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Torts - SLAPP - No Valid Defence (2). 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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