The Court of Appeal sent a message loud and clear in support of free expression last Thursday: “Not every foot over the defamatory foul line warrants dragging the offender through the litigation process.”1
In releasing its first decisions that interpret and apply the anti-SLAPP regime in Ontario, the court strengthened the regime in favour of protecting freedom of expression on matters of public interest.2 The “winners” are participants on matters of public interest even if that participation involves criticism or serious aspersions on a person’s character.3
The “losers” are “those who are the target of criticism [who] resort to litigation, not to vindicate any genuine wrong done to them, but to silence, intimidate, and punish those who have spoken out.”4
The result of the court’s six decisions is that even serious allegations of defamation, with technical merit, may be dismissed early if the harm caused to the plaintiff is outweighed by the public interest in promoting free expression.5
Background on the Anti-SLAPP Regime in Ontario
Lawsuits brought to silence and/or financially punish critics have historically been referred to as strategic lawsuits against public participation, known as SLAPP suits. Because alleging defamation in a lawsuit carries a relatively light burden for a plaintiff and because litigation has become increasingly complex and expensive to defend, defamation suits are an “ideal vehicle for SLAPPs.” Ontario’s answer was the Protection of Public Participation Act, 2015.
The act introduced sections 137.1 to 137.5 of the Courts of Justice Act. These sections create a regime where a defendant in a libel suit may bring an early pre-trial motion to have the entire action dismissed against. By imposing an evidentiary burden that is more onerous than a motion to strike, the legislature sought to address the very real societal harm caused by litigation “used as a weapon to silence and intimidate persons who speak out on matters of public interest.”
The anti-SLAPP regime places a new onus on a plaintiff who claims to have been harmed by expression that meets the definition of “public interest” to meet a merits-based hurdle, showing that there are reasonable grounds to believe that the claim has substantial merit and that there are no available, successful defences – and a public interest hurdle – showing that the harm caused by the defendant’s expression is “sufficiently serious” to permit the claim to proceed over protecting the defendant’s freedom of expression.6
The Court Strengthened the Anti-SLAPP Regime to Protect Freedom of Expression
The court’s six decisions strengthen the tools available to defendants in SLAPP suits in the following four ways.
1. The court clarified the broad availability of the anti-SLAPP regime.
The regime applies to all defendants in SLAPP suits and not just those of limited financial means. Publishers, broadcasters, and media companies can benefit from the protections of the regime as can basement bloggers, friendless Facebookers, and Twitter tyrants.7
The regime not only applies to defamation cases. It can apply to breach of contract cases. In two of the six decisions, the plaintiffs’ claims involved allegations that the defendants’ expression breached confidentiality terms contained in settlement agreements.8 In one of the cases, the court was particularly persuaded by the fact the language of the confidentiality clause was designed to act as a “gag” on the defendant rather than to obtain finality in litigation. Advancing a claim under a broad sweeping confidentiality agreement, regardless of whether the breach caused harm, weighed in favour of the public interest in protecting the expression and dismissing the claim.9
2. The court stressed the relatively low burden on the defendant (moving party) in an anti-SLAPP motion.
Animating this decision was the court’s acknowledgment that a plaintiff who alleges to have been wronged by a defendant’s expression on a matter of public interest needs to be prepared from the start to address the merits of his claim.10
A defendant need only demonstrate that the expression at issue in the claim related to a matter of public interest. The court does not need to conclude the expression furthers the public interest nor does it need to be accurate, well-researched or well-intentioned.11 The public interest will be broadly defined and can include expressive content that contains both public interest themes and more private criticisms where warranted.12 The only other burden on the defendant is to put any defences they intend to rely upon into “play.”13
3. The court confirmed that the balance of probabilities standard applies.
A plaintiff is expected to provide evidence to support his or her claim. An anti-SLAPP motion is not a rule 21 motion where the allegations in the statement of claim are presumed to be true.14 A plaintiff cannot rely on bald pleadings, allegations devoid of evidence, or unsubstantiated damages claims to meet the merits-based hurdle. For example, to meet the merits-based hurdle of showing that the claim has “substantial merit,” the plaintiff cannot rely on the seriousness of the allegations alone.15
4. The plaintiff’s motives in bringing the lawsuit are relevant.
While a plaintiff’s motives are not determinative, they will impact a court’s decision in determining “the heart” of the anti-SLAPP analysis, the competing components of the public interest hurdle.16 A punitive or retributory purpose will be relevant. The plaintiff’s history of threatening litigation or past conduct of attempting to silence his or her critics will also be taken into account.17
The Court Recognized the Anti-SLAPP Regime is Still a Balancing Act
The law of defamation has always involved striking a balance between the protection of reputation and the protection of free expression. The court’s decisions recognize the need for balance, while expressly acknowledging that other interests rightly deserve vindication through the legal process, such as harms to reputational, business or personal interests.18
This article was originally published in Canadian Lawyer Magazine.
1Armstrong v. Corus Entertainment Inc., 2018 ONCA 689 (Corus), para. 90.
2The Court released six decisions concurrently on Thursday after hearing the appeals together and reserving judgment in all six cases: 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (“Pointes”), Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686 (Fortress), Platnick v. Bent, 2018 ONCA 687 (“Platnick”), Veneruzzo v. Storey, 2018 ONCA 688 (Veneruzzo), Corus, and Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690 (Able).
3Pointes, paras. 36, 37; Corus, paras. 86-92; Able, paras. 22-24.
4Pointes, para. 2.
5Pointes, para. 37.
6See Pointes, paras. 3-7, 27-34 for background on the legislation and Pointes, paras. 35-101 for an overview of the mechanics of the legislative regime.
7This consideration will inform a court’s decision on whether the competing public interests balancing test described in s. 137.1(4)(b) is met: Platnick, paras. 98, 99.
8Pointes, paras. 103, 124; Fortress, para. 6.
9Fortress, paras. 47-52.
10Pointes, para. 45.
11Pointes, paras. 55, 65; Platnick, para. 38.
12Able, paras. 20, 23, 24; Pointes, paras. 54, 60.
13Pointes, para. 83.
14Able, para. 27, 28, 39; Pointes, paras. 60, 65, 81, 91. However, “a defendant who makes statements about a purely private matter cannot gain the protection of s. 137.1(3) by interspersing references to some other topic that may relate to a matter of public interest,” see Veneruzzo, para. 20.
15Pointes, paras. 79, 84, 110-112; Platnick, paras. 45, 46, 48-50, 56, 108.
16Corus, para. 83; Pointes, paras. 37, 47, 99; Platnick, paras. 96, 97.
17Platnick, para. 99.
18Pointes, paras. 29, 30, 33, 41, 48.
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