|
Torts - SLAPP - General (3). Teneycke v. McVety
In Teneycke v. McVety (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, this from a dismissed defendents' anti-SLAPP CJA s.137.1(3,4) motion.
Here the court nicely summarizes the elements of the anti-SLAPP test:Test on an anti-SLAPP motion
[31] In combination, ss. 137.1(3) and (4) of the Courts of Justice Act set out the four-part test on an anti-SLAPP motion.
[32] Section 137.1(3) provides that:On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding 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. [33] Section 137.1(4) provides that a judge shall not dismiss an action under s. 137.1(3) if the respondent on the motion satisfies the judge that:(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(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. [34] The Supreme Court and this court have held that s. 137.1 of the Courts of Justice Act seeks to give effect to two equally important legislative purposes. The first purpose is to protect free speech by screening out at an early stage strategic lawsuits that adversely affect debate and participation in matters of public interest. The second purpose is to ensure that people can seek redress for harm to their reputations caused by defamatory statements: Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, at para. 47. Section 137.1 seeks to achieve a “delicate equilibrium” between these goals: Hamer v. Jane Doe, 2024 ONCA 721, at para 33; Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 2. This enables the courts to “quickly identify and deal with strategic lawsuits, and ensure abusive litigation is stopped but legitimate action can continue”: Hamer, at para. 36.
[35] The Supreme Court and this court have also emphasized that s. 137.1 of the Courts of Justice Act is a screening mechanism intended to proceed on a limited evidentiary record. It is not meant to be a motion for summary judgment. When considering an anti-SLAPP motion, judges should therefore only engage in a limited weighing of the evidence for the purpose of considering the criteria under s. 137.1. Accordingly, “contested issues of fact and credibility and competing inferences drawn from contested facts are not to be resolved on a s. 137.1 motion”: Hamer, at para. 37; see also 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 52.
[36] At the merits stage of the analysis under s. 137.1(4)(a), the court is to undertake only a preliminary assessment of the claim and defences to determine the overall prospects of success: Pointes, at para. 59; 40 Days for Life v. Dietrich, 2024 ONCA 599, at para. 43, leave to appeal requested, [2024] S.C.C.A. No. 396. At this stage, the respondents on an anti-SLAPP motion bear the onus of establishing that there are “grounds to believe” that the proceeding has substantial merit, and that the defendant has no valid defence. The “grounds to believe” standard is lower than a balance of probabilities. The respondents on the motion are only required to show that there is a basis in the record and the law to conclude that the defences will not succeed: Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at paras. 50-51; 40 Days, at para. 43.
[37] The weighing exercise at s. 137.1(4)(b) of the Courts of Justice Act is the “crux of the analysis” on an anti-SLAPP motion. Even if a claim has technical merit, it may be dismissed if the public interest in protecting the expression at issue outweighs the public interest in allowing the proceeding to continue: Pointes, at paras. 18, 62; 40 Days, at para. 62.
[38] On appeal, a motion judge’s determination that the anti-SLAPP motion should be dismissed is entitled to deference. This court should not intervene unless the motion judge committed an error of law or a palpable and overriding error of fact or mixed fact and law. The motion judge’s weighing exercise under s. 137.1(4)(b) of the Courts of Justice Act is entitled to particular deference because the inquiry at this stage is “open-ended and highly discretionary”: Burjoski, at para. 47.
[39] In the event the motion judge made a reversible error, this court may consider the matter afresh: Marcellin v. London (Police Services Board), 2024 ONCA 468, at para. 57, leave to appeal requested, [2024] S.C.C.A. No. 350; Hamer, at para. 32. . 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 extensively summarizes SLAPP doctrine as it has developed since it's inception in 2015:[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.
[46] Following from that guidance, we summarize the governing principles which are central to the disposition of this appeal and are key to ensuring that the remedy for the mischief that gave rise to the enactment of s. 137.1 is efficient and effective.
[47] These key governing principles are as follows:a. As the jurisprudence of both the Supreme Court and this court has repeatedly emphasized, there are two equally important legislative purposes underlying the enactment of s. 137.1. The first is to protect free speech by screening out at an early stage obviously unmeritorious defamation claims that adversely affect debate and participation on matters of public interest. The second is to ensure that persons may nevertheless continue to seek redress for serious harm to their reputation resulting from defamatory statements. As Roberts J.A. put recently in Hamer, at paras. 33-36, s. 137.1 seeks to achieve “a delicate equilibrium” between these twin goals, enabling courts to “quickly identify and deal with strategic lawsuits, and ensure abusive litigation is stopped but legitimate action can continue”. See also Pointes, at para. 9; Bent, at para. 2.
