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Torts - SLAPP - No Valid Defence (2). Li v. Barber
In Li v. Barber (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal from an interlocutory pre-certification order that dismissed the defendant's CJA 137.1 SLAPP motion, here where plaintiff Ottawa neighbours sued for private and public nuisance for trucker's protest activities.
Here the court considers the 'no valid defence' element of the SLAPP test, and the lower court's manner of explanation of law to the parties:[89] One condition a plaintiff must meet to avoid the dismissal of its proceeding that arises from public interest expression made by a defendant is to satisfy the motion judge that “there are grounds to believe that ... the [defendant] has no valid defence in the proceeding”: s. 137.1(4)(a)(ii).
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First error: Application of the wrong legal test
[92] Of all the awkward language employed in s. 137.1, the phrase “no valid defence” in s. 137.1(4)(a)(ii) ranks as the most awkward of all. That said, in Pointes Protection at para. 60 the Supreme Court set out the governing interpretation of that sub-section:In summary, s. 137.1(4)(a)(ii) operates, in effect, as a burden-shifting provision in itself: the moving party (i.e. defendant) must put potential defences in play, and the responding party (i.e. plaintiff) must show that none of those defences are valid in order to meet its burden. Mirroring the “substantial merit” prong, under which the plaintiff must show that there are grounds to believe that its claim has a real prospect of success, the “no valid defence” prong requires the plaintiff, who bears the statutory burden, to show that there are grounds to believe that the defences have no real prospect of success. This makes sense, since s. 137.1(4)(a) as a whole is fundamentally concerned with the strength of the underlying proceeding. [Emphasis added.] ....
[95] While attempting to make judicial reasons more accessible to the lay reader is a laudable goal, when it comes to describing the elements of the s. 137.1 test I think the best principle for any motion judge to follow is quite simple: just use the language of the Supreme Court’s decisions. Paraphrasing risks complicating an already too awkward statutory provision.
[96] The question then becomes whether, in paraphrasing the Supreme Court’s interpretation of the “no valid defence” element of s. 137.1, the motion judge altered and applied a different test, or whether his paraphrases were functional equivalents that lacked any substantive analytical difference? Reading the reasons of the motion judge as a whole, I think the latter is the case. While employing the language used by the Supreme Court in Pointes Protection would have been the better course of action, I am not persuaded that the motion judge’s language resulted in him applying a substantively different test. . Benchwood Builders, Inc. v. Prescott
In Benchwood Builders, Inc. v. Prescott (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this from a defendant-successful SLAPP CJA s.137.1 motion.
Here the court considers the 'no valid defence' of the SLAPP motion test [CJA 137(4)(a)(ii)]:[28] As I will explain, in my view s.137.1 (4)(a)(ii) – “no valid defence” – has been given too much weight in the operation of the section. It is better seen as no more than an obvious off-ramp for those cases in which there are clearly grounds to believe that a valid defence to the entire defamation action exists; in such cases, the defamed party has failed to meet the onus under s. 137.1 and the underlying defamation proceeding should be dismissed.[14] Such open and shut cases will be rare.
[29] But what happens when the judge is only satisfied that the defamer might have a valid defence? Some cases have placed too high a burden on the defamed plaintiff. In my view, it is an error to conclude that because the responding party – the defamed party in the underlying proceeding – is not able to utterly invalidate the defence, the motion to dismiss must be granted.[15]
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(2) The motion judge erred in her approach to the ground of “no valid defence” under s. 137.1(4)(a)(ii)
[44] Section 137.1(4)(a)(ii) has proved to be the most problematic of the section’s provisions. I begin with the text, which provides:(4) A judge shall not dismiss [Benchwood’s defamation] proceeding under subsection (3) if the responding party [Benchwood] satisfies the judge that,
(a) there are grounds to believe that,
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(ii) the moving party [the Homeowners] ha[ve] no valid defence in the [defamation] proceeding; and [Emphasis added.] [45] Does s.137.1(4)(a)(ii) provide an off-ramp allowing a judge to grant the anti‑SLAPP motion without proceeding to the weighing exercise required by s. 137.1(4)(b)?
