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SLAPP - Public Interest Threshold

. Dent-X Canada v. Houde

In Dent-X Canada v. Houde (Ont CA, 2022) the Court of Appeal considered some subtle issues regarding the public interest requirement of the SLAPP rules:
[5] In holding that he was not satisfied that the statement related to a matter of public interest, the motion judge correctly instructed himself on the analysis from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at paras. 20, 26-31, and Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 99-109.

[6] The motion judge concluded that the nature of the statement as a whole was about a private dispute between businesses, and not related to a matter of public interest. He accepted that the quality of masks may be an issue closely connected to the public interest during a global pandemic. However, he noted that statement only mentioned the word “mask” once, at the outset. He found that there was nothing in the statement that spoke to the issue of quality of the masks, or suggested that the alleged fraud had anything to do with the quality of the masks, or that the alleged fraud put the public at risk. Rather, he found that the alleged fraud, when the post was read as a whole, related to the respondent missing delivery dates and not honouring a refund. He found that this related to a purely private dispute between businesses. He also found that the personal information in the statement about the reputation and integrity of people who worked at the respondent company was an expression that was personal in nature, and not about the quality of the products produced by the respondent.

[7] The appellants submit that the motion judge committed two errors in finding that the statement at issue did not relate to a matter of public interest. We address each alleged error in turn.

[8] First, the appellants submit that the motion judge “completely ignored” that the statement was, “in part at least, for the purpose of commencing a potential class action”. Relying on the decision of Das v. George Weston Limited, 2017 ONSC 5583, at para. 128, aff’d 2018 ONCA 1053, leave to appeal refused, [2019] S.C.C.A. No. 69, the appellants submit that class actions inherently relate to matters of public interest. We pause to note that the appellants’ counsel confirmed at the hearing that no class action was ever commenced.

[9] We reject the appellants’ argument that the motion judge failed to consider the reference to a class action at the outset of the statement. The motion judge was clearly alive to the fact that the title and first sentence of the statement at issue referred to a potential class action. He extracted the whole statement in his reasons (at para. 25). He referred to the title of the post in his reasons, when he noted that the Facebook post “only mentions the word ‘mask’ once at the outset”. That one mention of masks was in the title, which also referred to the potential class action. Further, in his costs endorsement, reported at 2021 ONSC 7433, the motion judge expressly referred to the mention in the statement of a potential class action, stating:
The underlying dispute was purely a private one. If the reason for the impugned communication was, as [the appellants] argued, to find other clients of [the respondent] for the purpose of a class action, one might expect the content and tone of its communication to be vastly different.
[10] The appellants’ submission confuses an expression referring to a matter of public interest with an expression relating to a matter of public interest. Pointes holds that the concept of whether particular expression relates to a matter of public interest must be broadly interpreted, and assessed by looking at the expression as a whole. However, Pointes also makes clear that merely referring to something of public interest is not the same as relating to a matter of public interest: Pointes at para. 29; see also Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at paras. 19, 26-35.

[11] The motion judge correctly considered the statement as a whole. He did not ignore the reference to a potential class action. Based on his analysis of the whole of the statement, he found it did not relate to a matter of public interest. We see no basis to interfere with that conclusion.

[12] The appellants’ second submission is that the motion judge erred by considering the issue of whether the statement related to a matter of public interest from the subjective perspective of the motives and manner of expression of the appellants, rather than based on the subject-matter of the statement, as is required by Pointes and Sokoloff.

[13] We disagree. The motion judge considered the statement as a whole, and correctly considered whether it related to a matter about which the public has genuine interest or concern, or affecting the welfare of citizens. He analyzed the subject-matter of the statement, and made factual findings that were based on an analysis of the whole statement. Contrary to the appellants’ assertion, he did not consider whether the statement related to a matter of public interest from the subjective perspective of the appellants’ motivations or manner of expression.
. Echelon Environmental Inc. v. Glassdoor Inc.

In Echelon Environmental Inc. v. Glassdoor Inc. (Ont CA, 2022) the Court of Appeal considered whether expression was in the public interest for purposes of a SLAPP defence:
[4] It is well established that on a motion under s. 137.1, expression is to be assessed as a whole. The question is whether “some segment of the community would have a genuine interest in receiving information on the subject”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 27; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 102. Although the public interest is to be interpreted broadly, not everything in which some members of the public are interested is a matter of public interest for the purpose of s. 137.1: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 19.

[5] The essential question is this: Understood in its context, what is the impugned expression really about? The motivation behind the expression is not legally relevant, nor are the merits of the expression and the manner in which the expression is conveyed, as there is no qualitative assessment of expression at this stage: Pointes, at para. 28; Sokoloff at para. 20.

[6] Whether expression relates to a matter of public interest involves a question of mixed fact and law that attracts a deferential standard of review. Provided that the motion judge made no extricable errors of law and no palpable and overriding errors of fact, the decision is entitled to deference.
. Levant v. DeMelle

In Levant v. DeMelle (Ont CA, 2022) the Court of Appeal conducted a classic SLAPP-defamation (libel) appeal analysis. In this quote it considers the SLAPP-threshhold issue of whether the expression was in the public interest:
a) Statements relating to a matter of public interest

[57] The appellants take issue with the motion judge’s conclusion that the impugned expressions were on a matter of public interest – a conclusion that he reached “with some reluctance”. In making their submissions, the appellants focus on the accusation that Mr. Levant is “a neo-Nazi sympathizer”. They say that the accusation is nothing more than a gratuitous insult and cannot be characterized as having anything to do with any matters of public interest.

[58] The flaw in the appellants’ argument on this point is that they isolate the “neo-Nazi sympathizer” statement from the rest of the article. That is not the proper approach to determining whether the expression in issue relates to a matter of public interest. Rather, it is the entire expression that must be considered. In other words, in this case, it is the article as a whole that must be considered in determining whether the expression is on a matter of public interest.

[59] That this is the proper approach is clear from the decision in Grant, which is referred to at some length on this subject in Pointes. In Grant, McLachlin C.J. said, at para. 101:
In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation.
. 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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