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Torts - SLAPP - Critique. Burjoski v. Waterloo Region District School Board
In Burjoski v. Waterloo Region District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from the denial of a SLAPP motion, here where a school board defendant was sued for defamation in the context of disputes over transgendered-issued books in school libraries.
Here the court criticizes the to-date application of the CJA 137.1 SLAPP regime, emphasizing it's correct 'screening mechanism' nature:(1) Governing principles
[41] Section 137.1 of the CJA was intended to create an inexpensive and speedy screening mechanism to weed out abusive actions, typically defamation proceedings, that unduly limit expression on matters of public interest rather than seek redress for a bona fide claim. This new mechanism would allow courts to quickly identify and deal with such abusive lawsuits, minimizing the emotional and financial strain on defendants as well as the associated waste of court resources. At the same time, since s. 137.1 did not alter the substantive law of defamation, it would preserve the right of persons whose reputations had been wrongfully damaged to access the civil justice system to seek redress.
[42] The practical effect of the legislation appears to be rather different from what was originally anticipated. As Pepall J.A. observed in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 35, leave to appeal refused, [2023] S.C.C.A. No. 172, s. 137.1 has spawned a plethora of complex and protracted procedural litigation that is “expensive, time-consuming and open to abuse”. The mandatory 60-day time limit for resolving s. 137.1 motions is routinely ignored and, rather than screening out obviously unmeritorious claims at an early stage, the proceedings typically involve “the entire trial being played out in advance.” (Park Lawn, at para. 35, citing Tamming v. Paterson, 2021 ONSC 8306, at para. 7, per Myers J.) While the Legislature’s intention in enacting s. 137.1 was to create a preliminary hurdle, “the process advanced in practice is more like a marathon.”
[43] Writing in February 2023, Pepall J.A. noted the fact that in the prior two years, the Court of Appeal had heard about 15 appeals of anti-SLAPP motion decisions. Yet this is the 16th anti-SLAPP appeal decided by this court in the approximately 20 months since Park Lawn was released, and the third in the past month alone.
[44] Commentators on anti-SLAPP litigation have increasingly drawn attention to the fact that anti-SLAPP motions are often complex, lengthy and expensive. Because of the high stakes involved, particularly for plaintiffs who risk having their action dismissed at a preliminary stage and having to pay full indemnity costs, most anti-SLAPP motions typically devolve into a detailed examination of the merits, including evidentiary disputes over proof of harm and causation. The fact that there is an automatic right of appeal even where the s. 137.1 motion has been dismissed, which would normally require leave given the interlocutory nature of such an order, adds to the costs and delays. Counsel involved in such litigation have suggested that in some cases anti-SLAPP litigation has proven more expensive and time consuming, both for plaintiffs and defendants, than defamation proceedings prior to the enactment of s. 137.1: see Hilary Young, “Canadian Anti-SLAPP Laws in Action” (2022) 100:2 Can. B. Rev. 186, at 215-21; Justin Safayeni, “Anti-SLAPP laws in Ontario: recent trends and lingering uncertainties” (7 May 2024), online (blog): [perma.cc/HNA3-PBXP].
[45] In an effort to assist courts and litigants in realizing the original vision that gave rise to s. 137.1, the Supreme Court of Canada has provided helpful guidance in its seminal decisions in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587; Bent; and Hansman. That guidance has been amplified and supplemented by a number of this court’s recent decisions including, in particular, Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90; Marcellin v. London (Police Services Board), 2024 ONCA 468; 40 Days for Life v. Dietrich, 2024 ONCA 599; and Hamer v. Doe, 2024 ONCA 721.
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(d) Conclusion on weighing
[102] We find that the harm experienced by the respondent outweighs the public interest attaching to the Board Chair’s speech. This is not a case in which the action is abusive, strategic or otherwise subject to the anti-SLAPP regime. This is not a proceeding whose purpose or effect engages the key rationale underlying s. 137.1.
[103] The comments below of van Rensburg J.A. in Marcellin, at para. 118, have direct application to this case:On the other hand, a dismissal of the Action at this early stage would prevent [the plaintiff] Mr. Marcellin from having any recourse to remedy harm to his reputation that was caused by the respondents. As the Supreme Court stated in Pointes Protection, the anti-SLAPP provision ensures that “a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim”: at para. 48. In my view the Action is a proportionate response by Mr. Marcellin to the respondents’ conduct. What is “really going on” here is not an improper attempt through litigation to suppress expressions by the respondents that are in the public interest; rather the Action is an attempt to remedy seemingly legitimate harm suffered as a result of the respondents’ conduct that was directed toward Mr. Marcellin and his reputation. “This is not the type of case that comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage, nor does it come within the language of the statute requiring such a dismissal”: Bent, at para. 172. [104] In sum, while we charted a different path than the motion judge, we find ourselves in agreement with his ultimate conclusion that the respondent should be permitted to advance her claim. . Canadian Tire Corporation, Limited v. Eaton Equipment Ltd.
