“Courts are set to define the scope of free expression”: Supreme Court on Ontario anti-SLAPP law

September 14, 2020

Ontario’s anti-SLAPP legislation is back in the spotlight after the Supreme Court of Canada (SCC) released two notable decisions.

Anti-SLAPP legislation aims to identify legal claims made in an attempt to silence or intimidate parties and stop them proceeding to court. Specifically, Ontario’s anti-SLAPP regime places an onus on plaintiffs who claim they have been harmed by expression that meets the definition of “public interest” to meet a merits-based hurdle (you can read more on anti-SLAPP rules here).

The Lawyers Daily wrote an article discussing the two decisions: Ontario Ltd. v. Pointes Protection Association involving a developer attempting to sue a resident group for breach of contract; and secondly, Bent v. Platnick, where a doctor sought to sue a lawyer and her law firm for defamation.

In a 9-0 decision for Ontario Ltd. v. Pointes Protection Association, the SCC found that the developer’s threat of a lawsuit—against a resident group who opposed its plan to build on wetland, claiming it would cause environmental damage—met the threshold of being a matter of public interest and as such, that the suit constituted a SLAPP (a “strategic lawsuit against public participation”).

The second case, Bent v. Platnick, involved a lawyer who had emailed the Ontario Trial Lawyers Association’s member-only distribution list, alleging that a doctor had changed and misrepresented medical reports to make her client’s injuries look less serious than they actually were. The lawyer argued that the doctor’s attempt to sue both her and her firm for defamation was a SLAPP. However, in a 5-4 decision, the SCC ruled in favour of the doctor, allowing his defamation case to proceed.

Commenting on the outcomes and effects of both cases, litigation partner Andrew Bernstein told The Lawyers Daily that anti-SLAPP legislation is in place to stop claims that don’t meet a certain threshold moving forward.

“For the public, these decisions are really about how protective anti-SLAPP legislation should be,” he said.

“There’s a sentiment that ‘plaintiffs have a right to pursue their claims’, but anti-SLAPP is really about cutting those claims off before they can go forward. This is where the courts are set to define the scope of free expression.”

Torys’ Appellate Group will provide further analysis on these anti-SLAPP cases—as well as a candid conversation on other recent decisions coming out of the courts—at their October 22 Breakfast With Appeal webinar.

REGISTER: For our October 22 Breakfast With Appeal.

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