SCC finds that breach of contract claim constitutes a SLAPP

Litigation partner Andrew Bernstein has told The Law Times that two decisions made by the Supreme Court of Canada (SCC) relating to Ontario’s anti-SLAPP legislation have provided further clarity on what issues anti-SLAPP is applicable to, and that a new framework will make it easier for lower courts to assess anti-SLAPP motions going forward.

The two rulings, released together—one for a breach of contract claim in Ontario Ltd. v. Pointes Protection Association and the other for a defamation claim in Bent v. Platnick—mark the first time that the SCC has weighed in on anti-SLAPP legislation. You can learn about the decision in the analysis from our litigators, “What’s a SLAPP? The Supreme Court of Canada weighs in on anti-SLAPP legislation for the first time”.

SLAPP lawsuits are aimed at silencing and/or financially punishing critics; provincial governments in Canada, including Ontario, have enacted legislation to combat SLAPPs by ensuring litigation is not used for the purpose of silencing defendants.

Speaking on the outcome for the breach of contract claim in Ontario Ltd. v. Pointes Protection Association, Andrew told Law Times it has positive implications for the #MeToo movement and may serve in future cases to give a voice to whistle-blowers and sexual assault or harassment claimants who have been silenced by a contractual obligation.

“It will be defamation cases this applies most frequently, but there’s going to be the unusual circumstances, from time to time, in which somebody invokes anti-SLAPP as a means of defending themselves against the breach of a confidentiality agreement,” he said.

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.