Canada: Pointed Exchange: SCC Clarifies Ontario's Anti-SLAPP Test, Splits Over Its Application

On September 10, 2020, the Supreme Court of Canada (SCC) released long-awaited decisions interpreting and applying Ontario's anti-SLAPP legislation, in the companion cases of 1704604 Ontario Ltd. v. Pointes Protection Association (Pointes) and Bent v. Platnick (Platnick). This is the first time the SCC has considered this legislation, enacted in 2015 to discourage the use of litigation as a means of unduly limiting expression on matters of public interest.

THE LEGISLATION

The term "anti-SLAPP," which is not actually used in the legislation, stands for "Strategic Lawsuits Against Public Participation." Ontario's anti-SLAPP legislation (anti-SLAPP law), which is found in ss. 137.1-137.5 of the Courts of Justice Act, allows a defendant to move at any stage in a proceeding to have the claim dismissed. So long as the defendant can show that the lawsuit arises from expression (which is defined broadly) "that relates to a matter of public interest" (which is also defined broadly), the burden shifts to the plaintiff to demonstrate grounds to believe that: (1) the action has "substantial merit;" (2) there is "no valid defence to the proceeding" (together, Merit-Based Hurdle); and that (3) the harm caused by the expression is "sufficiently serious" that the public interest in continuing with the action outweighs the public interest in protecting the expression (Public Interest Balancing Test). The anti-SLAPP law is not limited to proceedings directly concerned with expression, such as defamation suits, but can apply to a range of proceedings.

THE FACTS

Pointes arose from a breach of contract action by a developer against the defendant association (PPA) after the president of the PPA testified in an Ontario Municipal Board proceeding initiated by the developer, allegedly violating a prior settlement agreement between the parties.

In Platnick, a medical doctor was engaged through an insurance company to review other medical specialists' assessments of individuals injured in motor vehicle accidents, and to prepare a final report with an ultimate assessment of impairment. After discovering apparent discrepancies between Dr. Platnick's reports and those of the doctors whose findings he was meant to review, Ms. Bent, a personal injury lawyer and president-elect of the Ontario Trial Lawyers Association (OTLA), sent an email to the OTLA member ListServ. The email included statements asserting that Dr. Platnick had "altered" doctors' reports and "changed" a doctor's decision as to a victim's level of impairment. The email was leaked and published in a magazine article, and Dr. Platnick sued Ms. Bent and her law firm in defamation for C$16.3-million. Ms. Bent brought an anti-SLAPP motion, seeking to have the claim against her dismissed.

THE SCC DECISIONS

Pointes: SCC Unanimous on the Framework

In Pointes, Justice Côté wrote for a unanimous Court, providing guidance on the anti-SLAPP test and its application. The Court's reasons emphasize the importance of the purpose of the legislation, followed by a close parsing of the text of the provisions with that purpose in mind.

With respect to the Merits-Based Hurdle, there had been a great deal of debate about the evidentiary standard on the plaintiff/moving party to demonstrate "grounds to believe" the proceeding had "substantial merit" and that there was "no valid defence." The  Court clarified that the standard is more demanding than the standard applicable on a motion to strike, but less stringent than the "likely to succeed" standard, the strong prima face case threshold or the test for summary judgment. The Court held that to have "substantial merit" the proceeding must "have a real prospect of success . that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff." The claim must be legally tenable and supported by evidence that is reasonably capable of belief, and this must be the case on a subjective determination by the motion judge.

This standard also applies to the corollary burden of showing there is no valid defence. Once the defendant has put defences into play, the plaintiff must satisfy the court that the defences are not legally tenable or supported by evidence that is reasonably capable of belief, and therefore have no real prospect of success. If the plaintiff fails to discharge this burden with respect to any one of the defences raised, the underlying claim should be dismissed.

