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Torts - SLAPP - Appeal
COMMENT
Appeal 'routes' for SLAPP dismissal motions (regardless of whether they result in interlocutory or final orders, and regardless of the value claimed [ie. above or below $50k]) are not dealt with under the normal Superior Court appeal route rules - instead they are heard, as of right, by the Court of Appeal [CJA 6(1)(d), 19(1.0.1]]. As well, such motions should be commenced "as soon as practicable after the appellant perfects the appeal" [CJA 137.3].
. Li v. Barber
In Li v. Barber (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal from an interlocutory pre-certification order that dismissed the defendant's CJA 137.1 SLAPP motion, here where plaintiff Ottawa neighbours sued for private and public nuisance for trucker's protest activities.
Here the court reviews it's role as an appeal court in this SLAPP context:The scope of an appeal court’s review of a s. 137.1 order
[20] Just as the scope of the examination performed by a judge hearing a s. 137.1 motion is limited in nature, so too the scope of an appeal court’s review of a s. 137.1 order is limited.
[21] An appeal court does not perform a fresh analysis of a party’s s. 137.1 motion. Quite the contrary.
[22] As the Supreme Court explained at para. 77 of its decision in Bent, “[a] motion judge’s determination on a s. 137.1 motion will typically be entitled to deference upon appeal, absent reviewable error.” Examples of the sorts of reviewable errors that remove the need for an appellate court to defer to a motion judge are: (i) applying the wrong legal test on a s. 137.1 motion; (ii) misconstruing the law regarding the constituent elements of a claim and its defences; (iii) misapprehending the evidence; and (iv) where a judge has made a finding of fact, committing a palpable and overriding error of fact: Bent, at para. 77.
[23] In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, leave to appeal refused, [2023] S.C.C.A. No. 172, this court reminded litigants about the deferential standard of review that applies on appeals from an order made under s. 137.1 stating, at para. 42:Lastly, it bears repeating that a motion judge’s determination on a s. 137.1 motion will be entitled to deference on appeal absent an error in law or palpable and overriding error. This is especially so with respect to a motion judge’s weighing of the public interest. Parties should be mindful of this standard of review when seeking to appeal an order in anti-SLAPP proceedings. As mentioned, this court has seen a proliferation of anti-SLAPP appeals. [Citations omitted.] . Hamer v. Jane Doe [SOR]
In Hamer v. Jane Doe (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a successful SLAPP CJA s.137.1 motion.
Here the court sets out the SOR for SLAPP appeals:[31] In analyzing these grounds of appeal, I am mindful of the applicable deferential standard of appellate review owed to the motion judge’s determination on a s. 137.1 motion. Absent an error in law or a palpable and overriding error of fact or mixed fact and law, there is no basis for appellate intervention: Marcellin v. London (Police Services Board), 2024 ONCA 468, at para. 57; Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 42, leave to appeal refused, [2023] S.C.C.A. No. 172; Bent, at para. 77.
[32] However, if such an error is established, the court may consider the matter afresh: Marcellin, at para. 57. As I shall explain, that is the case here. . Hamer v. Jane Doe [remedy]
In Hamer v. Jane Doe (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a successful SLAPP CJA s.137.1 motion.
The court notes that on a successful SLAPP appeal, the appeal court can avoid remitting the case back down, and rather decide it themselves:[31] In analyzing these grounds of appeal, I am mindful of the applicable deferential standard of appellate review owed to the motion judge’s determination on a s. 137.1 motion. Absent an error in law or a palpable and overriding error of fact or mixed fact and law, there is no basis for appellate intervention: Marcellin v. London (Police Services Board), 2024 ONCA 468, at para. 57; Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 42, leave to appeal refused, [2023] S.C.C.A. No. 172; Bent, at para. 77.
[32] However, if such an error is established, the court may consider the matter afresh: Marcellin, at para. 57. As I shall explain, that is the case here. . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal notes that on a successful appeal from a SLAPP motion, the matter is not to be remitted back down to the motion judge - but decided by the appellate court:[35] A motion judge’s determination on an anti-SLAPP motion is entitled to deference on appeal absent an error of law or palpable and overriding error: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 77; Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at para. 21 (“CUPW”); Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 478 D.L.R. (4th) 514, at para. 42. If such an error has been established, it is up to this court on appeal to consider the matter afresh: Nanda v. McEwan, 2020 ONCA 431, 450 D.L.R. (4th) 145, at paras. 47-49. . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the SLAPP appellate standard of review:[35] A motion judge’s determination on an anti-SLAPP motion is entitled to deference on appeal absent an error of law or palpable and overriding error: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 77; Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at para. 21 (“CUPW”); Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 478 D.L.R. (4th) 514, at para. 42. .... . 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 stated the appellate standard of review for SLAPP matters:[11] The motion judge’s weighing of the competing interests under s. 137.1 is entitled to deference on appeal, absent an identifiable legal error, or a palpable and overriding factual error: 1704604 Ontario Ltd., at para. 97. As this court noted in 1704604 Ontario Ltd., at para. 97, “[d]eference is important, as there is no reason to think that a simple recalibration of the competing interests by an appeal court will provide a more accurate assessment.”
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