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SLAPP - No Valid Defence

. 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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