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Torts - SLAPP - Merits Exception (2) [CJA 137.1(4)(a)]. 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 considering the 'substantial merit' exception [CJA s.137.1(4)(a)(i)]:(i) Subsection 137.1(4)(a): the merits-based hurdle
[44] The merits-based hurdle under s. 137.1(4)(a) that “there are grounds to believe” that “the proceeding has substantial merit” is not “a high bar” and one lower than the “balance of probabilities” standard applied to the analysis under s. 137.1(3): Pointes, at para. 35; Bent, at para. 87; Marcellin, at para. 10. This is because the merits-based hurdle “is a preliminary assessment of the claims advanced and the defences to them” and “intended to provide an overall assessment of the prospects of success of the action”: 40 Days for Life v. Dietrich, 2024 ONCA 599, at para. 43. As the Supreme Court instructed in Pointes, at para. 37, per Côté J.: “To be sure, s. 137.1(4)(a) is not a determinative adjudication of the merits of the underlying claim or a conclusive determination of the existence of a defence” (emphasis added). See also: Pointes, at para. 59.
[45] This lower hurdle is reflected in the requirement that the responding party must only satisfy the motion judge that “there are grounds to believe” the criteria under ss. 137.1(4)(a)(i) and (ii). Therefore, the merits-based burden on the responding party is not a high one and should not be overstated: Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at paras. 51, 58.
[46] Fulfillment of the “grounds to believe” standard only “requires a basis in the record and the law - taking into account the stage of the litigation”: Bent, at para. 87; Pointes, at para. 39. Importantly in this regard, the Supreme Court in Bent elaborated that “a basis in the record” means that “any basis in the record and the law will be sufficient” and that “[b]y definition, ‘a basis’ will exist if there is a single basis in the record and the law to support a finding of substantial merit and the absence of a valid defence”, so long as that basis is “legally tenable and reasonably capable of belief”: at para. 88 (emphasis in the original). See also: Pointes, at paras. 39-40; 40 Days for Life, at para. 43; Mondal, at paras. 51; Subway Franchise Systems of Canada, Inc., at paras. 66-68.
[47] What does the “grounds to believe” standard entail when applied to the criterion under s. 137.1(4)(a)(i) that “the proceeding has substantial merit”? I start with the Supreme Court’s definition that “substantial merit” means “a real prospect of success – in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff”: Pointes, at para. 49; Bent, at para. 90. What s. 137.1(4)(a) asks, in effect, is whether the motion judge concludes from his or her assessment of the record that “there is a basis in fact and in law – taking into account the context of the proceeding – to support a finding that the plaintiff’s claim has substantial merit” in that its prospect of success weighs more in favour of the plaintiff: Pointes, at para. 42.
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[50] Finally, while the responding party must meet all the criteria under ss. 137.1(4)(a)(i) and (ii), these criteria should not be considered in isolation; they inform each other. The inquiry under (ii) mirrors the one under (i) because “[i]n effect, ‘substantial merit’ and ‘no valid defence’ are ‘constituent parts of an overall assessment of the prospect of success of the underlying claim’”: Bent, at para. 101, citing to Pointes, at paras. 59, 60. Accordingly, the motion judge must assess the criteria together. . 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Ont CA, 2024) the Ontario Court of Appeal considers the CJA s.137.1(4)(a) 'merits exception' element of the SLAPP test:(b) The Merits-Based Hurdle – s. 137.1(4)(a)
[24] At the merits-based stage, the motion judge concluded that the defamation, internet harassment, and conspiracy claims had substantial merit, and that 40 Days had met its burden of establishing that Ms. Dietrich had no valid defence to these claims. The motion judge did, however, dismiss 40 Days’ claims based in contract and fraud. 40 Days does not appeal those findings, and they are not addressed below.
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(a) The Merits-Based Hurdle – s. 137.1(4)(a)
[43] The merits-based hurdle is a preliminary assessment of the claims advanced and the defences to them. It is intended to provide an overall assessment of the prospects of success of the action: Pointes, at para. 59. As the motion judge noted, the respondent bears the onus of establishing that there are “grounds to believe” that the proceeding has substantial merit, and that the defendant has no valid defence. This court has on several occasions cautioned against setting the bar higher at the merits-based hurdle than s. 137.1 requires, but it bears repeating: the plaintiff is not required to establish that the defendant has no valid defence, only that there are grounds to believe that there is no valid defence. The standard is less than a balance of probabilities. This burden is satisfied where there is a basis in the record and the law for concluding that the defences asserted will not succeed: Mondal, at paras. 50-51; Bent, at para. 103; and Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at paras. 66-68, leave to appeal refused, [2021] S.C.C.A. No. 87.
[44] As explained below, we are satisfied that the motion judge made no error in reaching the conclusion that 40 Days had established grounds to believe that the proceeding has substantial merit and that there are no valid defences with respect to conspiracy and defamation.
[45] It should be noted that a s. 137.1 motion is brought with respect to a proceeding as a whole against a party, and not with respect to the particular causes of action that are advanced in a proceeding: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, 485 D.L.R. (4th) 551, at para. 57, leave to appeal refused, [2023] S.C.C.A. No. 432. A s. 137.1 motion is not analogous to a motion for partial summary judgment. Either the proceeding as a whole against a party is an abuse of process or it is not. If the motion succeeds, the entire action falls. If the motion fails, the entire action proceeds and the various causes of action will fall to be assessed by the trial judge.
