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Torts - SLAPP - Public Interest Threshold (4). 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 considered the key SLAPP concept of 'public interest', here directly again private interest:(1) The motion judge erred in finding that the Homeowners’ statements relate to a matter of public interest under s. 137.1(3)
[33] The motion judge found that the “expressions in question relate to a matter of public interest”. She cited a colleague’s statement that “[o]nline reviews serve an important function by offering the public information about consumer experiences dealing with professionals or businesses” and are matters of public interest.[16] This seems to be a consensus view of Superior Court judges,[17] but it is not the view of this court[18] whose legal rulings prevail. The motion judge made an error of law in failing to follow this court’s rulings on the interpretation of the “public interest” in s. 137.1.
[34] Online reviews of products and services are part of the pervasive social media milieux in which contemporary society operates. However, “[s]ocial media is not a defamation-free zone” nor do participants “consent to the risk of being defamed”.[19] With these words, Huscroft J.A. qualified the lower court judge’s observation that social media is often a nasty place; Morgan J. described one manifestation, Twitter, as “a rhetorically harsh speech environment whose very pervasive harshness reduces the seriousness with which it is taken”.[20]
[35] Section 137.1 encourages expression on matters of public interest, such as participation in debates on matters of public interest, which are protected by s. 137.1(3). But not every public expression “relates to a matter of public interest,” as Huscroft J.A. pointed out in Sokoloff, 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. Moreover, the court’s instruction of interpretive generosity cannot be read in isolation. The scope for legitimate interpretation of vaguely worded concepts such as “public interest” must be informed by the purpose of the legislation: to safeguard the fundamental value that is public participation in democracy. The burden is on the moving party to establish that its expression relates to a matter of public interest, albeit that this burden is not an onerous one. [36] The Supreme Court said in Grant v. Torstar Corp. that:To be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown, vol. 2, at pp. 15-137 and 15-138. The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”: Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285, at para. 63, per Koenigsberg J. Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.[21] [37] The court applied Grant’s approach to s. 137.1 in 1704604 Ontario Ltd. v. Pointes Protection Association.[22]
[38] In Pointes, Côté J. said, at para. 30:Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about. The animating purpose of s. 137.1 should not be forgotten: s. 137.1 was enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy. [39] Pointes itself concerned an individual’s testimony in administrative proceedings before a land use tribunal, which was found to be protected as “an expression on a matter of public interest”.[23]
[40] This court has considered the “public interest” as related to online reviews of goods or services on several occasions. Online reviews are not automatically matters of public interest. As Huscroft J.A. noted in Sokoloff, at para. 32:The task of the motion judge under s. 137.1(3) is to determine “what the expression is really about”, bearing in mind the purpose of s. 137.1: protecting expression relating to matters of public interest and safeguarding the fundamental value of public participation in democracy: Pointes (SCC), at para. 30. Again, only expression relating to a matter of public interest attracts the statute’s protection; “expression that simply makes reference to something of public interest” does not: Pointes (SCC), at para. 29. [41] This court noted in Grist, at para. 19, that “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.”[24] This court’s decisions that have found an expression to relate to a purely private dispute include the following: Echelon (an employee posted an online review of internal workplace conditions, pay, and benefits); Sokoloff (the president of a company stood outside a law firm with signs claiming that the firm had failed to pay his company for fees incurred by the firm’s clients); Hamilton (a client posted an “unflattering opinion” about her lawyer online); and Dent-X Canada (a client posted a review of Dent-X on Facebook that included allegations of fraud).[25] The result in these cases is that the anti-SLAPP motion was not granted and the defamation action was left to continue.
[42] There are some cases involving online reviews or activities that rise above the purely private: Canadian Union of Postal Workers (an expression that dealt with “the use of union funds to take positions on the conflict in the Middle East or to help an organization that allegedly supports attacks on Israel”); Thatcher-Craig (expressions related to municipal land use matters); Levant (expressions related to climate change); Hamer (expressions about animal welfare); and VAC Developments Limited (expressions about anti-Black racism and workplace harassment).[26] Common to each of these cases is an expression that engages some broader societal concern.
[43] Assessing this case against the spectrum of cases reflected in the preceding two paragraphs leads me to conclude that the online reviews posted by the Homeowners reflect no more than an especially bitter private dispute. Consequently, although some members of the public might find it interesting, it is not a matter of public interest under s 137.1. The expression at issue does not engage some broader societal concern, such as those described above, nor, in my view, does it fall within the types of expression that were intended to be captured by the provision. . Hamilton v. Vaughan
In Hamilton v. Vaughan (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, here from a dismissal of an 'anti-SLAPP motion' in a defamation action brought by their former legal counsel:[6] On the anti-SLAPP motion, the motion judge found that the appellant failed on the first step of the anti-SLAPP test, which required her to establish that her comments related to a matter of public interest. Relying on Veneruzzo v. Storey, 2018 ONCA 688, at para. 24, the motion judge held that whether an expression is a matter of public interest requires a contextual inquiry that examines what the impugned communication is about. The motion judge did not accept the appellant’s submission that while the comments were meant to be private, they were a matter of public interest because the comments promote access to justice by allowing legal advice to be obtained for free for self-represented litigants. Instead, she found that the comments were about a legal question relating to the appellant’s personal legal issues, which was a private dispute. Therefore, the appellant did not discharge her onus of proving that the comments related to a matter of public interest and the respondent’s action was allowed to proceed.
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[8] The appellant submits that the motion judge erred by failing to give the concept of “public interest” a broad and liberal interpretation, by misapprehending the nature of the appellant’s expressions, by misconstruing the appellant’s submissions on the motion regarding the nature of the public interest engaged in the expressions, in disregarding the respondent’s pleaded meaning of the expressions, and in making a qualitative assessment of the expression in determining whether it was on a matter of public interest. We disagree.
