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Torts - SLAPP - General (4). Sheridan Retail Inc. v. Roy
In Sheridan Retail Inc. v. Roy (Ont CA, 2026) the Ontario Court of Appeal dismisses a plaintiff's appeal (though allowing the costs appeal), here brought against a successful defendant's CJA s.137.1(3) SLAPP dismissal motion regarding an action that was first advanced in defamation and some economic torts - but then re-focussed to center on a trespass that the defendant engaged in to gather photo evidence of their allegations.
Here the court canvasses the SLAPP CJA s.137.1 regime:[1] .... A SLAPP is a lawsuit initiated “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.
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C. THE ANTI-SLAPP REgime
[15] The purposes of Ontario’s anti-SLAPP regime are stated comprehensively in s. 137.1(1). In short, the scheme “is meant to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 16. Accordingly, s. 137.1 requires a motion judge to undertake a four-step inquiry in deciding whether to grant an anti-SLAPP motion, consisting of two threshold requirements that must be met by the moving party, and if those threshold requirements are met, two requirements that must be met by the responding party if it wishes to have the action continue.
[16] Section 137.1(3) sets out the two threshold requirements that the moving party must meet. Specifically, the moving party must prove on a balance of probabilities that the proceeding: (1) “arises from an expression made by the [moving party]”, and (2) that this expression “relates to a matter of public interest”: CJA, s. 137.1(3); see also Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, at para. 25, leave to appeal granted, [2025] S.C.C.A. No. 169.
[17] The term “expression” in the first threshold criterion is defined expansively to mean “any communication” made by a person: CJA, s. 137.1(2). A “proceeding arises from an expression” within the meaning of s. 137.1(3) if it is causally related to that expression: Pointes, at para. 24.
[18] “[R]elates to a matter of public interest”, the second threshold criterion, is not defined by the statute. However, it is also interpreted broadly and liberally and will be satisfied so long as “some segment of the community would have a genuine interest in receiving information on the subject”: Pointes, at para. 27, citing Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 101-2. The inquiry is ultimately a contextual one that is “asking what the expression is really about”: Pointes, at para. 30.
[19] Despite this interpretive generosity, there are limits to the kinds of expression that engage s. 137.1(3). As this court noted in Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 19: “[I]t is not enough if expression simply makes reference to something that is of public interest, or to something that arouses the public’s curiosity.” As Pointes, at para. 30, makes clear, the expression itself must “really be about” a matter of public interest. Similarly, “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”: Grist v. TruGrp Inc., 2021 ONCA 309, 156 O.R. (3d) 171, at para. 19.
[20] If a moving party has satisfied the two threshold requirements identified in s. 137.1(3), the onus shifts to the responding party — the party that brought the action — to resist the motion by satisfying the cumulative elements in s. 137.1(4): Pointes, at para. 33. Section 137.1(4), provides:(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. [21] The hurdle imposed by s. 137.1(4)(a), generally referred to as the “Merits-Based Hurdle”, imposes a “grounds to believe” burden that requires the responding party to satisfy the motion judge subjectively, as a matter of their discretion, that in their assessment of the limited evidentiary record that would be available at this stage, there is a basis “for finding that the underlying proceeding has substantial merit and that there is no valid defence”: Pointes, at paras. 36-37, 39, and 41-42. As Côté J. explained in Pointes, at para. 59, the “‘substantial merit’ and ‘no valid defence’ [inquiries] should be seen as constituent parts of an overall assessment of the prospect of success of the underlying claim.”
[22] A proceeding will have “substantial merit” if “its underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success”: Pointes, at para. 54. I will elaborate more on how substantial merit is to be assessed below.
[23] To satisfy the “no valid defence” component, the responding party must show that “the defence, or defences, put in play are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success”: Pointes, at para. 59.
[24] The hurdle imposed by s. 137.1(4)(b), generally called the “Public Interest Hurdle”, requires the responding party to provide evidence establishing “on a balance of probabilities that it likely has suffered or will suffer harm, that such harm is a result of [the moving party’s expression], and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation”: Hansman v. Neufeld, 2023 SCC 14, [2023] 1 S.C.R. 519, at para. 67; Pointes, at para. 82 (emphasis in original).
[25] In Yates v. Iron Horse Corporation, 2026 ONCA 38, at para. 56, this court elaborated on the evidence of harm that is required, commenting that “the harm or likely harm must be of a sufficient magnitude to outweigh the public interest in protecting the appellant’s expression”, and noting that “presumed general damages are insufficient” and “bare assertions of harm are also insufficient”.
[26] Côté J. described this weighing exercise as the “crux” of the inquiry: Pointes, at para. 82. Since “the focus at this stage is ‘what is really going on’ in the case [when engaged in the weighing exercise]… 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”, including the proximity of the expression to “any of the fundamental values of s. 2(b) of the Charter”: Benchwood Builders, at paras. 63-64.
[27] Section 137.1(6), which is also relevant to this appeal, provides in relevant part:(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,
(a) in order to prevent or avoid an order under this section dismissing the proceeding … [28] If the moving party succeeds in obtaining a dismissal of the proceeding using the anti-SLAPP regime, s. 137.1(7) provides that they are entitled to their costs on a full indemnity basis, “unless the judge determines that such an award is not appropriate in the circumstances.” In addition, a successful moving party may be awarded “such damages as the judge considers appropriate” if the motion judge finds that the responding party “brought the proceeding in bad faith or for an improper purpose”: CJA, s. 137.1(9).
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