On the issue of evidence to be adduced at the Merits-Based Hurdle, the Court noted that anti-SLAPP motions are generally brought at an early stage in a proceeding such that a motion judge should engage in only limited weighing of the evidence. The bar should not be "set too high" at the Merits-Based stage, given that the Public Interest Balancing Test will serve as a "robust backstop" for motion judges 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 Court emphasized that the Public Interest Balancing Test is the "crux" or "heart" of the analysis. It is here that the court can "scrutinize what is really going on in a particular case," and effectively assess whether a lawsuit should be allowed to proceed to trial. The burden is on the plaintiff to show on a balance of probabilities that it "likely has suffered or will suffer harm," that such harm is a result of the expression at issue, and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation.

With respect to demonstrating harm, the plaintiff need not prove causation, but must provide sufficient evidence to allow the motion judge to draw an inference of likelihood in respect of both the existence of harm and the causal link to the expression. Harm is not limited to financial harm and can include evidence of damage to reputation. At this balancing stage in the analysis, the quality and motivation behind the expression are relevant, and may be assessed with regard to the core values underlying freedom of expression.

Applying this framework, the Court dismissed the developer's action, finding that the underlying breach of contract action did not have substantial merit. At the public interest balancing stage of the test, the harm and the public interest in the proceeding continuing were at the very low end of the spectrum, while the public interest in protecting the PPA's expression on environmental matters and encouraging truthful testimony was strong.

Platnick: Split on the Application of the Test

In Platnick, the Court applied the anti-SLAPP framework in the context of a defamation action. However, demonstrating that the application of the test to particular cases will continue to raise issues, the SCC split 5/4, disagreeing on, among other things, whether the plaintiff had met his burden of demonstrating that there were grounds to believe the defendant had no valid defence.

The majority decision emphasized that the findings on the merit of the case and defences were only for the purposes of the anti-SLAPP motion. The majority concluded that any occasion of qualified privilege had been exceeded because, among other things, it was not necessary for the defendant to name the plaintiff. Additionally, the majority found that because the defendant's email arguably violated the ListServ agreement (that precluded making defamatory comments), she could not rely on its confidentiality provisions. With respect to justification, there was a basis in the record and the law to support a finding that the defence had no real prospect of success.

At the public interest balancing stage of the test, the majority accepted Dr. Platnick's evidence regarding the harm to his reputation, citing evidence he had been "blacklisted," and his insurance business significantly affected. The majority also held that the "personal attack" by Ms. Bent lowered the quality of her expression such that the balance of harms favoured the plaintiff.

The dissenting judges would have dismissed the action on the basis that there were grounds to believe the defendant had a valid defence of qualified privilege. The dissent emphasized that the email was sent to a ListServ under a confidentiality agreement, and that the defendant had a "clear duty to inform OTLA members" about the expert report issues in her email. The dissent questioned how defamatory language can be considered unnecessary to the occasion of privilege, noting that:

At the public interest balancing stage, the dissent would have found that the interest in protecting expression on matters of public interest outweighed the harm to individual reputation, and appeared to question whether the majority's approach preserved the goals of the legislation. Ultimately, the majority and dissent differed strongly on the correct balance to be struck between protection of reputation and freedom of expression.

IMPLICATIONS

Taken together, Pointes and Platnick provide guidance for lower courts, including in provinces like British Columbia with similar regimes. The two decisions also provide guidance for litigants who are considering bringing a defamation claim (which have been increasingly met with anti-SLAPP motions) or other claim arising from expression, or considering bringing an anti-SLAPP motion themselves.

However, the strong divide between the majority and dissent in Platnick indicates that there remains significant room for judicial discretion on the application of the framework, highlighting some continuing unpredictability for litigants. It will also be interesting to see how courts interpret the Pointes framework in other types of cases, including where expression more unanimously valued is at issue, where other common defences to defamation - such as fair comment or responsible communication in the public interest - are at play, or in cases involving other causes of action arising from expression.

For lawyers, statements made by the majority about both the importance of professional reputation and the heightened duty on lawyers to investigate defamatory statements - including because of their professional obligations - are also worth nothing.

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