How far-reaching are anti-SLAPP rules? SCC rulings shed new light

September 16, 2020

The Supreme Court of Canada (SCC) has interpreted new anti-SLAPP legislation aimed at discouraging lawsuits that seek to intimidate defendants by confiscating their right to free speech. Strategic Lawsuits Against Public Participation or SLAPPs, are lawsuits that aim to silence individuals or organizations from speaking about matters of public interest.

The Globe and Mail wrote an article summarizing two matters concerning Ontario’s anti-SLAPP legislation that appeared before Canada’s highest court. In both cases, the judges had to consider whether each lawsuit was brought against the defendant as a means of intimidation or if the plaintiff had a genuine case.

In a unanimous decision for Ontario Ltd. v. Pointes Protection Association—where a developer sought to sue a resident group for breach of contract—the court found that public interest in the resident group’s environmental damage claim far outweighed any harm that the developer would endure. 

READ: What’s a SLAPP? The Supreme Court of Canada weighs in on anti-SLAPP legislation for the first time

Speaking on the outcome for Ontario Ltd. v. Pointes Protection Association, litigation partner Andrew Bernstein told The Globe and Mail that the SCC has broadened the scope beyond defamation for which anti-SLAPP laws can apply.

In the Globe article's commentary on the scope of anti-SLAPP, Andrew was reported to remark that “it may be possible for sexual-assault or harassment victims, or others who settle with their abusers and sign non-disclosure agreements, to speak up about what happened them and try to shut down any subsequent lawsuits over a breach of confidentiality, as being contrary to the public interest.”

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.

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