The Supreme Court’s judgments on Ontario’s anti-SLAPP legislation: Seven key takeaways

On September 10, 2020, the Supreme Court of Canada released its highly anticipated decisions in two cases addressing the interpretation and application of Ontario’s “anti-SLAPP” laws.  The two appeals — 1704604 Ontario Ltd. v. Pointes Protection Association and Bent v. Platnick — clarified and, in some important respects, strengthened the anti-SLAPP framework.  This post will outline seven key takeaways from the Pointes Protection and Platnick appeals.[1]

Background

Before turning to what the Supreme Court decided, it may be useful to offer an overview of how Ontario’s anti-SLAPP laws work and what they are supposed to do.  (While only Ontario cases were considered by the Supreme Court, it is worth noting that British Columbia has a substantially similar set of laws in place.)

Anti-SLAPP laws are designed to allow defendants to try and have a lawsuit against them dismissed at a very early stage if that lawsuit qualifies as a “SLAPP” or strategic lawsuit against public participation.  The idea is that defendants should not be put through the time and expense of defending a case at trial if that case is brought for abusive purposes (e.g. to silence or intimidate a defendant) as opposed to an honest attempt by a plaintiff to try and vindicate their rights or protect their reputation.  A prototypical example might be a major corporation that launches a multi-million dollar defamation lawsuit against a blogger for a post that offers sincere criticisms of the corporation’s conduct and has not been widely read.  This is the kind of litigation that would discourage public participation and chill free expression.

The difficult question, of course, is how to draw the line between abusive lawsuits that ought to be stopped in their tracks at an early stage and legitimate litigation that should be allowed to advance to trial.  The anti-SLAPP framework does this through a three-stage analysis:

• Public interest threshold.  At the first stage, the onus is on the defendant who is trying to have the lawsuit dismissed to show that the plaintiff’s claim “arises from an expression relating to a matter of public interest”.
• Merits-based hurdle.  If the defendant meets the public interest threshold, then the onus shifts to the plaintiff to show that there are grounds to believe the plaintiff’s case has “substantial merit” and the defendant has “no valid defence”. 
• Public interest hurdle.  Finally, the plaintiff must also show that the harm likely to be or have been suffered and the corresponding public interest in permitting the lawsuit to continue outweighs the public interest in protecting the expression.  

If the defendant can meet the first stage, and the plaintiff cannot meet either one of the final two stages, then the plaintiff’s lawsuit is immediately dismissed — even if the case is still at its infancy.  The anti-SLAPP legislation also provides a default rule that a successful defendant on an anti-SLAPP motion gets full recovery of their legal costs (the normal rule in litigation would be only 50-60% recovery), and an unsuccessful defendant does not need to pay any portion of the plaintiff’s legal costs.

The Supreme Court’s decisions

The Supreme Court of Canada’s decisions in Pointes Protection and Platnick address each of the three major stages of the anti-SLAPP framework.  Here are seven key takeaways.

1.  Defendants will easily meet the “public interest” threshold in most cases.  Following the approach taken by most Ontario courts to date, the Supreme Court’s decisions confirm that the stage of the anti-SLAPP framework will continue to be an easy test for most defendants to meet.  This is a welcome result that accords with the underlying purpose of the anti-SLAPP laws.

The Supreme Court clarified that the requirement for the lawsuit to “arise from an expression” does not require the lawsuit to directly arise from expression.  This will not be an issue in most anti-SLAPP situations; for example, in any defamation case, the lawsuit obviously arises from expression.  But it was a point of significant controversy in Pointes Protection, where the plaintiff argued that the defendants’ statements had breached a settlement agreement (and did not frame their claim in terms of defamation at all).  The Supreme Court’s confirmation that anti-SLAPP laws can apply in these kinds of scenarios avoids plaintiffs being able to eschew the application of the anti-SLAPP framework through creative drafting of their legal claims.

