Ontario’s Anti-SLAPP law: off to a good start, but important concerns remain
[Co-written with Andrea Gonsalves and Carlo Di Carlo] In late 2015, the Ontario Legislature identified a problem: it saw an increasing number of defamation cases in which the plaintiff’s goal was not to obtain compensation, but instead to drag a defendant into interminable and costly litigation as a form of retribution against the defendant for speaking out against the plaintiff. The goal was not to obtain justice; it was to exhaust, defeat and intimidate the defendant into staying quiet. Typically, the defendant had spoken out against the plaintiff on a matter of public importance; thus, these lawsuits are commonly referred to as strategic lawsuits against public participation, or “SLAPPs”.
Before 2015, defendants had few avenues to quickly dismiss suits that were manifestly SLAPPs. In order to address this problem, the Ontario Legislature enacted the Protection of Public Participation Act, 2015 (PPPA), which became effective on November 3, 2015. This Act allows a defendant to bring a motion to dismiss a SLAPP at the earliest stages of the litigation process. The idea is a simple one: to offer defendants relief from the crushing burden of dubious multi-million dollar claims brought by well-resourced plaintiffs.
As will be described in more detail below, the initial cases interpreting the PPPA suggest the Act may well serve its objective of deterring and quickly ending SLAPPs, but important questions remain unresolved, including both procedural and substantive issues that may prevent defendants from accessing the PPPA in any meaningful manner. This post aims to summarize the PPPA and the policy rationale supporting its creation, to review how courts have interpreted and applied the legislation so far, and to highlight some ongoing areas of concern.
Background on the PPPA
The express purpose of the PPPA is to encourage expression on matters of public importance and to discourage SLAPPs. During debate at the Legislative Assembly, the Assistant to the Attorney General elaborated on the purpose of the PPPA, stating:
We all know that strategic lawsuits against public participation have long been used as a tactic by companies or individuals to tie the hands of weaker opponents—typically those who cannot afford the cost of a lengthy legal battle. What we have is an unfair way to win an argument, and this needs to come to an end. [1]
The PPPA strives to accomplish this purpose in two ways – procedurally and substantively.
With respect to procedure, the PPPA creates an expedited process by providing that a motion brought under the PPPA “shall” be heard no later than 60 days after the notice of motion is filed with the court.[2] For the Ontario civil litigation process, this is lightning speed; indeed, virtually no other type of civil motion is given this kind of fast-track treatment.
The rationale for needing a quick resort to the courts is self-evident: the longer a SLAPP continues, the more significant its chilling effect on matters of public importance will be. As MPP Jagmeet Singh, for the NDP, stated:
Now, in the case of a strategic lawsuit designed to deter public participation, the initiator of that lawsuit has a vested interest in ensuring that the lawsuit takes as long as possible to get a resolution. In fact, they don’t want the lawsuit to get a resolution. It’s the sword of Damocles, it’s the threat of that lawsuit, which is actually the deterrent. [3]
But the PPPA’s revolutionary nature is not only procedural. Substantively, the law effectively places the onus on the plaintiff to show the court not only that the lawsuit is legitimate, but that it will suffer significant harm unless the case is allowed to proceed. More specifically, so long as the defendant can meet his or her initial onus of showing that the expression at issue relates to a matter of public interest[4], the action must be dismissed unless the plaintiff can show grounds to believe (i) that his/her lawsuit has “substantial merit” and (ii) that the defendant has “no valid defence”; and can show that the harm the plaintiff has suffered or is likely to suffer outweighs the importance of expression on matters of public importance.[5]
This regime, as drafted, is anathema to the age-old concept that a plaintiff must have their day in court; in many cases, it will require the plaintiff to prove they are entitled to their day in court.
Summary of the cases: reason to believe that there is bite to the PPPA
Despite the pointed language of the PPPA, the first courts that applied the statute took a very plaintiff-friendly approach. In the first reported decision considering the PPPA, 1706406 Ontario Ltd v Pointes Protection Association[6], the Court concluded that the threshold to be met by plaintiffs responding to an anti-SLAPP motion “must be a low one” given the consequences. Applying this approach, the Court found the plaintiff’s claim had “substantial merit” since it was “not a claim that is frivolous or fleeting”.[7] The anti-SLAPP motion was dismissed.
In another decision Accruent LLC v Mishimagi,[8] the Court watered down the PPPA’s impact in a different way. In that case, the Court concluded that the defendant’s expression relating to ongoing court proceedings was not on a matter of public interest, even though discussion and criticism of court proceedings is typically considered to be in the public interest. This result is all the more surprising given the Court’s blunt assessment of the plaintiff’s ulterior motives: “Here, it appears that the plaintiff has brought a weak claim and used the threat of costs and embarrassment to try to extract something from the defendant that the law of defamation does not otherwise provide – a gag order.” In other words, this was the quintessential SLAPP case, yet it was still allowed to proceed.
