to move any time after a claim is commenced for an order dismissing the claim. The defendant must demonstrate that the litigation arises out of the defendant’s expression on a matter relating to the public interest. If the defendant meets that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit clears the merits-based hurdle in s 137.1(4)(a) and the public interest hurdle in s. 137.1(4)(b).
(b) Section 137.1(3): The Threshold Requirement

[27] Section 137.1(3) sets out what was described in Pointes as a “threshold requirement”:
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.
[28] This provision requires the moving party to establish, on a balance of probabilities, that the expression “relates to a matter of public interest.” This term is to be given a broad reading and does not require that the expression actually further the public interest. It covers language that is intemperate, false, or even contrary to the public interest: Pointes, at para. 55.

(c) Section 137.1(4): The Merits-Based and Public Interest Hurdles

[29] If the defendant establishes that the expression relates to a matter of public interest, s. 137.1(4) comes into play and the onus shifts to the plaintiff. It provides:
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.
[30] First, to satisfy s. 137.1(4)(a), the “merits-based hurdle”, the plaintiff must establish, on a balance of probabilities, that the proceeding has substantial merit and that the defendant has no valid defence.

[31] Second, to surmount s. 137.1(4)(b), the “public interest hurdle”, the plaintiff must show that the harm suffered by the plaintiff as a result of the defendant’s expression “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”
. Ontario College of Teachers v. Bouragba

In Ontario College of Teachers v. Bouragba (Ont CA, 2020) the Court of Appeal set out basic SLAPP principles, though at that time the leading case of 1704604 Ontario Ltd. v. Pointes Protection Association was only at the Ontario Court of Appeal stage (it later went to the Supreme Court of Canada):
III. The Governing Principles Concerning SLAPP Litigation

[13] This court addressed s. 137.1 of the Courts of Justice Act in a group of linked decisions, the heart of which is 1704604 Ontario Ltd. v. Pointes Protection Association. The associated decisions were Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, 426 D.L.R. (4th) 1; Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, leave to appeal granted and appeal heard and reserved November 12, 2019, [2018] S.C.C.A. No. 466; Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54; and Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690, 428 D.L.R. (4th) 568.

[14] In Pointes, Doherty J.A. noted that the scheme in s. 137.1 of the Courts of Justice Act has three features or steps. The first is that for the section to be engaged, the expression must relate to a matter of public interest under s. 137.1(3), which provides:
(3) [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.
[15] The second feature is the “merits-based hurdle.” It is set out in s. 137.1(4)(a), which provides:
(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
[16] The third feature is the “public interest hurdle.” It is found in s. 137.1(4)(b), which provides:
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(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.
[17] The first step in the required analysis is to identify the relevant “public interest,” if any. This requirement is intended to be based on a “broad reading” of the meaning of “public interest” so that public discourse on matters of public interest is not unduly discouraged: Pointes, at para. 57. Doherty J.A. did not identity an exhaustive list of topics that fall under the rubric of public interest but noted that Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 provided considerable assistance.

[18] Of significance to this case, Doherty J.A. noted, at para. 47, that s. 137.1 “does not fix on the plaintiff’s purpose or motive in bringing the claim as the determining factor”. Regarding the concept of public interest, he noted, at para. 65:
In summary, the concept of “public interest” as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3). [Emphasis added.]
[19] Doherty J.A. returned to the issue of motive at para. 94, when he contrasted the assessment of the public interest in s. 137.1(3) with the “public interest hurdle” in s. 137.1(4)(b), which is the third step in the analysis. He said, at para. 94: “Unlike the ‘public interest’ inquiry in s. 137.1(3), in which the quality of the expression or the motivation of the speaker are irrelevant …, both play an important role in measuring the extent to which there is a public interest in protecting that expression.” He added, at para. 95:
In addition to the quality of the expression and the defendant’s motivation for making the expression, the consequences of the plaintiff’s claim will figure into the weight to be given to the public interest in protecting that expression. Evidence of actual “libel chill” generated by the plaintiff’s claim can be an important factor in the public interest evaluation required under s. 137.1(4)(b): Able Translations Ltd., at para. 102. [Emphasis added.]
[20] Doherty J.A. noted, at para. 96, in relation to the third or balancing step: “Because the balancing of the competing public interests will often be determinative of the outcome of the s. 137.1 motion, and because the analysis contains an element of subjectivity, it is crucial that motion judges provide full reasons for their s. 137.1(4)(b) evaluations.”



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