b. The interpretation of s. 137.1 must be guided by the recognition that it is a screening mechanism, intended to be heard within 60 days of the notice of motion on a limited evidentiary record. Courts must carefully guard against conflating the screening procedure under s. 137.1 with a motion for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Courts should therefore engage in “only a limited weighing of the evidence for the specific aim of assessing the legislative criteria under s.137.1”, such that “contested issues of fact and credibility and competing inferences drawn from contested facts are not to be resolved on a s. 137.1 motion”: Hamer, at para. 37; Pointes, at para. 52.
c. The merits-based hurdle in s. 137.1(4)(a) is not a high bar. The evidentiary burden on the responding party is lower than a balance of probabilities. The responding party need establish only “grounds to believe”, that is, some basis in the record and the law, for finding that the proceeding has substantial merit and that the moving party has no valid defence: Bent, at para. 103; Mondal, at paras. 30, 51, and 56; Marcellin, at para. 10; Hamer, at paras. 45-46. Any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and capable of belief”: Bent, at para. 88. Further, a determination that the asserted defences “could go either way in the sense that they could be accepted or rejected is a finding that the defences may not succeed”: Hamer, at para. 49.
d. The crux of the analysis under s. 137.1 is the weighing exercise under s. 137.1(4)(b). It is at this stage that the intention behind the legislation is given expression and force. It is here that the court determines whether the public interest in the impugned speech is such that it should not be silenced or chilled by the threat of litigation. It is here that the strategy in allegedly strategic litigation is potentially identified and exposed. It is here that the court considers “what is really going on” and assesses the extent to which “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 society”: Pointes Protection, at para. 81.
e. In the weighing exercise under 137.1(4)(b), the responding party need not prove the existence of harm or that such harm was caused by the moving party’s expression but simply provide evidence from which an inference of the likelihood of harm and causation may be drawn: Park Lawn, at para. 46; Marcellin, at para. 89; Hamer, at para. 94.
f. Presumed harm or bald assertions of harm will not, in themselves, be sufficiently serious such that the public interest in permitting a respondent’s proceeding to continue would outweigh the public interest in protecting the moving party’s expression on a matter of public interest.
g. At the same time, the s. 137.1 framework is “not a ‘carte blanche’ to defame”: Park Lawn, at para. 33. Reputation plays a central role in human societies and is widely recognized as “one of the most valuable assets a person or business can possess”. It thus carries considerable weight in the weighing exercise under s. 137.1: Pointes Protection, at para. 69; Bent, at para. 146; Marcellin, at para. 96. For this reason, harm to one’s reputation, even if not quantifiable, is generally very serious: Hamer, at para. 113.
h. In considering the public interest in protecting the moving party’s expression, “the quality of the expression, and the motivation behind it, are relevant here”: Pointes Protection, at para. 74 (emphasis in original). Not all expression is created equal. On the one hand, the closer the expression is to any of the core values underlying the protection of freedom of expression under s. 2(b), including the search for truth, participation in political decision-making, and diversity in forms of self-fulfillment and human flourishing, the greater the public interest in protecting it. On the other hand, statements that contain deliberate falsehoods and gratuitous personal attacks are “very tenuously” related to the core values which underlie s. 2(b) and there will be less of a public interest in protecting such statements: Pointes Protection, at paras. 76-77; Bent, at para. 163; Marcellin, at para. 102.
i. The weighing of interests under s. 137.1 is an “open-ended” exercise which requires the motion judge to consider all relevant factors. These include whether the hallmarks or indicia of a classic SLAPP are present, such as: 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: Marcellin, at para. 111. Other factors that may be relevant include the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim may provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation: Pointes Protection, at para. 80.
j. A motion judge’s determination on a s. 137.1 motion is entitled to deference on appeal, absent an error in law or palpable and overriding error of fact or of mixed fact and law: Bent, at para. 77; Such deference is particularly appropriate in respect of the motion judge’s weighing exercise under s. 137.1(4)(b), which is open-ended and highly discretionary. However, if a motion judge commits a reversible error, this court may consider the matter afresh. Hamer, at para. 32; Marcellin, at paras. 57, 88, and 118-19; 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at paras. 35, 92, and 97-98, leave to appeal refused, [2023] S.C.C.A. No. 432. . Hamer v. Jane Doe
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 canvasses the CJA s.137.1 SLAPP regime, in particular contrasting it with the summary judgment procedure:(1) First Issue: Did the motion judge err in her application of s. 137.1(4)?
(a) Section 137.1 of the CJA and its general legislative purposes
[33] In my view, the motion judge’s analysis did not adequately consider both legislative purposes underlying s. 137.1 of the CJA, which inform the “delicate equilibrium” referenced by the Supreme Court in Bent, namely: protection of free speech; and the protection of one’s reputation through a legitimate action. As I shall explain, the motion judge effectively focussed on the protection of free speech to the exclusion of the protection of one’s reputation through a legitimate action.
