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Torts - SLAPP - No Further Steps in Proceeding [CJA 137.1(5)]

. 40 Days for Life v. Dietrich

In 40 Days for Life v. Dietrich (Div Court, 2023) the Divisional Court considered (and disagreed) that the CJA 137.5 ['no further steps (SS: or appeals) in the proceeding'] prohibition ('stayed') is operative to prevent an appeal of injunctive remedy in this case:

(b) Is the appeal stayed by operation of s. 137.1(5) of the CJA?

[38] Subsection 137.1(5) also does not stay this appeal. I agree with Ms. Dietrich’s submission that the appeal should not be considered a “further step” within the meaning of s. 137.1(5). Instead, given the purpose of the anti-SLAPP provision as a whole, it must be read as part of the same step as the ability to grant the injunctive relief itself.

[39] I start by relying on the Court of Appeal’s recognition that at least some discretion exists for the court to hear other matters after an anti-SLAPP motion has been filed, as discussed above. As I have said, in my view this includes the court’s inherent jurisdiction to order injunctive relief in some situations. Despite the strict wording of the s. 137.1(5), which states that “no further steps may be taken,” the court is required to interpret the legislation in a manner that promotes the purpose of s. 137.1: Boyer, at para. 60, citing Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at paras 7-9.

[40] Although the Court of Appeal has previously emphasized the provision’s focus on efficiency and economy, in the current case, the central goal of promoting expression on matters of public interest cannot be forgotten. Section 137.1 expressly details the regime’s purpose of promoting expression on such matters and discouraging the use of litigation to unduly limit that expression:

137.1(1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

[41] I conclude below that the injunction in this case was granted in error. Ms. Dietrich therefore has already been wrongly prevented from engaging in expressive activity for more than 19 months. Staying the appeal would further exacerbate the situation. This is the opposite of what was intended by s. 137.1(1). To prevent an appeal from an order wrongfully enjoining expressive activity could defeat the purpose of the provision.

[42] With respect to the concern that permitting appeals would undermine the regime’s emphasis on efficiency and economy, it is important to recall that leave is required to appeal an interim injunction. This would be required even if Ms Dietrich had sought to combine an appeal of the injunction with the anti-SLAPP appeal, as submitted by 40 Days. In most cases, leave to appeal will not be granted given the discretionary nature of an injunction. The appeal will only proceed in the limited cases where a panel of this court concludes that the stringent test for granting leave has been met. Therefore, there will be comparatively few situations that raise the concern about a multiplicity of proceedings. The risk of such cases is outweighed by the risk of wrongly silencing a defendant for a protracted period. Given the centrality of encouraging expression on matters of public interest to the purpose of the statutory provision, it must be the overriding concern. Therefore, the reference to “further steps” in s. 137.1(5) should not be interpreted to include an appeal from an interim injunction enjoining expressive activity.

. 40 Days for Life v. Dietrich

In 40 Days for Life v. Dietrich (Div Court, 2023) the Divisional Court considered (and allowed) an appeal against lower court injunctions granted against expressive activities related to abortion, here propagated on internet social media:

[1] The respondent, 40 Days for Life, is an international organization based in Texas that opposes abortion. It holds 40-day prayer vigils twice per year outside abortion facilities at locations around the world, including several in Ontario.

[2] In early March 2022, the motion judge granted an interim injunction and then, several days later, an interlocutory injunction, against the appellant, Ms. Dietrich, restraining online activity targeting 40 Days. In October 2021, during the 40 Days Fall campaign in Kitchener-Waterloo, Ms. Dietrich engaged in various activities that she describes as “counter advocacy through digital protests.” In late February 2022, 40 Days was concerned Ms. Dietrich would restart her digital protests, this time targeting its Spring campaign. The central issue on this appeal is whether the motion judge erred in granting an interim and then an interlocutory injunction in March 2022 to enjoin expressive activity Ms. Dietrich had discontinued over four months earlier. The appeal also addresses the question of whether a motion brought under the anti-SLAPP provisions of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (CJA) precluded the granting of the injunctive order and stayed this appeal from the injunction.

[3] For the reasons that follow, I do not consider the appeal to be stayed in the specific circumstances of this case. On the merits, I would allow the appeal. At the time 40 Days sought injunctive relief, Ms. Dietrich had not engaged in any of the impugned activity for several months and had stated she did not intend to resume her activity. Ms. Dietrich’s activities were a form of digital protest to 40 Days’ own protests against abortion. The motion judge erred in failing to take into account the principle of caution when issuing an injunction related to anticipated but not yet realized harm, particularly in the context of expressive activity. In addition, the motion judge erred in not considering the anti-SLAPP motion when assessing the merits of the injunction.

