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SLAPP - Public Interest Threshold

. Canadian Union of Postal Workers v. B’nai Brith Canada

In Canadian Union of Postal Workers v. B’nai Brith Canada (Ont CA, 2021) the Court of Appeal considered the public interest threshold SLAPP test:
Legal Framework

[10] Subsections 137.1(3) and (4) of the Courts of Justice Act provide the following test on an anti-SLAPP motion:
(3) 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.

(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

(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.
[11] The Supreme Court of Canada’s decision in Pointes Protection, released after the motion judge’s decision, analyzed the interpretation and application of these provisions. At para. 18, Côté J. explained how these provisions operate:
1. Section 137.1 places a threshold burden on the moving party (the defendant) to satisfy the motion judge that the proceeding arises from an expression relating to a matter of public interest.

2. If the moving party meets this threshold burden, the burden shifts to the responding party (the plaintiff) to satisfy the motion judge that there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party does not meet this burden, the s. 137.1 motion is granted and the proceeding is dismissed.
The court continued to consider these issues at para 15-42.

. Grist v. TruGrp Inc.

In Grist v. TruGrp Inc. (Ont CA, 2021) the Court of Appeal considered the public interest issue in a SLAPP case:
Is the expression a matter of public interest?

(1) Principles

[16] To satisfy the threshold requirements under s. 137.1(3), the moving party must show (i) the “proceeding arises from an expression made by the moving party”, and (ii) “the expression relates to a matter of public interest”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 21. Here, there is no dispute that the pleadings constitute expression. This appeal turns on whether the respondents’ expression relates to a matter of public interest.

[17] The purpose of s. 137.1, as explained in Pointes, is “to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy”: at para. 30. It is not a new form of summary trial on the merits of a defamation action but is instead meant to provide an early and cost-effective means of ending litigation brought by a plaintiff to silence a party who has spoken on a matter of public interest: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 47. Its paradigmatic application is to prevent others from silencing persons who are speaking on matters that have significance beyond themselves.

[18] The scope of s. 137.1’s protection is set using the concept of the public interest. This is a concept that many have found difficult to apply. The most detailed exploration of the concept is provided in Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, in the analogous context of the law of defamation. That case emphasizes that the public interest is not a descriptive concept: it is not a matter of ascertaining what the public, or any subgroup, believes to be interesting, entertaining, or worth their attention: at para. 102. Instead, “there is necessarily a normative aspect to what is ‘genuinely’ a matter of public interest”: Sokoloff, at para. 18. That is, the statement must address an issue “about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Grant, at para. 105, citing Raymond E. Brown, The Law of Defamation in Canada, loose-leaf, (2008-Rel. 3) 2nd ed. (Scarborough: Carswell, 1999), vol. 2, at pp. 15-137 and 15-138. Again, the fact of notoriety or controversy is not sufficient in itself — one must assess the reason for the notoriety.

[19] The public interest includes such matters as the establishment, use, allocation, and maintenance of shared public goods, and therefore protects discussion and advocacy about the distribution of benefits and burdens of social life. But the public interest is not necessarily limited to matters of shared public life: Grant, at para. 106. There is, after all, a public interest in maintaining peaceful relations between persons in society and in drawing attention to acts of injustice. But the resolution of purely private disputes between more or less equals—disputes that have no immediate bearing on the rights or obligations of others—can seldom be a matter of public interest: Sokoloff, at para. 19.


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