[34] Both legislative purposes informed the enactment of s. 137.1 of the CJA. This section stems from the Anti-SLAPP Advisory Panel that was convened in 2010 by the Attorney General of Ontario to advise the government on how to respond to the proliferation of strategic lawsuits in matters of public interest. In its final report, the panel recommended Ontario enact legislation that offers a broad scope of protection to legitimate participation in public matters, while simultaneously ensuring that persons may seek legal protection from harm to their reputations: Ontario, Ministry of the Attorney General, Anti-SLAPP Advisory Panel: Report to the Attorney General, (Toronto: 2010), at para. 22. The panel’s report emphasized the need for a balanced and proportional legislative approach: while “an adverse effect on the ability of persons to participate in discussion on matters of public interest should not be sufficient to prevent the plaintiff’s action from proceeding…the fact that a plaintiff’s claim may have only technical validity should not be sufficient to allow the action to proceed”: Final Report, at paras. 36, 37; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 9.
[35] The debates in the Legislative Assembly of Ontario indicate an intention for the proposed legislation to represent this balanced approach. At the second reading of the bill, the Attorney General of Ontario at the time, Madeleine Meilleur, stated: “Our proposed legislation strikes a balance that will help ensure abusive litigation is stopped, but legitimate action can continue… Anyone who has a legitimate claim of libel or slander should not be discouraged by the legislation”: Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 41A, 1st Sess., 41st Parl., December 10, 2014, at p. 1975. The test adopted by the legislature in s. 137.1 of the CJA is substantively similar to the one proposed in the panel’s Final Report: Pointes, at para. 9.
[36] Accordingly, s. 137.1 provides a preliminary screening mechanism under ss. 137.1(3) and (4) to prevent strategic lawsuits in matters of public interest: Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at paras. 49, 50; Pointes, at para. 16. The objective is to quickly identify and deal with strategic lawsuits, and ensure abusive litigation is stopped but legitimate action can continue: Pointes, at paras. 61, 62.
[37] Because the assessment under s. 137.1 is meant to be a preliminary screening mechanism, courts must carefully guard against conflating the summary vetting procedure under s. 137.1 with a motion for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and ensure that they engage in only a limited weighing of the evidence for the specific aim of assessing the legislated criteria under s. 137.1: Pointes, at para. 52; Thorman v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577, at para. 4; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at para. 55, leave to appeal refused, [2021] S.C.C.A. No. 87. Contested issues of fact and credibility and competing inferences drawn from contested primary facts are not to be resolved on a s. 137.1 motion: Pointes, at para. 52; Bent, at para. 65; Subway Franchise Systems of Canada, Inc., at para. 55. As the Supreme Court instructed in Pointes, at para. 52, a motion judge deciding a s. 137.1 motion “should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings are more developed.”
[38] Subsection 137.1(3) of the CJA provides that “[o]n motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding 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” (emphasis added). As my emphasis makes clear, the relief under this subsection is available only to the moving party who made or published the expression in issue. I shall return to this point later in these reasons.
[39] The initial onus is on the moving party to show on a balance of probabilities that the proceeding arises from an expression made by the moving party that is related to a matter of public interest: Pointes, at para. 31; Bent, at para. 87. If the moving party satisfies that onus, the onus then shifts to the responding party to satisfy the criteria under s. 137.1(4): Pointes, at para. 33; Levant v. DeMelle, 2022 ONCA 79, 79 C.P.C. (8th) 437, at para. 19, leave to appeal refused, [2022] S.C.C.A. No. 88.
....
(b) Requisite Analysis under s. 137.1(4)
[42] Subsection 137.1(4) reads as follows:(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that:
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(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. [Emphasis added.] [43] I have emphasized the provisions of s. 137.1(4) that set out the standard to be applied in the court’s determination in keeping with the function of s. 137.1(4) as an initial screening mechanism. . 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Ont CA, 2024) the Ontario Court of Appeal dismissed a SLAPP appeal, here in a political abortion dispute - and has useful comments generally on the nature of the SLAPP regime:[1] The parties to this action disagree profoundly about the ethics of abortion and abortion protesting.
[2] 40 Days for Life (“40 Days”) advocates for an end to abortion. As part of its efforts, it organizes semi-annual prayer vigils outside of hospitals that provide abortions. Brooke Dietrich is a person with a history of engagement in social justice issues, who strongly believes in protecting access to abortion.
[3] In October of 2021, when 40 Days was organizing its fall prayer vigil, Ms. Dietrich posted a series of fourteen videos on TikTok that are the focus of this litigation. In four of the videos, she encouraged people to sign up for 40 Days’ vigils and to then not show up. In several other videos, she made negative comments about 40 Days and its activities, including by stating that 40 Days lied, spread “false health information”, and engaged in “fearmongering” and harassment. In two additional videos, Ms. Dietrich posted contact information for two of 40 Days’ employees. In another video, she encouraged people to abandon virtual shopping carts with merchandise on 40 Days’ website.
