Strategic lawsuits against public participation (SLAPP suits) are lawsuits filed for an improper purpose, namely with the intention of limiting expression on matters of public interest by burdening defendants with the costs of litigation (in contrast to lawsuits in pursuit of legitimate legal claims). An example would be an oil company suing a resident for raising concerns over the environmental impact of a proposed new refinery. To counteract this abuse and discourage such claims, Ontario introduced the Ontario Protection of Public Participation Act, 2015, S.O. 2015, c. 23 which added sections 137.1 to 137.5 to the Courts of Justice Act, R.S.O. 1990, c C. 43.. This legislation, often referred to as Ontario’s anti-SLAPP legislation, aims to protect freedom of expression on matters of public interest.
Ontario’s anti-SLAPP legislation is intended to allow defendants to have strategic or abusive actions – typically defamation proceedings (though sometimes also breach of contract or other) – dismissed at an early stage in order to protect the public interest in freedom of expression. To discourage parties from brining SLAPP suits (and to encourage anti-SLAPP motions), the Act provides for “full” cost reimbursement where an anti-SLAPP motion is successful.
From an evidentiary standpoint, anti-SLAPP motions are situated between motions to strike (where the Responding parties’ pleadings are generally accepted as true) and summary judgement motions. As such, they tend to be complex and time consuming motions to bring and defend, and caution should be exercised before brining such motions.
Indicia of SLAPP suits can include (and this applies to counterclaims as well), but are not limited to:
- A history of the plaintiff using litigation or the threat of litigation to silence critics;
- A financial or power imbalance that strongly favours the plaintiff;
- A punitive or retributory purpose animating the plaintiff’s bringing of the claim; and
- Minimal or nominal damages suffered by the plaintiff;
The test on an anti-SLAPP motion appears relatively straightforward, as:
- On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
- A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that:
- there are grounds to believe that,
- the proceeding has substantial merit, and
- the moving party has no valid defence in the proceeding; and
- the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
As such, argument on an anti-SLAPP motion proceeds in two stages. Initially, the party bringing the motion must first persuade the judge the lawsuit “arises from an expression made by the person that relates to a matter of public interest”: s. 137.1(3). If the moving party cannot meet this threshold, the motion must be dismissed.
If the moving party meets that initial threshold, the analysis moves to the second stage, the merits-based hurdle. The onus then shifts to the responding party, to persuade the judge that there are grounds to conclude that:
- the lawsuit has substantial merit;
- the defendant has no valid defence; and
- the harm likely to be or which has been suffered by the defendants as a result of the plaintiffs’ expression “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”: s. 137.1(4)(b).
This test has been subject to extensive analysis and interpretation at the appellate level, and if you are thinking about brining such motion, or have had such motion brought against you, you may benefit from hiring a lawyer with experience successfully defending against such motions.
Interestingly, while the legislation provides that where an anti-SLAPP motion is brought unsuccessfully, the responding party is (typically) not entitled to recover any costs expended, exceptions have been found, where for instance such motions are brought in relation to private, rather than public interests.
Why Choose Michael’s Firm
In addition to being a Peer Reviewed lawyer, Michael has experience with all stages of civil litigation (including success in defending against anti-SLAPP motions). Michael is also a former Member of the Board (Bencher) at the Law Society of Ontario. By filling out our Contact Form or calling us at 1-647-495-8995 we will be happy to set up a consultation, which can be provided virtually or in person.