In these quotes, the court considers whether the CJA 137.5 ['no further steps in the proceeding'] prohibition is operative to prevent the injunctive remedy in this case, after a SLAPP CJA 137.1 has been initiated (note that an interim injunction had already been granted but that the interlocutory injunction hadn't been yet). It grants the appeal, though on other grounds:

Is the appeal stayed by operation of s. 137.1(5) of the CJA?

[23] Ms. Dietrich submits that the appeal is not stayed under the CJA. She submits that s. 137.1(5) of the CJA should have prevented the motion judge from hearing the injunction once she filed her anti-SLAPP motion. However, as the injunction was issued, she submits that it is open to the court to review that decision. In her submission, the appeal is not a “further step,” but rather a necessary correction to an improper decision. According to Ms. Dietrich, the injunction “cannot be appeal-proof.”

[24] 40 Days submits that the appeal is stayed. In its submission, the motion judge was permitted to rule on the injunction because s. 137.1(5) does not prevent a judge from ruling on a motion brought prior to the anti-SLAPP motion, as the injunction was in this case. With respect to the appeal, 40 Days submits a court with an anti-SLAPP motion before it can rule on another step that it can efficiently and economically address within the schedule of the anti-SLAPP motion. It submits that the current injunction is not insulated from appeal but should have been challenged together with the anti-SLAPP motion and the appeal of that motion to avoid extraneous steps.

(a) Did the motion judge have jurisdiction to issue an injunction in spite of s. 137.1(5) of the CJA?

[25] Although, as discussed below, I find that the motion judge in this case erred for other reasons by granting the injunction, I agree with his conclusion that the hearing of the injunction motion was not stayed by s. 137.1(5).

[26] The full text of s. 137.1(5) reads as follows:

137.1(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

[27] The Court of Appeal has interpreted this provision to allow a measure of discretion to motions judges, at least insofar as the exercise of that discretion promotes the goals of efficiency and economy: Boyer v. Callidus Capital Corporation, 2023 ONCA 233, at para. 62. For example, in Boyer, the Court concluded s. 137.1(5) did not preclude the motions judge from considering r. 21 and summary judgment motions that were initiated at the same time as the anti-SLAPP motions. In Zoutman v. Graham, 2020 ONCA 767, the Court of Appeal upheld the motions judge’s conclusion that he could hear a summary judgment motion that had been brought before the s.137.1 motion. Motions judges have also interpreted s. 137.1(5) as permitting steps, including motions, within the anti-SLAPP motion itself. In The Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 125, at paras. 208 to 212, for example, the motions judge permitted privilege motions to proceed as an interlocutory step to the pending anti-SLAPP motions.

[28] The motion judge was not stayed from extending the injunction in this case. In my view, the discretion available to motions judges should be interpreted to permit injunctions where the moving party is able to demonstrate harm justifying injunctive relief. Courts have an inherent equitable jurisdiction to grant injunctions, which exists unless specifically ousted by statute: Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Carswell, 2022) at 1:32. Given the existence of some discretion in the interpretation of s. 137.1(5), I would not interpret the provision as expressly ousting this equitable jurisdiction. The text of s. 137.1(5) does not expressly reference injunctive relief and to find otherwise would eliminate the court’s jurisdiction to prevent serious ongoing harm.

[29] It is useful to consider the fact scenario in Automotive Parts Manufacturers’ Association v. Jim Boak, 2022 ONSC 1001, which illustrates a situation of potential serious harm from expressive activity. There, an injunction was granted in relation to protest activity, which was to blockade the Windsor bridge. At the time the injunction was granted, the protesters had blocked all Canada bound traffic and severely limited US bound traffic. I am not aware of an anti-SLAPP motion having been brought in that case, but the fact scenario demonstrates the urgent need for injunctive relief in some cases of expressive activity.

[30] Although the anti-SLAPP regime is designed for the motion to be heard expeditiously, the reality is that the process is often protracted. In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at para. 35, the Court of Appeal endorsed comments by Myers J. that these motions have become expensive, time-consuming, and open to abuse. Myers J. observed as follows in Tamming v. Paterson, 2021 ONSC 8306, at paras. 7-9:

Despite the Legislature’s intention to create a preliminary hurdle, the process advanced in practice is more like a marathon. To that end, the mandatory 60-day time limit for resolving these motions is routinely ignored. Counsel on both sides usually need more time and, in Toronto at least, motion appointments are backlogged far more than 60 days.