[9] The motion judge properly conducted a contextual inquiry that focused on what the impugned communication was about, as she was required to do pursuant to this court’s direction in Veneruzzo. It is clear that the specific communication complained of related to the appellant’s personal legal issues, which was a private dispute. There was no public aspect to that communication. . Burjoski v. Waterloo Region District School Board ['counter-speech']
In Burjoski v. Waterloo Region District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from the denial of a SLAPP motion, here where a school board defendant was sued for defamation in the context of disputes over transgendered-issued books in school libraries.
The court considered the public interest, here in the form of 'counter-speech':(c) Public interest in the appellants’ speech
[86] The motion judge did not appear to attach any value to the Board Chair’s speech expressed in public media interviews after the shutdown of the respondent’s presentation. In weighing this interest anew, this court must consider both the quality of the speech, and the motivation behind it: Hansman, at para. 79. The closer the expression is connected to the core values of s. 2(b) of the Charter — “truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing” — the greater the public interest in its protection: Hansman, at para. 79.
[87] The defendants argue that the speech in question — offered in media interviews by the Board Chair — was counter-speech as defined by the Supreme Court of Canada in Hansman. They say that the Board Chair was motivated to counter the offensive statements made by the respondent, as those comments conveyed discriminatory stereotypes about transgender persons, and it was necessary to ensure that the school system was a welcoming place for all, including those in the trans community.
[88] The concept of counter-speech was described by the Supreme Court in Hansman, at para. 82:Counter-speech motivated by the defence of a vulnerable or marginalized group in society also engages the values at the core of s. 15(1); namely, the equal worth and dignity of every individual. Targets of degrading expression belonging to a vulnerable group in society may lack the ability or authority to effectively combat the harmful speech themselves. Discourse can then take on an uneven quality, making protective counter-speech by the group or individual’s more powerful advocates all the more influential and important. [Citations omitted.] [89] The motion judge, while referring to the concept of “counter speech”, found that the Board Chair was not motivated by a desire to defend persons from a marginalized group. He proceeded on the basis that the Board Chair was trying to justify his own behaviour in shutting down the respondent’s presentation. On the motion judge’s analysis, the Board Chair’s statements were rooted more in self-interest than a desire to vindicate the rights and dignity of transgender students.
[90] This characterization of the Board Chair’s motivation was undoubtedly influenced by the motion judge’s view that it was improper to shut down the respondent’s presentation, a view that was later rejected by the Divisional Court, albeit in different litigation. Even setting that aside, however, the motion judge was not moved by the argument that the Board Chair was acting in defence of a marginalized group. As he put it, “[r]egard for the historical and present plight of the transgendered, as articulated in paragraph 85 of Hansman, does not negate section 2(b) of the Charter.”
[91] There may well have been an element of self-justification in the Board Chair’s motives for speaking, but this is not necessarily nefarious. Public officials should explain their decisions to the communities that they serve. The Board Chair was pressed to explain why he had shut down the respondent’s presentation and it was appropriate for him to explain that decision to the public. The evidence would also support a finding that the Board Chair was motivated to respond to what he perceived to be inappropriate and discriminatory remarks.
[92] There is, accordingly, some public interest attaching to the Board Chair’s remarks, both as explanatory comment and as speech aimed at countering what he perceived to be the respondent’s “transphobic” remarks. To the extent that the Board Chair’s speech was aimed at countering speech that undermined the equal worth and dignity of a marginalized group, it has some of the hallmarks of counter speech.
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[98] However, it is one thing to counter discriminatory speech; it is quite another to counter speech that was not expressed. The mischaracterization of what the respondent said is at the core of the action. The Board Chair’s remarks would have led members of the public to perceive that the respondent said something far more insidious than she did. There is a public interest in defending the rights of those who are stigmatized, but this does not license speech that derogates from truth.
[99] In Hansman, the court, while recognizing the public interest in counter-speech, stressed that this does not translate into “open season” on reputation. As the court put it, at para. 92:Although one’s engagement in counter-speech does not amount to “open season” on reputation and speakers must always choose their words carefully, on the whole, Mr. Hansman’s words were not a disproportionate or gratuitous response to Mr. Neufeld’s statements. When confronted with views a person believes to be discriminatory, individuals often use words such as “bigoted”, “intolerant”, or even sometimes “hateful”. I note that Mr. Hansman’s expression generally focused on the views that Mr. Neufeld expressed, and not who he is as a person. [Citations omitted.] [100] Here, as in Hansman, the Board Chair’s comments focused on the respondent’s views rather than who she was as a person. However, here, unlike in Hansman, the Board Chair’s words could be seen as disproportionate or gratuitous in their characterization of the respondent’s remarks. The level of protection afforded to any particular expression will vary, but the public interest will invariably diminish for statements that contain deliberate misrepresentations or gratuitous attacks on a person’s reputation: Marcellin, at para. 102; Pointes Protection, at para. 75.
[101] The responsibility to be accurate took on an enhanced importance in this case, given that the Board chose not to post the recording of the meeting. As a result, the respondent’s words were not available to those members of the public who might want to check what she said for themselves. The public had only the Board Chair’s speech to rely upon. When he gave his interview to 570 News on January 19, 2022, the Board Chair knew that the recording was not available, and this ought to have reinforced the importance of accuracy in his own rendition of the respondent’s statements. In these circumstances, the public interest in protecting the Board Chair’s expression falls at the lower to middle range of the spectrum.
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