[46] Most often, a s. 137.1 motion is brought with respect to a free-standing defamation claim. However, in some cases, such as this one, several causes of action are combined. This case is unusual in that the expressions that form the basis of the defamation claim are not co-extensive with the expressions that ground the other claims.
[47] Therefore, in deciding whether the motion judge erred in dismissing the motion, it is not necessary to address her analysis of each cause of action in the merits-based hurdle before turning to her analysis of the public interest weighing. It is only necessary to address separate causes of action to the extent that they arise from different expressions. Thus, in this appeal, in order to bring all of the impugned statements into the analysis, it is necessary to consider the motion judge’s analysis of the defamation claim and one or other of the conspiracy claim and internet harassment claims, but not both. . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the plaintiff's SLAPP burden of lawsuit 'merits' [under CJA 137.1(4)(a)(i)]:[32] ... Turning to s. 137.1(4), I am however satisfied that the respondents have met their burden of establishing that: (a) there are grounds to believe that (i) the Action has substantial merit and (ii) the appellants have no valid defence in the Action; and (b) that the harm they are likely to suffer as a result of the expression is sufficiently serious that the public interest in permitting the Action to continue outweighs the public interest in protecting the expression.
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(i) Section 137.1(4)(a)(i) – Substantial merit
[55] I consider first whether there are grounds to believe that the Action has substantial merit. In addressing s. 137.1(4)(a)(i), the court must first determine “whether the plaintiff’s 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 Protection, at para. 59; Bent, at para. 88.
[56] The appellants acknowledge that there are grounds to believe that the respondents’ defamation claim has substantial merit. They assert however that the respondents have not met their burden under this provision because they have not adduced evidence to support the technical validity of the non-defamation torts that the respondents plead: intentional infliction of emotional harm, intrusion upon seclusion, and trespass. They raise concerns such as the absence of evidence of a “visible and provable illness” to support the claim for intentional infliction of emotional harm, and evidence to support the contention that the respondents had a reasonable expectation of privacy in their home address and any other personal information that was disclosed.
[57] I disagree. The court’s function under s. 137.1(4)(a)(i) is not to assess the potential merits of each individual cause of action pleaded in the statement of claim, but to determine whether there is reason to believe that the respondents will succeed in the proceeding. The question is whether “there is a single basis in the record and the law to support a finding of substantial merit”: Bent, at para. 88. That is, the court is concerned with the overall merits of the action as it relates to an expression in the public interest, and not the individual merits of each cause of action that is pleaded, including any that may be unrelated to the “expression” that is the focus of the anti-SLAPP motion.
[58] I am satisfied that the respondents have established that there are grounds to believe that the Action has substantial merit. The appellants admit to organizing the October 2 rally, holding placards and banners, and, in some cases, publicizing their actions in real time and otherwise on social media. The impugned statements, “wage thief”, “stolen” and “thief alert”, as they were used at the rally, are prima facie defamatory of Cargo County and Randeep Sandhu. On their plain meaning they suggest, if not actual criminal conduct by Cargo County and its owner, that the respondents are engaged in a practice of not paying their drivers for their work. There is evidence to support the three elements of a defamation claim: that defamatory statements were made, that they were made about some or all of the respondents, and that there was resulting and presumed harm. . Mondal v. Kirkconnell
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions.
In this quote the court considers the relationship between the 'merits' and the 'no valid defence' prongs of the SLAPP test, and the role of the "grounds to believe" qualifier [at CJA 137.1(4)(a)], that applies to both prongs::[44] As the Supreme Court made clear in Pointes, at paras. 46, 59, the “substantial merit” and “no valid defence” requirements are parts of an overall assessment of the prospect of success of the underlying claim. The bar cannot be set too high at the merits-based hurdle, otherwise the weighing stage will never be reached. This, the Supreme Court emphasized, “cannot possibly be what the legislature contemplated given the legislative history and intent behind s. 137.1”: at para. 63. Proportionality is the “paramount consideration” in determining whether an action should be dismissed.
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(iii) The appellant’s burden on the s. 137.1 motion
[50] As noted above, the bar cannot be set too high at the merits-based hurdle. The plaintiff is not required to establish that the defendant has no valid defence to an action. Section 137.1 requires only that the plaintiff establish that there are grounds to believe that the defendant has no valid defence. This is consistent with the early stage of proceedings in which the motion is brought.
[51] I emphasize the “grounds to believe” modifier lest the burden on the plaintiff be overstated. All that is required to satisfy s. 137.1(4)(a)(ii) is a determination that there is a basis in the record and the law for concluding that the defences asserted will not succeed: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 103; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at paras. 66-68, leave to appeal refused, [2021] S.C.C.A. No. 87. In this case, the appellant was required to establish grounds to believe that the respondents’ pleaded defence – fair comment – could not succeed. He could do so either by establishing grounds to believe that they could not establish fair comment, or grounds to believe that a fair comment defence otherwise available to them would be defeated by malice: see e.g., Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at paras. 31-34.
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[56] .... The appellant was required to establish only, on a standard less than the balance of probabilities, grounds to believe the respondents had no valid defence. In other words, “a basis in the record and the law – taking into account the stage of litigation at which a s. 137.1 motion is brought – for finding that … there is no valid defence”: Pointes, at paras. 39-40. He was not required to establish that the respondents’ fair comment defence would inevitably fail. As this court put the matter in Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 33, leave to appeal refused, [2019] S.C.C.A. No. 147:The burden on the appellant under s. 137.1(4)(a)(ii) is not to show that a given defence has no hope of success. To approach s. 137.1(4)(a)(ii) in that fashion risks turning a motion under s. 137.1 into a summary judgment motion.
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