[46] Consider two scenarios: 1) The responding party to the anti-SLAPP motion, here Benchwood, shows that the moving party, the Homeowners, have no valid defence to the defamation action; or 2) Benchwood is able to establish only that the Homeowners might not have a valid defence to the defamation action.
[47] Textually, the emphasized word “and” at the end of s. 137.1 (4)(a) requires the judge to advert to s. 137.1(4)(b) regardless of the scenario. The second scenario, in which the defamer might have a defence, has proven troublesome. Some judges have treated the second scenario as though a valid defence exists: If the defamed party cannot show that it has an open and shut case against the defamer – that is, cannot show that “the moving party has no valid defence” – then the defamation action must be dismissed as an anti-SLAPP action and the purported defamer escapes.[27] This was the mistaken approach the motion judge took in this case.
[48] It was mistaken for four reasons: First, it effectively reads s. 137.1 (4)(b) out of the section by entirely ignoring the pregnant “and” at the end of s. 137.1 (4)(a).
[49] Second, in so doing, the mistaken approach ignores the decisions that hold the weighing exercise in s. 137.1(4)(b) is to be the “fundamental crux” of the court’s analysis.[28]
[50] Third, the dynamic of the weighing exercise in s. 137.1(4)(b) more carefully assesses the competing interests of free speech on the one hand, and defamation law’s reputational protection on the other hand, in the fact specific context of a case.
[51] Fourth, I am of the view that the Supreme Court’s decision in Bent calls for a more nuanced approach to s. 137.1(4)(a)(ii). In the case of a defamation action, the responding party need only show grounds to believe that the defences do not tend to weigh more in the moving party’s favour.[29]
[52] My interpretation of s.137.1(4)(a)(ii) in the context of the whole section and particularly the weighing exercise required by s. 137.1(4)(b) might seem to be inconsistent with some of Côté J.’s words in Pointes, at para. 58:The word no [in (ii)] is absolute, and the corollary is that if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed. [53] I would distinguish Pointes. In my view, these words cannot be applied easily in the context of a defamation claim, as applicable as they might have been to Pointes itself, which was a contract dispute. I say this for several reasons. First, the intricate nature of a defamation action and the plethora of possible defences makes such a categorical approach to s. 137.1(4)(a)(ii) both problematic and unjust. It is difficult to analyze a statement or set of statements in such a categorical fashion. In this case, for example, there were several allegedly defamatory statements. The defence of justification or truth might be available for some, none, or perhaps all, of the statements. The categorical approach does not comprehend such a mixed set of possible outcomes. Quite the opposite, since the literal application of Côté J.’s words is that any valid defence to any of the allegedly defamatory statements would lead to a dismissal of the entire defamation action.
[54] Second, a defamatory statement might be true at some level, but the problem is less the truth of the statement than what has sometimes been referred to as the “sting” of the words, evident in the presence of malice.
[55] Third, the categorical approach raises the stakes in an anti-SLAPP motion and encourages the development of an enormous record exploring every possible defence at length. Such a comprehensive approach is completely inconsistent with the intended summary nature of anti-SLAPP motions. Indeed, Côté J.’s statement quoted immediately above, was followed by these lines:As with the substantial merit prong, the motion judge here must make a determination of validity on a limited record at an early stage in the litigation process – accordingly, this context should be taken into account in assessing whether a defence is valid. The motion judge must therefore be able to engage in a limited assessment of the evidence in determining the validity of the defence. [56] I see these instructions as inconsistent with the categorical approach posited in the first statement with respect to defamation actions.