These early decisions led some commentators – including the co-authors of this post – to worry that the PPPA was at risk of becoming a paper tiger.[9]
However, the more recent trend in the case law suggests that courts will interpret the PPPA in a manner that is more consistent with the legislature’s intent. This change of course started with a pair of thoughtful, well-reasoned decisions from Justice Sean Dunphy of the Superior Court of Justice. In Able Translations Ltd v Express International Translations Inc[10] and Platnick v Bent[11], Justice Dunphy rejected the “low threshold” standard set out in Pointes. Instead, he held that in order to satisfy the “substantial merit” aspect of the test a plaintiff must show that “there is credible and compelling evidence supporting the claim as being as serious one with a reasonable likelihood of success”.[12] Importantly, Justice Dunphy clarified that merely being legally tenable was not sufficient to pass this part of the test, contrary to what was suggested in Pointes.
With respect to the “no valid defence” part of the test, Justice Dunphy held that it is not enough for the plaintiff to show “some chance” that the defence may not succeed. Instead, the plaintiff must convince the court that “there is a reasonable probability that none of these defences would succeed if examined in depth following a full trial”.[13] This, too, is a rigorous threshold. Indeed, in the Platnick decision Justice Dunphy agreed with the defendants who argued that so long as their defences have an “air of reality” about them the court should dismiss the action.[14]
Arguably the most significant aspect of Justice Dunphy’s decisions, however, is his treatment of the third factor, the balancing test. Here, Justice Dunphy held that in order to survive a PPPA motion to dismiss, the plaintiff must produce credible and compelling evidence of harm that appears reasonably likely to be proved at trial. It will not be sufficient for the plaintiff to merely assert that it has suffered harm. Instead, it will have to provide some evidentiary basis to support such an allegation.
More recent cases have supported Justice Dunphy’s interpretation of the PPPA, while few, if any, have endorsed the more restrictive view in Pointes. In particular, the courts in Hudspeth v Whatcott,[15] Fortress Real Developments Inc v Rabidoux,[16] and Veneruzzo v Storey,[17] and Thompson v Cohodes,[18] have all generally accepted the framework set out by Justice Dunphy in Able and Platnick.
The final stage of the anti-SLAPP analysis – the requirement that the plaintiff’s harm (or potential harm) outweighs the importance of expression on matters of public importance – had received relatively little attention until late. However, in two decisions in 2017, this balancing test played a role in the courts’ decisions on the defendants’ motions – in one case, leading to the action being dismissed, and in another case, allowing the action to continue.
In Fortress Real Developments, a libel case, the court accepted that the expression at issue related to a matter of public interest. Without deciding whether the plaintiffs had met their onus with respect to the substantial merit of the claim and the lack of any valid defences, the court decided the motion on the basis that any harm suffered by the plaintiffs as a result of the defendant’s expression did not outweigh the public interest in protecting the that expression. Significantly, in evaluating “the harm likely to be or have been suffered by the responding party [the plaintiff in the lawsuit]”, the court looked for evidence of damages suffered by the plaintiffs. While there was evidence that the plaintiff had suffered “unspecified losses” as a result of having to deal with the defendant’s actions, the court found there was “no evidence of any specific damages suffered by the Plaintiffs” and no evidentiary support for the belief that any harm to plaintiffs’ reputation caused by the defendant’s statements would impair their business operations in the future. In the absence of such evidence, the court granted the motion and dismissed the action.
Justice Kristjanson took a less rigid approach to the balancing test in Thompson v Cohodes, another libel case. Rather than looking for evidence of specific damages, she considered various factors relevant to the harm that has been and is likely to be suffered by the plaintiff, namely: the seriousness of the allegations in the statements at issue, the mode and extent of publication; the position and standing of the plaintiff in the community; and the conduct of the defendant before and after the time of publication. Considering those factors, she found there were grounds to believe the plaintiff would be entitled to damages in the action. And since the value of the defendant’s expression was low, the public interest in permitting the plaintiff to proceed with the action outweighed the public interest in the expression.
The Thompson decision is more consistent with the approach to damages in libel cases. Damages for libel are presumed from the publication of a libelous statement and need not be established by proof of actual loss. It therefore seems unduly strict for a court on a PPPA motion to require that the plaintiff show evidence of specific damages or harm. A more sound approach is to consider the relevant factors that would contribute to the court’s assessment of damages if the plaintiff successfully proves libel, and to apply those factors in assessing the likely harm to the plaintiff and the public interest in allowing the plaintiff’s action to proceed.
