New Anti-SLAPP measures have far reaching consequences
By Jeff G. Saikaley and Geneviève Lévesque
The Ontario government has passed a law (the Protection of Public Participation Act, 2015), which amends certain provisions of the Courts of Justice Act allowing defendants the right to bring a motion early on in the litigation to test the merits of a defamation action. The purpose: to determine if the action is what is known as a SLAPP suit (a Strategic Lawsuit Against Public Participation). If the action is deemed by a judge to be a SLAPP suit, the action is dismissed and the plaintiff may be ordered to pay all of the defendant’s costs. If a judge determines that the case is not a SLAPP suit, the action goes on.
There is very little empirical evidence that the Act is solving an existing problem. I am not aware of any studies establishing how many SLAPP suits are actually brought each year and what impact they are having, if any, on curbing the public’s participation in matters of public interest.
Notwithstanding, the purpose of the Act is laudable: to encourage expression on matters of public interest and to discourage the use of litigation as a strategic tool to unduly limit such expression.
What is most troubling about this new law, however, is that there is no definition of what constitutes a SLAPP suit. As a result, defendants in most defamation actions will take a run at the case by bringing such a motion and the cards are heavily stacked against the plaintiff.
The following are the highlights of the new merits review process as set out in sections 137.1-137.5 of the Courts of Justice Act:
- The defendant’s motion must be heard within 60 days of it being filed. In most cases, an early procedural motion can take 3-4 months to be scheduled. The province has deemed these motions so urgent that they must be heard more quickly, rather than in the ordinary course like all other motions, which is unusual to say the least.
- The action shall be dismissed if the moving party satisfies the judge that the proceeding arises from an expression that relates to a matter of public interest. Although “expression” is defined, what is in the public interest is not defined and the door is wide open to argue that any matter that a defendant spoke/wrote about was in the public interest. The best definition of public interest is likely the following from the Supreme Court of Canada’s decision in Grant v. Torstar:
[par. 102] How is “public interest” in the subject matter established? First, and most fundamentally, the public interest is not synonymous with what interests the public. The public’s appetite for information on a given subject — say, the private lives of well-known people — is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual’s reasonable expectation of privacy must be respected in this determination. Conversely, the fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest. It is enough that some segment of the community would have a genuine interest in receiving information on the subject.
- To resist the dismissal of the action, the plaintiff has to satisfy the judge that there are grounds to believe that the action as “substantial merit” and that the defendant has “no valid defence”. The plaintiff must also show that the harm likely to be or have been suffered by the plaintiff as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. This, in my view, is the most troubling of all for reasons that I will explain below.
- If the judge dismisses the action, the defendant can be awarded full costs and damages, if the judge finds that the action was brought in bad faith. These are quite remarkable developments as it is rare for a defendant to be awarded 100% of their legal costs of a case even if entirely successful, and it is unheard of to be awarded damages on top of that for having the claim dismissed. Whereas if the plaintiff is successful, no costs are awarded unless it’s deemed appropriate in the circumstances.
The onus on a plaintiff to avoid the early dismissal of his/her defamation action is incredibly high. The motion is heard very quickly – within 60 days. From a practical perspective, the plaintiff who just served a Statement of Claim and is now served with a motion to dismiss has to martial evidence quickly to show that the action has “substantial merit”. In most cases, all that the plaintiff knows is that a statement was made (in writing or orally) and that it is defamatory. The circumstances of the publication, the sources of the information and other relevant factors are not usually within the plaintiff’s knowledge at this stage.
In addition, it is not clear what “substantial merit” means or how this can be proven at an early stage. The wording suggests that this is more than a preliminary or cursory review of the merits. This is clearly more than showing a “prima facie” case against the defendant. It appears that this motion will be treated like a summary judgment motion for a plaintiff and s/he will have to put their best foot forward (lead trump or risk losing) on a merits review to avoid a dismissal of the action. This is a very high bar, particularly in a defamation case where competing interests of free speech and protection of reputation are competing values at best of times.
The same plaintiff will have to convince the judge that the defendant has “no valid defence”. I have practised in this area enough to appreciate that both sides to a defamation case have enough tools available to them at common law (and in the Libel and Slander Act) to muster valid arguments and positions in their pleadings. There are a multitude of defences that can be raised, including but not limited to justification (truth), fair comment, qualified privilege and the responsible communication defence. In most situations, a defendant can rely on one or more of these defences to put up a good fight, even in the most egregious of libels. For a plaintiff to prove, within 60 days of suing the defendant, that there are “no valid defences” is extremely difficult.
To date, the wording of this new merits review process enacted specifically for defamation actions has been interpreted by two decisions, which do not deal with defamation. In the first, 1704604 Ontario Ltd. V. Pointes Protection Association et al., 2016 ONSC 2884, Justice E. Gareau interpreted the wording narrowly to avoid dismissing a valid contract action and allowing the plaintiff to proceed to a full trial, specifically employing a low threshold for the burden of proof placed upon the plaintiff “given the significant remedies in Section 137.1 and the protection for litigants to bring legitimate claims before the court” (para 50).
The facts of the case dealt with a plaintiff, a company that proposed a development, claiming breach of contract and damages whereby the defendants, an incorporated association of residents from a community in Sault Sainte Marie, testified before the Ontario Municipal Board on an issue contrary to previous minutes of settlement that led to a court order. The testimony was considered an expression that relates to a matter of public interest as the proposed development would affect the municipality at large. On the other hand, the “sanctity of agreements made between parties” (para 47) was considered of substantial merit, in the sense that it has substance, and out-weighed public interest; additionally, in the absence of a filed defense and in the view of the presiding judge, there was no valid defence. Although both parties met their burden of proof, neither got costs.
In the second, the Ontario Municipal Board specified in Campione v. Vaughan (City), 2016 CanLII 33681 (Ont OMB) that “an appeal right or securing standing as a party in a proceeding before the Board […] and then being able to call a full case as an appellant or added party” does not constitute a matter of public interest. This case dealt singularly with the issue of costs.
As a lawyer prosecuting several defamation actions for clients, the concern is that there are insufficient safeguards in place to limit the merits review to the true SLAPP suits. More is required to define the terms and the purpose of these new powers to make clear that only the clearest of cases will be considered SLAPP suits and will be dismissed at an early stage.
As stated by Justice E. Gareau: “the provision of Section 137.1 of the Courts of Justice Act [is] awkwardly drafted which is also surprising given the drastic effect of its provisions” (para 24). A clear interpretation and guidelines are required for what “substantial merits” means and what a plaintiff will need to prove to meet the test. A clear interpretation and guidelines are also required for what a plaintiff needs to lead as evidence to prove that the defendant has “no valid defence”. Furthermore, it would be recommended that the legislation be amended to award costs to the successful party of the motion rather than disproportionally awarding the successful moving party of the motion. Otherwise, several valid defamation actions will fail because of this new merits review, which will discourage plaintiffs from commencing defamation claims in the future. Despite its “quasi-constitutional status” in Canadian law, the protection of reputation will be eroded and it could be open season for unjustifiable reputational warfare in Canada.