[31] In this case, the anti-SLAPP motion was heard on May 31 and June 1, 2022, which is not far outside the 60 days prescribed by s. 137.2(2). The reasons for decision on the motion were released on September 30, 2022. The appeal of the motion was heard in July 2023, more than 16 months after the motion was initiated. It would be contrary to the interests of justice and the court’s equitable jurisdiction to permit ongoing serious harm to continue during what can be a protracted period for the determination of an anti-SLAPP motion and any appeal.

[32] Ms. Dietrich points to a report of the Ministry of the Attorney General prior to the enactment of the anti-SLAPP provisions, which recommended as follows:

Until the [anti-SLAPP] motion for a remedy is decided, no other step in the action may be taken except possibly an injunction in the discretion of the court where the plaintiff can establish the fact or serious threat of irreparable harm, and the established special tests for injunctions restraining communicative activity are met.

Ministry of the Attorney General, Anti-SLAPP Advisory Panel Report to the Attorney General, October 2, 2010, at para. 42.

[33] Ms. Dietrich submits that this recommendation was not included in the wording of the legislation and, therefore, was discarded. Legislative intent cannot be gleaned only by reference to a single recommendation in a report. In any event, in my view, the recommendation could equally be read to support my interpretation of s. 137.1(5), which is to recognize the potential need for the court to exercise its equitable jurisdiction and grant injunctions in certain circumstances in spite of the stay.

[34] In this case, the motion judge relied on the initial injunction motion having been filed before the anti-SLAPP motion to find he had jurisdiction to grant injunctive relief. The Court of Appeal has permitted motions to proceed in some circumstances where they were initiated before or together with the anti-SLAPP motion: Zoutman, at para. 17; Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at para. 7; Boyer, at para. 60.

[35] While the continued injunctive relief was sought after the anti-SLAPP motion was filed, in these circumstances, the request for interim relief can be viewed as part of the anti-SLAPP motion itself and therefore not stayed: The Catalyst Capital Group Inc. v. West Face Capital Inc., at para.

202. 40 Days was entitled to seek this interim relief pending the determination of the anti-SLAPP motion on the basis that interlocutory steps can be taken within the anti-SLAPP motion itself.

[36] Where a motions judge determines it appropriate to hear an injunction motion, every effort should be made to schedule the motion in a manner that is efficient and avoids duplication. In many cases this would mean scheduling the motion to continue or to be renewed at the same time as the anti-SLAPP motion.

[37] Overall, I conclude that motions judges may in appropriate circumstances grant injunctive relief in spite of the filing of an anti-SLAPP motion, particularly where the injunction is an interlocutory step pending the hearing of the anti-SLAPP motion. The motion judge did not err in this case by finding he had jurisdiction to rule on the injunction.

. Bouragba v. Ontario College of Teachers

In Bouragba v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered whether a discontinuance of action by the plaintiff in a SLAPP proceeding constituted a 'further step' under CJA 137.1(5):

The Effect of s.137.1(5) of the Courts of Justice Act

[11] Subsection 137.1(5) of the Courts of Justice Act provides as follows:

Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

[12] Mr Bouragba argues that the motion for leave to discontinue was a “further step in the proceeding”. It is precluded by s.137.1(5). The provision is an absolute prohibition, it is statutory, and the court has no discretion to dispense with it (see United Soils Management Ltd. v. Katu Mohamed, 2017 ONSC 904, per Penny J.). The Master found that the prohibition in s.137.1 applies to any step “to advance the litigation”, but that the prohibition does not apply to a motion seeking “to bring the entire proceeding to an end.” I agree with the Master’s conclusion on this point in the context of a motion for leave to discontinue the entire action, with prejudice.[1]

[13] The purpose of the anti-SLAPP provision is to require that the propriety of the action be decided before the parties take other steps that run up the costs of the litigation for the parties and for the administration of justice: Ontario, Ministry of the Attorney General, Anti-SLAPP Advisory Panel: Report to the Attorney General, Toronto, 2010, para. 42. The provision does not exist to enable a defendant to obtain a decision on the merits of the anti-SLAPP motion, but rather to eliminate improper lawsuits early, to save everyone, including the administration of justice, unnecessary time and expense. In moving first reading of the legislation that enacted the anti-SLAPP provision, Attorney General Meilleur stated to the Legislature:

Catching strategic lawsuits early also has benefits for the courts, by minimizing the amount of valuable public resources wasted on those matters. This, of course, benefits all court users. (Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 1st Sess., No 41A (December 10, 2014) at 1971)

[14] Mr Bouragba is asking this court to set aside the discontinuance, which has the effect of terminating the action in his favour, so that he may subsequently pursue a motion before a judge for an order terminating the proceedings in his favour, at significantly greater cost to the parties and the administration of justice. The impracticality of this position is apparent on its face.