Just as importantly, the Supreme Court confirmed that a “matter of public interest” is to be given a “broad”, “liberal”, “generous” and “expansive” interpretation, consistent with the principles the Court adopted in Grant v. Torstar Corp. when determining a matter of public interest in the context of the responsible communication defence in defamation law. At this stage, there is no qualitative assessment of the expression; all that matters is whether it pertains to a matter of public interest, broadly conceived. In other words, whether “some segment of the community would have a genuine interest in receiving information on the subject” (Pointes at para. 27).

2.  The merits-based hurdle for plaintiffs has some teeth.  Before the Supreme Court rendered its decisions, courts in Ontario had increasingly adopted a trend of allowing plaintiffs to sail through the merits-based hurdle, leading some (including myself) to worry that it had become something like a rubber stamp.  The nadir may have been a 2019 Ontario Court of Appeal decision concluding that it was sufficient for a plaintiff to merely show that a defence “could go either way” (at para. 15)  at trial — a standard that is hard to reconcile with the statutory requirement for the plaintiff to show grounds to believe their case has “substantial merit” and the defendant has “no valid defence”.

The Supreme Court’s decisions make it clear that a claim that “could go either way” will no longer pass muster.  The merits-based hurdle requires a plaintiff has to show that their case has “a real prospect of success” — meaning that the substance of the case “tends to weigh more in favour of the plaintiff” based on a claim that is “legally tenable and supported by evidence that is reasonably capable of belief” (Pointes at para 49).  This standard applies both to components of a plaintiff’s cause of action (e.g. for defamation, the publication of words identifying the plaintiff that tend to lower the plaintiff’s reputation) and to a plaintiff’s burden to prove “no valid defences” are raised by a defendant (e.g. for defamation, truth/justification, qualified privilege, fair comment and responsible communication on matters of public interest).

The Supreme Court went to some pains to stress that anti-SLAPP motions are not to be treated as summary judgment motions, which are more factually complex and can involve a final determination of the merits of a claim (and are, in that sense, a substitution for a trial rather than a prelude to one).  By contrast, anti-SLAPP motions “are made at an earlier stage in the litigation process, with much more limited evidence and corresponding procedural limitations”, meaning that judges “should engage in only limited weighing of the evidence” and a “preliminary assessment of credibility” while deferring “ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage” (Pointes at para. 52).  

As a practical matter, however, these cautions are unlikely to reduce the growing complexity, cost and scope of many anti-SLAPP motions.  The fact remains that the merits— including issues of evidence and credibility — remain a relevant, and perhaps even determinative, consideration in any given case.  As long as that remains true, parties can be expected to devote significant resources to addressing the merits-based hurdle.  This is an unavoidable consequence of having an anti-SLAPP regime that requires a hard look at the substance of the plaintiff’s case as part of the overall assessment of whether that case should proceed.

3.  The motion judge who must assess the merits-based hurdle from their own perspective.  At first glance, it might seem obvious that the judge hearing the anti-SLAPP motion should make a determination on the merits-based hurdle from their own perspective.  But the Ontario Court of Appeal had taken a different approach, concluding that the motion judge should instead make their determination based on the perspective of what a hypothetical “reasonable” judge could theoretically conclude.  This degree of abstraction may have contributed to the ease with which plaintiffs were previously able to meet the merits-based hurdle:  even if a judge was prepared to say they didn’t think the plaintiff’s case had sufficient merit, it was harder for them to conclude that no reasonable judge could make that determination.

Following the Supreme Court’s decisions, it is now clear that the judge hearing the anti-SLAPP motion must make the necessary determinations for themselves and from their own perspective.  Particularly when combined with the “real prospect of success” standard, this modification to the anti-SLAPP framework contributes to the merits-based hurdle having some real teeth moving forward.

4.  The public interest hurdle remains the “fundamental crux” of the anti-SLAPP analysis.  Although the Supreme Court’s decisions breathe some life into the plaintiff’s merits-based hurdle and ensure that it will not be a simple rubber stamp, the decisions are equally clear that the “fundamental crux” of the anti-SLAPP analysis remains the public interest hurdle.  