[57] Further, this court has observed that anti-SLAPP motions have “been misused as a costly and time-consuming surrogate for a summary judgment motion” in defamation actions.[30] They are not to be “a new form of summary trial on the merits of a defamation action”.[31] Brown J.A. recently commented that anti-SLAPP motions “are not designed or appropriate” for cases in which “any determination on the merits will patently require a deep dive into the evidence and the making of extensive findings of credibility.”[32]
[58] I am therefore confident that Côté J. understood the need for a more nuanced analysis and did not intend for such a categorical approach to apply in defamation actions.
[59] I conclude that the preferable approach to take to anti-SLAPP motions in defamation actions, where it is not immediately clear that there is no valid defence, is to move smartly to the weighing exercise in s. 137.1(4)(b). After all, it is intended to be the “fundamental crux” of the court’s analysis. . 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 considers the 'no valid defence' exception [CJA s.137.1(4)(a)(ii)]:[48] I turn next to the requirements of s. 137.1(4)(a)(ii). Section 137.1(4)(a)(ii) “operates as a de facto burden-shifting provision” whereby the moving party defendant “must first put in play the defences it intends to present, and then the burden effectively shifts to the plaintiff, who bears the statutory burden” of showing there are grounds to believe that the defences have no real prospect of success: Pointes, at paras. 56, 60; Bent, at paras. 101, 103.
[49] The responding party plaintiff is not required to show that the defences will inevitably fail, as “[t]o approach s. 137.1(4)(a)(ii) in that fashion risks turning a motion under s. 137.1 into a summary judgment motion”: 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. Similar to the burden under s. 137.1(4)(a)(i), the limited burden on the responding party under s. 137.1(4)(a)(ii) is to show that there exists any basis in the record or law, having regard to the stage of the proceeding, to support a finding that the defences do not tend to weigh more in favour of the moving party defendant: Bent, at para. 103. 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: Subway Franchise Systems of Canada, Inc., at paras. 56, 57; Bondfield Construction Company Ltd. v. The Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291, at para. 15.
[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.
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[63] The correct analysis under s. 137.1(4)(a)(ii) required the motion judge to assess whether there were grounds to believe that the respondents had no valid defences to the appellants’ action. Accordingly, the motion judge was required to assess whether the appellants had shown there was a basis in the record and the law to support a finding that the defences put in play by the respondents do not tend to weigh more in their favour: Bent, at para. 103. . Marcellin v. London (Police Services Board)
In Marcellin v. London (Police Services Board) (Ont CA, 2024) the Ontario Court of Appeal allowed a SLAPP appeal, here focussing on if there were 'valid defences' to a s.137.1(3) motion dismissal [under CJA s.137.1(4)(a)(ii)]:(i) The Question of Valid Defences
[59] Pursuant to s. 137.1(4)(a), it is the responding party’s onus to establish that there are grounds to believe that (i) the proceeding has substantial merit, and (ii) the moving parties have no valid defence to the proceeding. “Grounds to believe” means something more than mere suspicion, but less than proof on a balance of probabilities: Hansman, at para. 94, citing Pointes Protection, at para. 40. Any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and reasonably capable of belief”: Bent, at para. 88.
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[62] The other defence that was “in play” with respect to the impugned expressions was qualified privilege. As I will explain, while the motion judge correctly applied the relevant principles in determining that there were grounds to believe that the defence of qualified privilege would not apply in respect of the expressions at the April 26 meeting, his consideration of the defence of qualified privilege in relation to Dr. Young’s police complaint was incomplete and he applied an incorrect legal standard in concluding that Mr. Marcellin had not met his burden in respect of the defence of qualified privilege in relation to the letters. I will also briefly address Ms. Walker’s “Cosby tweet” in respect of which the motion judge found malice. In my view, on the record available at this early stage in the proceedings, Mr. Marcellin has met his burden under s. 137.1(4)(a)(ii) with respect to all of the impugned expressions.
