Posted by Ramani Nadarajah, CELA Counsel
In a unanimous decision, the Supreme Court of Canada, in 1704604 Ontario Limited v Pointes Protection Association, et al., established the proper interpretation and application of Ontario’s anti-SLAPP provisions. The decision was released on September 10, 2020.
In its decision, the Court observed that “[f]reedom of expression is a fundamental right and value; the ability to express oneself and engage in the interchange of ideas fosters a pluralistic and healthy democracy by generating fruitful public discourse and corresponding public participation in civil society.” Ontario’s anti-SLAPP provisions, the Court added, were “enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy.”
SLAPP is an acronym for strategic lawsuits against public participation. These lawsuits are commenced with the intention of silencing individuals or groups from speaking out on matters of public interest. In 1704604 Ontario Limited, the developer had brought a multimillion-dollar lawsuit against a residents’ group and six of its members for expressing environmental concerns about a proposed subdivision. In dismissing the action, the Court found the developer’s lawsuit lacked substantial merit.
Ontario’s anti SLAPP provisions amended the Courts of Justice Act (CJA)(ss. 137.1 to 137.5) five years ago to address the growing number of SLAPPs in the province. The provisions allow for a motion to be brought by a defendant – the party who is sued – to dismiss an action that unduly limits a person’s expression on a matter of public interest.
Under the framework, the burden is on the defendant to satisfy a judge that the proceeding arises from an expression made by the defendant on a matter of public interest.
Once this threshold has been met, the plaintiff – the party who commenced the lawsuit – must satisfy a two-fold test in order avoid having the action dismissed.
First, the plaintiff must establish that there are grounds to believe that the case has substantial merit and that the defendant has no valid defences. Second, the plaintiff must also establish that the harm likely to be or already suffered by the expression is sufficiently serious and the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
The Supreme Court noted that the second part of the test is the core of the analytical framework and allows a judge to dismiss “even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue.”
The Supreme Court’s decision provides welcome clarity to Ontario’s anti- SLAPP provisions. It also gives helpful guidance interpreting the anti-SLAPP laws in other provinces, such as British Columbia, which adopted the Ontario model.
CELA played an instrumental role in the enactment of the anti-SLAPP provisions in the CJA. CELA counsel co-authored a report on the urgent need for anti-SLAPP legislation in Ontario.
CELA counsel also co-authored a law journal article titled “The failure of Defamation Law to Safeguard Against SLAPPs.” The article was published in the Review of European Community and International Law and was one of ten articles posted on the Ministry of Attorney General’s website to provide more information about the SLAPP phenomena.
CELA counsel provided written submission and made an oral presentation to the Anti-SLAPP Advisory Panel which was tasked with providing a report for the Ontario government on the content of anti-SLAPP legislation. CELA counsel also testified before the Standing Committee on Justice Policy on the Protection of Public Participation Act, 2015.
This case demonstrates the importance of the work of CELA and others in getting anti-SLAPP legislation passed in Ontario so that the public can participate in democratic processes, without fear of being sued.