According to the Supreme Court, it is at this stage where judges can “scrutinize what is really going on in the particular case before them” and “assess how allowing individuals or organizations to vindicate their rights through a lawsuit… affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy” (Pointes at para. 81).  The Court stresses that judges must give this stage “due importance” in their anti-SLAPP analysis.  Such strong language from the Court suggests that — even with a more clarified and somewhat more robust merits-based hurdle — it is at this final stage that most anti-SLAPP motions will continue to be decided.

5.  The plaintiff’s harm can include reputational harm and requires some causal link.  The aspect of the Supreme Court’s decisions that is potentially the most problematic for defendants in anti-SLAPP proceedings is the Court’s strong endorsement of purely reputational harm as an interest that weighs (perhaps heavily) at the public interest hurdle stage.

This is a departure from the Ontario Court of Appeal’s decision in Pointes Protection, which had found that “[t]he harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression will be measured primarily by the monetary damages suffered or likely to be suffered by the plaintiff as a consequence of the impugned expression” (emphasis added).  The Court of Appeal subsequently demonstrated a willingness to weigh purely reputational harm more heavily in cases where the expression was particularly egregious and defamatory (e.g. accusing someone of defrauding victims of a forest fire or supporting terrorists).  Otherwise, the focus was mainly on monetary damages, with reputational harm regarded with some skepticism and taking a backseat in the public interest hurdle analysis.

This has now changed.  In Pointes, the Supreme Court explains that “reputation is one of the most valuable assets a person or a business can possess” and that “harm is not limited to monetary harm, and neither type of harm is more important than the other” (para. 69).  The magnitude of harm will have an impact in the weighing exercise, but there is no reason to focus on one type of harm (i.e. financial) as opposed to another (i.e. reputational).

The full consequences of the Supreme Court’s bolstering of reputational interests at the public interest hurdle stage remains to be seen.  Of course, courts could still “consider” reputational interests, but conclude that the magnitude of the harm is low and thus does little to impact the weighing analysis.  At the very least, however, it gives plaintiffs a toehold to make arguments about reputational harm that would have been given short shift under the Court of Appeal’s prior jurisprudence.

While they parted ways on the issue of reputational harm, the Supreme Court did essentially adopt the Court of Appeal’s approach on the causation of harm — that is, the need to link the defendant’s expression to the plaintiff’s alleged harm.  Bald assertions of harm are not sufficient, but the plaintiff need not definitively prove harm or causation either.  Instead, the plaintiff must “provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link” (Pointes at para. 71).  This will be especially important where there may be “sources other than the defendant’s expression that may have caused the plaintiff harm” (Pointes at para. 72).  

6.  Defendants can rely on an expanded list of factors at the public interest stage, but no default indicia.  At the same time the Supreme Court gave plaintiffs a boost with the elevation of reputational harm at the public interest hurdle stage, the Court also endorsed a broad list of factors that defendants may be able rely on (to the extent that these factors can be linked to the weighing exercise).  The factors include:

• 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;
• minimal or nominal damages suffered by the plaintiff;
• the importance of the expression;
• the history of litigation between the parties;
• broader or collateral effects on other expressions on matters of public interest;
• the potential chilling effect on future expression by a party or by others;
• the defendant’s history of activism or advocacy in the public interest;
• any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award; and
• the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation.

There are at least three observations worth making about the Supreme Court’s analysis on this issue.

First, the Supreme Court’s list of factors expressly confirms that defendants may make arguments about the potentially negative implications of allowing litigation to proceed on individuals beyond the defendants themselves.  For example, the chilling effect of the litigation on others in society or the harmful impacts of allowing the litigation to proceed on vulnerable groups may be appropriate factors to weigh in the right case.  This broad and holistic approach to evaluating the “public interest in protecting the expression” is consistent with the statutory text and purpose of the anti-SLAPP laws.