As a whole, these developments in the case law are encouraging. They suggest that the PPPA will be interpreted in a manner that will provide protections to individuals speaking out on matters of public importance and who face a SLAPP in response.
Further guidance on how the PPPA will be treated by courts is expected in the coming months. The Court of Appeal has heard or will soon hear appeals in a number of the Superior Court decisions applying the PPPA. Once the Court of Appeal weighs in by deciding these cases, lower courts will have important direction on how to interpret and apply the PPPA – and the balance of power between plaintiffs and defendants in these matters will have been calibrated with greater certainty.
Important cases also continue to percolate at the lower court level. A PPPA motion in Rizvee v Newman was heard in early 2017 and remains under reserve.[19] This is a case dealing with defendant who on her blog as well as on Facebook spoke out against a candidate for office in the 2016 Federal Election and became the subject of a defamation suit as a result. It is somewhat unique among the other PPPA cases in that, because it involves speech about a political actor made during an election, it engages the core of the value underlying freedom of expression.
Procedure trumps substance?
Although the substance of the PPPA suggests that it may provide significant protections to those speaking on matters of public interest, issues have arisen regarding the procedures through which this regime is to be implemented. This is demonstrated in Papa v Zeppieri where the Court adjourned a PPPA motion initially scheduled for October 9, 2016 until June 2017. The rationale provided, in part, was the court’s view that this motion required 2 days to argue.[20]
This creates a potentially worrisome trend – one that could threaten the viability of the PPPA regime and the objectives it is designed to serve. Requiring a 2 day motion to determine the application of the PPPA all but guarantees that the right to have a hearing within 60 days will not be respected. It provides the strategic plaintiff with an invitation to delay the dismissal of his or her claim. This is completely contrary to what the legislature intended when it drafted the PPPA. During the debate introducing the PPPA, the assistant to the Attorney General noted that the PPPA would identify strategic lawsuits “quickly” in order to stop individuals from using such suits to “silence critics”.[21] The almost nine-month delay in the Papa decision is precisely the harm that the legislature intended to avoid: the continuation of the SLAPP allows its deterrent effect to persist.
Further, a lengthy hearing is neither necessary nor appropriate for most PPPA motions. These proceedings are not meant to be an alternative form of summary judgment. They are a sui generis regime intended to quickly weed out SLAPPs so as to encourage expression on matters of public interest and discourage retaliatory lawsuits. There is a serious risk that, by allowing PPPA motions to become lengthy, costly and unduly complicated, hearings that require adjournments and lengthy lead-up times, courts will be inadvertently ensuring that the PPPA will not accomplish the goal that the legislature set out for it. It will become a remedial statute that is effectively out of reach for those who need its remedies the most.
[1] Ontario, Legislative Assembly, House of Commons Debates, No 112 (27 October 2015) at 1620 (Hon Lorenzo Berardinetti).
[2] Section 137.2(2)
[3] Ontario, Legislative Assembly, House of Commons Debates, No 112 (27 October 2015) at 1710 (Hon Jagmeet Singh).
[4] Section 137.1(3)
[5] Section 137.1(4)
[6] 1704604 Ontario Ltd. v. Pointes Protection Assn., 2016 ONSC 2884.
[8] Accruent LLC v. Mishimagi, 2016 ONSC 6924 at para. 4.
[9] See A. Gonsalves and J. Safayeni, “Anti-SLAPP law becoming paper tiger?” Law Times (16 Jan 2017)
[10] Able Translations Ltd. v. Express International Translations Inc., [2016] O.J. No. 5740 (Sup Ct J).
[11] Platnick v.Bent, [2016] O.J. No. 6223 (Sup Ct J).
[12] Able Translations Ltd. v. Express International Translations Inc., [2016] O.J. No. 5740, at para 49 (Sup Ct J).
[14] Platnick v.Bent, [2016] O.J. No. 6223, at para 94, 98 (Sup Ct J).
[15] Hudspeth v Whatcott, 2017 ONSC 1708 at para. 179.
[16] Fortress Real Developments Inc. v Rabidoux, 2017 ONSC 167 at para 28.
[17] Veneruzzo et al . v Storey, 2017 ONSC 683 at para. 18.
[18] Thompson v Cohodes, 2017 ONSC 2590 at para 13.
[19] In the interests of full disclosure, Stockwoods LLP (Nader Hasan and Carlo di Carlo) represented the defendant/moving party in this case.
[20] Kim Zarzour, “Ruling on Richmond Hill anti-SLAPP legislation case delayed” < http://www.yorkregion.com/news-story/6900998-ruling-on-richmond-hill-anti-slapp-legislation-case-delayed/ .
[21] Ontario, Legislative Assembly, House of Commons Debates, No 112 (27 October 2015) at 1620 (Hon Lorenzo Berardinetti).