(a) Qualified Privilege
[63] I will begin by setting out a summary of the relevant legal principles respecting qualified privilege as discussed in Bent, at paras. 121-28, and in Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 143-47:. The threshold for qualified privilege is high. The privilege is grounded not in free expression values, but in the social utility of protecting particular communication occasions from civil liability;
. The focus is on the circumstances in which the communication was made. A precise characterization of the occasion is essential;
. The privilege is “qualified” because it can be lost if the communication exceeds the legitimate purposes of the privilege or where the dominant motive for publishing the defamatory expression is actual or express malice. The focus is on the “content of the communication, and on the conduct and motives of the speaker”;
. A defendant cannot rely on qualified privilege if the information communicated is “not reasonably appropriate to the legitimate purposes of the occasion”. A statement cannot be “reasonably appropriate” unless it is “relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege”; and
. Malice includes spite or ill-will, as well as any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest the privileged occasion created, and is also established by showing the defendant spoke dishonestly or in knowing or reckless disregard for the truth. ....
[67] With respect, the motion judge’s analysis of the defence of qualified privilege in respect of the police complaint was incomplete. He did not go on to consider, as he had in respect of the April 26 meeting, whether there were grounds to believe that the privilege had been exceeded and that the defence would be defeated by malice.
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[71] Again, the burden under s. 137.1(4)(a)(ii) is not high. Mr. Marcellin’s onus was not to establish conclusively that Dr. Young had an improper motive and acted with malice. It was to show that there were grounds to believe that any defence to the impugned expressions, including the making of the police complaint, would not succeed. The motion judge erred by not considering evidence of Dr. Young’s motive and malice in making the complaint. On the record in this case I am satisfied that there are grounds to believe that the defence of qualified privilege will not succeed in relation to this impugned expression.
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[77] In my view the repeated references to the sufficiency of the evidence suggests that the motion judge applied a standard that exceeded the “grounds to believe” standard under s. 137.1(4)(a)(ii). As noted earlier, “grounds to believe” means something more than mere suspicion, but less than proof on the balance of probabilities: Pointes Protection, at para. 40. Having regard to the stage of the proceedings when an anti-SLAPP motion is brought, any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and reasonably capable of belief”: Bent, at para. 88.
[78] The central question with respect to malice was whether there were grounds to believe that, in sending the letters, Dr. Young was acting out of spite or ill-will, or had any “indirect motive or ulterior purpose” that conflicted with the sense of duty or mutual interest the privileged occasion created. In my view, in considering the question of malice, the motion judge failed to give proper consideration to the content of the letters (apart from Dr. Young’s stated purpose), their timing, and the context in which they were sent.
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[81] There was plainly a basis in the record and the law to support a finding that the letters were motivated by malice sufficient to defeat the defence of qualified privilege. I find that Mr. Marcellin has met his burden to show that there are grounds to believe this defence will not succeed with respect to the letters to community leaders that were sent out by Dr. Young.
[82] Finally, the motion judge did not complete his analysis of the defences raised in respect of Ms. Walker’s tweets. After concluding that the defence of qualified privilege would not apply to the tweets, which were made to the public at large, he stated only that the tweet that advised of Mr. Marcellin’s charges was not actionable as defamation because it was true, and that, in relation to Ms. Walker’s tweet about Mr. Marcellin that followed her “Cosby tweet”, it was not necessary to determine on the motion whether the two tweets were merely coincidental or deliberately coordinated, but that in any event there was some basis in the evidence to determine that Ms. Walker acted with malice.
[83] In my view, Mr. Marcellin met his onus under s. 137.1(4)(a)(ii) in respect of Ms. Walker’s tweet. There are grounds to believe that the two tweets were deliberately coordinated, and that Ms. Walker was communicating that Mr. Marcellin was, like Bill Cosby, supported as a “great guy” but had abused women. No arguable defence was raised, and, as the motion judge observed, there was a basis to conclude that Ms. Walker was animated by malice.
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