Second, while the Supreme Court offered an expanded list of relevant considerations, it pivoted away from the Ontario Court of Appeal’s determination that four factors amounted to “indicia of a SLAPP suit”.  (The factors the Court of Appeal relied on are the first four on the bulleted list above.)  The Court of Appeal had taken to analyzing the four “indicia” as a kind of routine litmus test in anti-SLAPP cases at the public interest hurdle stage.  But the Supreme Court emphasized that a wider lens should be adopted based on a longer list of considerations, cautioning that these four factors “may bear on the analysis only to the extent that they are tethered to the text of the statute and the considerations explicitly contemplated by the legislature” (Pointes at para. 79).  This strong qualification suggests that courts should no longer apply the kind of litmus test analysis used by the Court of Appeal.

Finally, while a qualitative assessment of the expression at issue plays no role at the very first stage of the anti-SLAPP framework (the public interest threshold), it will invariably form part of the analysis under the public interest hurdle. While certain interveners had argued against such an approach, my own view is that it is an inescapable part of the requisite weighing — much like the Charter analysis for freedom of expression considers the content and “value” of expression at the justification stage.  As the Supreme Court put it, “a statement that contains deliberate falsehoods [or] gratuitous personal attacks… may still be an expression that relates to a matter of public interest.  However, the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies [or] vitriol” (Pointes at para 75).  

Taking this logic one step further, the Supreme Court held that the closer the expression is to any of the three core values underlying section 2(b) of the Charter — the search for truth, participation in political decision making and diversity in forms of self-fulfillment and human flourishing — the greater the public interest in protecting it.  This suggests that certain types of defendants may have an edge at the public interest stage, all else being equal.  This might include media defendants publishing an investigative piece, defendants who are whistleblowers and defendants whose expression arises in a political context.

7.  Applying the anti-SLAPP framework can lead to unpredictable results.  By its very nature, the anti-SLAPP framework established by the Supreme Court makes it difficult for parties to predict the outcome in many cases.  What one judge considers to be a case with a “real prospect of success” another judge may consider to be sufficiently weak so as to warrant dismissal.  Judges may similarly differ in assessing what factors are engaged at the public interest stage and in calibrating and weighing those competing interests.

Platnick offers a dramatic illustration of these dynamics at play.  The case involved an email sent by the defendant lawyer to a ‘listserv’ group of personal injury lawyers advising them of certain problems the defendant had with medical reports adduced by the plaintiff doctor while he was retained by insurance companies.  Issued immediately after Pointes Protection — where all nine members of the Supreme Court unanimously agreed on the proper anti-SLAPP framework — the Court’s decision in Platnick splits 5-4, with its members sharply divided on the application of the merits hurdle and the public interest hurdle.  

For the majority, the plaintiff demonstrated a real prospect of success in defeating the defence of qualified privilege; for the dissenting judges, the opposite was true.  (The Court’s discussion of qualified privilege is fascinating in its own right, but strays beyond the focus of this particular blog post.)  At the public interest hurdle stage, the majority found that the plaintiff had done enough to link significant monetary and reputational harm to the defendant’s expression, while the dissenting judges concluded the harm was as a result of the unforeseen “leak” of the plaintiff’s email by others in the listserv group and not the original communication itself.  Finally, the majority found that the public interest in protecting the expression at issue was “somewhere in the middle of the spectrum”, while the dissent was far more concerned about the “considerable chilling effect” the litigation would have on similar expression, which they found to be in the public interest.

The road ahead

In the end, Pointes Protection and Platnick affirm that anti-SLAPP laws are and will remain a powerful tool for defendants to end certain types of abusive litigation.  At the same time, given the stakes, the role that the underlying merits continue to play in the anti-SLAPP analysis and the myriad of potentially relevant factors at the public interest stage, most anti-SLAPP motions will continue to be hard-fought, complex and — in many cases — unpredictable.

[1] I acted as counsel to a group of interveners, including the Centre for Free Expression, in the Pointes Protection appeal.  However, the views in this post are my own.