In Canadian Tire Corporation, Limited v. Eaton Equipment Ltd. (Ont CA, 2023) the Court of Appeal (the entire three judge panel) made critical comments on the CJA 137.1 SLAPP regime:[12] SLAPP motions were intended to be a relatively summary procedure, designed to weed out unmeritorious actions that target expressions on matters of public interest. However, they have proven to be an unwieldly, expensive, and time-consuming remedy. We decline to contribute further to that problem by expanding the threshold test to include an investigation of a plaintiff’s motive in commencing litigation and consideration of factors that would apply had the motion passed the threshold stage. . Park Lawn Corporation v. Kahu Capital Partners Ltd.
In Park Lawn Corporation v. Kahu Capital Partners Ltd. (Ont CA, 2023) the Court of Appeal considered an appeal of a dismissal of a SLAPP motion brought by the plaintiff/appellant against a counterclaim for breach of contract and defamation.
These quotes reflect a very useful 2023 critique of SLAPP motions:c) Practice Considerations
[34] Unfortunately, it would appear that the practice has evolved into quite a different state than that anticipated by the Legislature and by Pointes Protection and Bent.
[35] In Tamming v. Paterson, 2021 ONSC 8306, at paras. 7-9, Myers J. observed that anti-SLAPP motions have become expensive, time-consuming and open to abuse:These motions tend to be complex and expensive proceedings. Although they are not intended to involve a deep dive into the merits or even a detailed review akin to a motion for summary judgment, they usually do represent virtually the entire trial being played out in advance….
Despite the Legislature’s intention to create a preliminary hurdle, the process advanced in practice is more like a marathon. To that end, the mandatory 60-day time limit for resolving these motions is routinely ignored. Counsel on both sides usually need more time and, in Toronto at least, motion appointments are backlogged by far more than 60 days.
We are seeing an ever-increasing volume of anti-SLAPP motions in Toronto. The powerful remedy and the costs protections for the moving defendants make these motions attractive. The size of the endeavour can also be seen as an incentive for abusive SLAPP plaintiffs and others with incentive to expand proceedings. [Emphasis added.] [36] In “Canadian Anti-SLAPP Laws in Action” (2022) 100:2 Can. B. Rev. 186, Professor Hilary Young conducted a review of Ontario and British Columbia’s[1] experience with anti-SLAPP litigation. Her research is reflective of many of the same observations made by Myers J. in Tamming. She noted, for example, that one criticism of the legislation is that the costs consequences may incentivize parties to bring an anti-SLAPP motion despite the underlying claim not being a SLAPP because even if the motion is unsuccessful, a losing moving party often will not have to pay any costs: Young, at p. 197.
[37] Further, as noted by Myers J. and Professor Young, these motions tend to be expensive: Tamming, at para. 7; Young, at p. 206. The case under appeal is a good example of this: the appellants delivered a costs outline to the motion judge seeking $376,567.78 for the costs of the motion and dismissal of the defamation counterclaim. This did not include costs of the appeal.
[38] To address the objectives of the legislation, it bears repeating that the emphasis of the motion should be on the “crux” or “core” of the analysis, namely the weighing exercise. This should not involve a trial of the issue or as some have put it, a “trial in a box”: Young, at p. 199; Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, at para. 97. Rather, the motion is a screening procedure. At the third stage of the test, the weighing exercise, a technical, granular analysis is not required. Instead, as directed by the Pointes Protection and Bent decisions, the motion judge should step back and ask what is really going on.
[39] With this direction in mind and recognizing that an anti-SLAPP motion is meant to be efficient and economical, I would suggest that, as a guideline, the costs of such a motion should not generally exceed $50,000 on a full indemnity basis, although there will be exceptions and motion judges always have the power to award less, more or nothing as they see fit in the circumstances of each case.[2] If the parties and the motion judge focus on the purposes that animate the anti-SLAPP provision, the inquiry will not generally be a difficult one for a motion judge. Indeed, typically the conclusion should be obvious and one readily reached by a motion judge.
[40] I would also add that the cost of litigation is a plague that has infected our system of justice and serves to undermine its efficacy. Here the Legislature enacted a provision designed to help people avoid a costly defamation lawsuit and preserve the opportunity for public discourse and expression, but at the same time allow legitimate actions to proceed. The procedure was to be efficient and inexpensive. Ironically, a procedure intended to avoid costly, unmeritorious, protracted defamation lawsuits has developed into a platform for sometimes costly, unmeritorious and protracted litigation. This is not to say that anti-SLAPP motions should not be brought, but rather the parameters of the ensuing litigation should be limited in scope. Providing a guideline for costs may serve to dampen the enthusiasm, no doubt well intentioned, to over-litigate an anti-SLAPP motion.
[41] In addition, consistent with the legislation, anti-SLAPP motions should be heard no later than 60 days after the notice of motion is filed: Courts of Justice Act, s. 137.2(2). Subject to court availability, motion judges should generally compel compliance with this 60-day time parameter. The timeframe for these motions should act as a reminder that they are meant to be limited in scope.
[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: Bent, 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”). This is especially so with respect to a motion judge’s weighing of the public interest: Bangash v. Patel, 2022 ONCA 763, at para. 12. 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.
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