[4] 40 Days alleges that its website and prayer vigils were subsequently disrupted by false sign-ups and that its volunteers and employees were harassed through online communications and phone calls. It says its ability to schedule its volunteers was disrupted and it had to dedicate time and money to restore the functionality of its online scheduling system. 40 Days obtained an injunction against Ms. Dietrich and other unnamed defendants and brought proceedings seeking damages for defamation, internet harassment, fraud, breach of contract, inducing breach of contract, and civil conspiracy.
[5] Ms. Dietrich then brought a motion to have the proceeding dismissed under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). The motion judge dismissed the motion and concluded that there were grounds to believe that the proceeding had substantial merit, that the appellant had no valid defence, and that the public interest in permitting the proceeding to continue outweighed the public interest in protecting Ms. Dietrich’s expression.
....
VI. The reasons below
[21] The motion judge denied Ms. Dietrich’s s. 137.1 motion, finding that the underlying action related to a matter of public interest, that some of 40 Days’ claims had substantial merit and no valid defence, and that the harm suffered by 40 Days from Ms. Dietrich’s expression was sufficiently serious that the public interest in permitting the proceeding to continue outweighed the public interest in protecting that expression.
....
VIII. Analysis
[38] Section 137.1 is intended to provide a remedy against a particular form of abuse of process: “the practice of initiating lawsuits not to vindicate bona fide claims, but rather to deter a party from expressing a position on a matter of public interest or otherwise participating in public affairs”: Volpe v. Wong-Tam, 2023 ONCA 680, 487 D.L.R. (4th) 158, at para. 2, leave to appeal refused, [2023] S.C.C.A. No. 516. It is intended to weed out strategic or abusive claims at an early stage.
[39] Accordingly, the burdens s. 137.1 imposes on plaintiffs are unlike those that plaintiffs are required to satisfy in the trial of an action. As this court explained in Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at the merits-based hurdle “the plaintiff need establish only grounds to believe – ‘a basis in the record and the law’ – for finding that the proceeding has substantial merit or that the defendant has no valid defence to the underlying proceeding”: at para. 30. Similarly, at the public interest hurdle “the plaintiff need not prove harm or causation; the court is tasked at this stage with drawing inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link”: Mondal, at para. 30, citing 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at paras. 70-71.
....
[41] The motion judge’s determination that the s. 137.1 motion should be dismissed is entitled to deference on appeal, absent an error of law or a palpable and overriding error of mixed fact and law: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 77.
....
(iii) Overall weighing – what is really going on?
[92] It is important to remember that the purpose of s. 137.1 is to weed out strategic and abusive proceedings that have been initiated to silence defendants, preventing them from speaking out on matters of public interest. It aims to encourage and maintain a strong public culture of free expression. The foregoing steps in the analysis are intended to put the motion judge in a position to understand and evaluate the expression involved in the action, and determine whether the plaintiff, who has likely suffered some damage as a result of the defendant’s actions, ought to be permitted to hold the defendant to account for those actions. Or, whether the plaintiff is using the litigation not for a bona fide purpose of vindicating any actual loss but in order to silence the defendant for a collateral purpose.
[93] What is required in the final weighing, as this court pointed out in Mondal, at paras. 68-70, is not a literal weighing of harms. Weighing and balancing are metaphors for a structured evaluation of competing interests. The “weighing” is a matter of reasoning towards a conclusion about whether the litigation is being genuinely pursued to remedy a legal wrong.
[94] The motion judge found that 40 Days had met its onus of establishing grounds to believe it had suffered harm as a result of Ms. Dietrich’s actions. She found reasons to believe that at least some of Ms. Dietrich’s expressions, particularly those that were invitations to others to harass and obstruct 40 Days, were malicious and of low value. She found that 40 Days had suffered damages as a result of these expressions and that these damages were sufficiently serious to outweigh the low value of Ms. Dietrich’s impugned expressions. She did not accept that 40 Days was pursuing the litigation for abusive reasons. Accordingly, she concluded that the motion should be dismissed.
[95] We are not persuaded that the motion judge made any reviewable error in this analysis. At root, the expressions did not involve an effort to counter speech with speech. Instead, Ms. Dietrich is alleged to have led a campaign to prevent 40 Days from organizing and expressing its views. This is not the type of expression s. 137.1 of the CJA is meant to protect. These issues should go to trial on a full record, after which the court below will decide whether 40 Days has made out its claims against Ms. Dietrich.
[96] In addition, although there is a clear disparity in resources between the parties – and in some contexts that may be an indicium of an abusive proceeding – this does not lead inevitably to the conclusion that a proceeding is abusive or strategic litigation designed to interfere with freedom of expression. It is only one factor to consider in the weighing mandated by s. 137.1.
|
