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Torts - SLAPP - Harm-Expression Balancing (6). 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.
The court considered the harm-expression balancing [CJA 137.1(4)(b)], here in the context of public protest:[107] The appellants submit the motion judge erred in his analysis of the public interest hurdle contained in CJA s. 137.1(4)(b), which provides, in part, that:(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
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(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. [108] In Pointes Protection, the Supreme Court described the weighing exercise set out in s. 137.1(4)(b) as the “core” or “crux” of the s. 137.1 analysis, because it “is open-endedly concerned with what is at the heart of the legislation at issue and anti-SLAPP legislation generally: the weighing of the public interest in vindicating legitimate claims through the courts against the resulting potential for quelling expression that has already been determined under s. 137.1(3) to be related to a matter of public interest”: at paras. 33, 62, and 82.
[109] As the Supreme Court further observed at para. 81 in Pointes Protection:[T]he open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them: s. 137.1(4)(b) effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit – a fundamental value in its own right in a democracy – affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. ....
[115] I would go further to state that I agree with the motion judge’s conclusion that it is in the public interest for the questions of the competing interests raised by this proceeding to be determined by the courts.
[116] Section 137.1 applies to public interest expressive conduct in a large variety of circumstances, including political protest in public places such as occurred in the present case. Earlier in my judicial career I decided a case that raised similar issues about the interplay between political protest and the use of public spaces. In Batty v. Toronto (City), 2011 ONSC 6862, 108 O.R. (3d) 571, which was also known as the Occupy Toronto case, protesters had turned a large downtown public park into a tent-city political protest site. After the lapse of a month, the City of Toronto sought to evict them from the park. The protesters challenged the eviction notice in court.
[117] In Batty, I opened my reasons with the suggestion that the interplay between public political protest and its impact on the community in which the protest takes place raises two fundamental questions:How do we live together in a community? How do we share common space? [118] I ventured that guidance on how to answers those fundamental questions can be found in the Preamble to our Canadian Charter of Rights and Freedoms. I suggested the Preamble identified two principles of practical political philosophy that govern public political interactions amongst Canadians: first, as human beings, when dealing with our fellow citizens, whether we are part of the governed or part of those who govern, we all must display humility; and, second, we are not unconstrained free actors but must all live subject to some rules. While through our adoption of the Charter Canadians have placed great emphasis on the liberty of the individual – including the right to robust and, indeed, challenging political expression – at the same time the Charter reminds us that individual action must always be alive to its effect on other members of the community since limits can be placed on individual action as long as they are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[21]
[119] The weighing that lies at the core of s. 137.1, when applied to legal proceedings that involve political expression in public places, in a sense is a practical manifestation of the larger question about our political interaction as Canadians, namely how do we live together in a community? I think the motion judge’s reasons capture the essence of that question, as expressed in the weighing exercise that lies at the heart of the statutory provision. As well, I agree with him that is in the public interest for the questions regarding the competing interests raised in this proceeding be determined by the courts. Accordingly, I see no basis for appellate intervention in the weighing exercise he performed under s. 137.1(4)(b). . Benchwood Builders, Inc. v. Prescott
In Benchwood Builders, Inc. v. Prescott (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this from a defendant-successful SLAPP CJA s.137.1 motion.
Here the court considers the harm-expression aspect of the anti-SLAPP motion test:(a) The Governing Principles Underpinning s. 137.1(4)(b)
[62] The public interest weighing stage is the crux of the anti-SLAPP analysis.[33]
[63] Unlike the initial public interest requirement under s 137.1 (3), the focus at this stage is “what is really going on” in the case; it is necessary to assess the quality of the expression, including the motivation behind it, the medium through which it was expressed, and its subject matter.[34]
[64] The closer an expression is to any of the fundamental values of s. 2(b) of the Charter – freedom of thought, belief, opinion and expression – the greater the public interest will be in protecting it.[35] The cases have identified several factors:. Personal attacks and defamatory statements are only remotely related to these core values.[36] Consequently, there is less public interest in protecting these types of expressions.[37]
. Statements that are exaggerated or inaccurate, or contain deliberate misrepresentations also reduce the public interest protection afforded to those expressions.[38]
. Expressions made for the purpose of interfering with another’s ability to express their views may also attract less public interest protection.[39]
. The motivation behind the subject expressions can lower the public interest in protecting the expression.[40]
. The presence of “classic SLAPP” indicia, which include: whether the plaintiff has a history of using litigation or the threat of litigation to silence critics; a financial or power imbalance that strongly favours the plaintiff; a punitive or retributory purpose animating the action; and minimal or nominal damages suffered by the plaintiff.[41] (b) Application of the Governing Principles to this Appeal
[65] The motion judge undertook the analysis required by s. 137.1(4)(b) in case the analysis leading her to dismiss the action under s. 137.1(4)(a)(ii) – no valid defence – was wrong. She went on to find that Benchwood had failed to establish that any harm suffered as a result of the Homeowners’ defamatory statements was serious, because there were “other factors that may have had an effect on [Benchwood’s] reputation,” citing Pointes, at para. 72: “[E]vidence of a causal link between the expression and harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm.”
[66] As the motion judge noted, one key problem for Benchwood is that several of the negative events cited as harming Benchwood’s business seem to have preceded the Homeowners’ postings, including the non-renewal of Benchwood’s membership in the Niagara Home Builders’ Association in October 2020, which came about as the result of customer complaints. Further, the harms asserted, such as contract cancellations, were not backed up by evidence that the Homeowners’ postings were the cause. The Benchwood firm “appears to be doing well”.
[67] The Homeowners’ statements concerned a home renovation gone wrong. The postings did not relate to a matter of public interest or to safeguarding the fundamental value of public participation in democracy, to which personal attacks and defamatory statements are only remotely related. This was a private dispute. I repeat what this court said in Grist: “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.” These words also capture this dispute.
[68] There is little here partaking of classic SLAPP indicia – no power imbalance, no history of Benchwood using litigation to silence critics, although there is some doubt about whether the damages claimed are more than merely nominal.
[69] Then there is the presence of malice. The motion judge addressed this question squarely:The plaintiffs have alleged malice on the part of the defendants in making the impugned statements. A general plea of malice without further particulars is not sufficient. In my view, I am satisfied that the dominant motive for the defendants to post the comments they did was as a warning to other consumers after they saw photos of their home posted on the plaintiffs’ [Benchwood’s] social media. [70] With respect, this analysis falls into the problems with s. 137.1(4)(a)(ii) in the context of a defamation action that I raised earlier at paras. 53 to 56. The interest in protecting the expression is reduced by personal attacks and defamatory statements. Statements that are exaggerated, inaccurate or contain deliberate misrepresentations also reduce the public interest in protecting them. Perhaps the Homeowners’ dominant motive was to warn other consumers. But that was not their only motive. Consider these statements: Ms. Prescott posted that Mr. Slaven and his subcontractors were “in on this dishonest operation together” and “operate in a dishonest manner;” Mr. Green referred to Mr. Slaven as “a miserable con artist” and a “dirtbag”, and accused him of threatening women and making false assault charges against women. The statements themselves appear to be particulars of malice. The accusations go well beyond a complaint about Benchwood walking off the job and doing some of its work poorly.
[71] This is a case in which the straight logic of a private dispute should apply. Section 137.1 does not apply. There is no reason to stop the Benchwood defamation action from proceeding. The tension between reputation and free speech that is endemic to anti-SLAPP motions resolves by giving priority to reputation in this case.
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