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Torts - SLAPP - Public Interest Threshold (5). Sheridan Retail Inc. v. Roy [causal relationship between the cause of action and expression]
In Sheridan Retail Inc. v. Roy (Ont CA, 2026) the Ontario Court of Appeal dismisses a plaintiff's appeal (though allowing the costs appeal), here brought against a successful defendant's CJA s.137.1(3) SLAPP dismissal motion regarding an action that was first advanced in defamation and some economic torts - but then re-focussed to center on a trespass that the defendant engaged in to gather photo evidence of their allegations.
Here the court examines how directly impugned actions (here a trespass) need to relate to expression for the purpose of showing the CJA s.137.1(3) 'public interest' expression:[53] .... As I will explain now, in determining whether the proceeding as a whole arose from expression relating to a matter of public interest, the motion judge fully and correctly considered whether the trespass claim did so as well.
[54] Whether a proceeding “arises from” expression within the meaning of s. 137.1(3) does not turn on either the nature of the acts that support the alleged cause of action, or the kinds of damage those acts may generate. It turns on whether “the expression is somehow causally related to the proceeding”: Pointes, at para. 24. Therefore, a cause of action “does not have to be directly concerned with expression, such as [in the case of] defamation suits” to arise from expression: Pointes, at para. 24 (emphasis in original). As SRI appears to accept, a proceeding that is “precipitated” by a statement arises from expression and thereby satisfies the first threshold requirement in s. 137.1(3): Buttar, at para. 41; Galati v. Toews, 2025 ONCA 568, at paras. 47-48; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25, at para. 41, leave to appeal refused, [2021] S.C.C.A. No. 92.
[55] Although this court was speaking in the context of the “Merits Based Hurdle” in 40 Days for Life v. Dietrich, 2024 ONCA 599, at para. 45, leave to appeal refused, [2024] S.C.C.A. No. 396, its comment pertains generally to s. 137.1 motions, and speaks to the need to consider the proceeding as a whole when considering s. 137.1(3):[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 …. 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. [Citations omitted.] [56] The motion judge characterized the proceeding as a whole and she found that at its core, “[i]t was always focused on [Mr. Roy’s] public expression and not on trespass into the mall.” She concluded that, “But for [Mr. Roy’s] public expression (i.e., his complaints to the city) … the developer would not have brought a claim for trespass.” This finding was available to the motion judge on the record, and I would defer to her decision. She had strong reason to reject SRI’s submission that Mr. Roy’s alleged trespasses were the crux of the claim.
[57] First, although the Trespass Notice warned Mr. Roy that the police would be called should he enter SRI property again, as the motion judge noted, the civil action and damages that the Trespass Notice threatened were not for trespass but for making further public statements at consultation meetings and complaints to the City. This is strong evidence that Mr. Roy’s communications were the driving force behind the proceeding.
[58] Second, the Statement of Claim that was subsequently filed included the trespass claim and described the alleged acts of trespass in some detail, but it prominently featured Mr. Roy’s communications. Its focus on Mr. Roy’s communications reinforces the importance of those communications to the overall action.
[59] Third, SRI sought to show that Mr. Roy was not on mall property for a permissible purpose by particularizing how his acts of alleged trespass were linked to complaints that Mr. Roy ultimately made to the City. This submission provides ample support for the motion judge’s finding that “[t]he developer concedes that [Mr. Roy] ‘trespassed’ for the primary purpose of collecting information to substantiate his safety concerns and complaints to the city”. It also both explains and validates her conclusion that the trespass claim was inextricably linked to the defamation claim.
[60] Fourth, the motion judge was entitled to find that the damage claims before her were linked to Mr. Roy’s communications. She found that SRI had not presented evidence that the risks it claimed to arise from the alleged trespasses materialized or resulted in increased costs, and that it “could not point to any harms that were independent of the speech.” Yet SRI claimed $300,000 in damages, leading the motion judge to find that this extravagant claim was intended to intimidate Mr. Roy into silence.
[61] Fifth, during submissions SRI’s motion counsel conceded that, “One motivation [for the claim] is, and you know Mr. Hopps testified to this, he wants to stop the complaints.” This is an admission that the complaints were the goal of the proceeding, which, in context, the motion judge was entitled to conclude to be the core or “crux” of the claim.
[62] It was therefore open to the motion judge to find that the expression was causally related to the proceeding. Not only did she make this finding based on the entire proceeding, but it is evident from the foregoing that even an examination of the trespass claim in isolation, which SRI sought to achieve, shows that the trespass claim was causally linked to Mr. Roy’s communications. The motion judge’s decision warrants deference.
[63] By arguing that the trespass claim was a private dispute, SRI also takes issue with the second threshold criterion, namely, Mr. Roy’s burden of showing that his expression “relates to a matter of public interest”. The submission is misplaced. The second threshold criterion is not concerned with whether, by its nature, an action vindicates private property interests but whether the expression itself “relates to a matter of public interest”. The expression that the motion judge found to be related to the proceeding was Mr. Roy’s communications about the redevelopment project. As noted above, the motion judge concluded, and SRI conceded, that Mr. Roy’s complaints and his public submissions did relate to a matter of public interest within the meaning of s. 137.1(3). The complaints focused on compliance with public regulatory requirements, and the public submissions focused on environmental and social concerns associated with a large-scale development — matters the motion judge noted were at the forefront of public discourse. Each of these issues can be fairly defined as ones about which some segment of the public would have a genuine interest in receiving information: Pointes, at para. 27.
[64] Given the motion judge’s conclusion that SRI’s trespass claim was intimately and inextricably related to this public interest expression, her conclusion that the threshold requirements in s. 137.1(3) were met was inescapable. The trespasses allegedly committed by Mr. Roy engaged interests well beyond the parties’ private rights and cannot be said to form the subject matter of a purely private dispute, as SRI asserts: Toews, at para. 52; Benchwood Builders, at para. 41.
[65] I would not give effect to this ground of appeal.
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