|
Torts - SLAPP - Dismissal [CJA 137.1(3)]. Hamer v. Jane Doe [against non-targeted defendants]
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 examines the issue of dismissing an action against defendants who were not a party to the CJA s.137.1(3) dismissal motion:(2) Second Issue: Did the motion judge err in dismissing the entire action against all defendants?
[126] In my view, the motion judge erred in dismissing the action against the respondents. She compounded that error by dismissing the entirety of the action against all defendants, including Ms. Melo and Mr. Price. It is clear from the provisions of s. 137.1 of the CJA that the action may be dismissed against only the moving party, not other defendants who did not participate in the motion.
[127] As earlier noted, s. 137.1(3) provides for the dismissal of an action “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”. Similarly, s. 137.1(4) refers to the moving party, not to all defendants: the responding party must demonstrate, among other things, that there are grounds to believe that “the moving party” has no valid defence and that the sufficiency of the harm caused by “the moving party’s expression” outweighs the public interest in that expression.
[128] Here, only the respondents brought a s. 137.1 motion to dismiss. As expressly stated in their notice of motion, they sought a dismissal of the appellants’ action against only themselves. As earlier discussed, the proper determination of the motion required the motion judge to look at the respondents and their defences, not those of the other defendants, Ms. Melo and Mr. Price. Ms. Melo and Mr. Price were not represented by the respondents’ counsel, nor did they participate in the respondents’ motion. There was no basis to grant relief that was not requested nor required as a result of the dismissal of the action against the respondents.
[129] The respondents resist this ground of appeal, arguing that it is inconsistent with a purposive reading of the statue and the clear direction of this court in Schwartz v. Collette, 2023 ONCA 574. I disagree.
[130] Schwartz has no application to this case. Schwartz confirmed the broad jurisdiction that motion judges have under s. 137.1(3) to dismiss the entirety of a plaintiff’s action, even where some of the claims brought are “separate and distinct” from those at issue on the motion: at paras. 5, 6. This has nothing to do with the question here of whether the wording of s. 137.1(3) allows a court to dismiss a proceeding against a party who has not brought a motion to dismiss.
[131] The “purposive” approach suggested by the respondents ignores the plain language of s. 137.1(3) that only permits the court to dismiss the action against a party who brings the motion to dismiss. The court has no jurisdiction to dismiss the action against a party who does not bring or otherwise participate in the motion to dismiss.
[132] The respondents submit in the alternative that if s. 137.1(3) does not permit motion judges to dismiss against non-moving parties, this court should amend the respondents’ notice of motion to add the non-moving parties. I would not accede to this request, which is inconsistent with their position that they neither speak for nor represent those parties. This court has no jurisdiction in these circumstances to amend the notice of motion to include them.
[133] The notice of appeal was not served on Ms. Melo or Mr. Price. Ms. Melo has not participated in the action or the motion. As noted, that name is a pseudonym for a person who has not been located. In these circumstances, setting aside the improperly granted dismissal of the action against her does not require any further notice to her. I am mindful that Mr. Price was served with the respondents’ motion to dismiss and, while he did not participate in it, achieved the benefit of the dismissal of the appellants’ action against him. However, relief was granted that he did not request and that was beyond the power of the motion judge to grant. Moreover, the relief granted in his favour was not based on a separate analysis of his position but was completely derivative of the relief she granted to the respondents - relief I have found should not have been granted to them at all. Accordingly, even in the absence of notice to Mr. Price of this appeal, the dismissal order against him must be set aside. I do so without prejudice to any s. 137.1 motion Mr. Price may chose to bring and without prejudice to any objection by the appellants to his bringing such a motion given Mr. Price’s failure to participate in the respondents’ motion.
|
