|
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].
CASES
. 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.”
|
