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Torts - SLAPP - General (3). 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.
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(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.
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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.
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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.
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[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.
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(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.
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