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Blog May 7, 2024

Anti-SLAPP laws in Ontario: recent trends and lingering uncertainties

In late 2015, Ontario’s Protection of Public Participation Act, 2015 took effect. Commonly referred to as the “anti-SLAPP” regime—a reference to the term “Strategic Lawsuits Against Public Participation” from US jurisdictions—the law quickly changed the litigation landscape in Ontario, particularly in defamation actions.  

Ontario’s anti-SLAPP law provides defendants with a seemingly powerful way of ending an action at its earliest stages by way of an anti-SLAPP motion.  Such motions require a defendant seeking to end a legal action against them to meet the low threshold of showing the lawsuit arose from expression related to a matter of the public interest.  

Once that is done, then the onus shifts to the plaintiff in the original lawsuit who must show that: (a) there are grounds to believe that, (i) the proceeding has substantial merit, and (ii) the defendant has no valid defence in the proceeding (the “merits” stage); and (b) the harm likely to be or that has been suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression (the “public interest weighing” stage). 

If the defendant is successful, they are presumptively entitled to full indemnity costs; unsuccessful defendants are presumptively insulated from paying any costs award.

Almost immediately, a flood of anti-SLAPP motions began to work their way through the courts.  The initial years of the regime were marked by inconsistency and confusion over various aspects of the legal framework. Some degree of clarity flowed from a pair of 2020 decisions from the Supreme Court in Bent and Pointes Protection, which I have previously reviewed here

Yet despite the Supreme Court’s guidance on the fundamentals of how the regime is supposed to work, the anti-SLAPP jurisprudence remains complex and sometimes even contradictory, making it an increasingly high-risk and uncertain litigation step for both plaintiffs and defendants.  To be sure, the anti-SLAPP regime remains an important tool for plaintiffs in the right case—but defining what the “right case” looks like can often be difficult and elusive.

Against this backdrop, this blog post offers a brief look at five important trends in the anti-SLAPP case law since 2020.

1. Plaintiffs must show concrete harm or damages

One thing that became clear from the Supreme Court’s 2020 decisions is that the final stage of the anti-SLAPP test—the so called “public interest weighing” stage—is the central “core” or “crux” of the analysis.  Most cases are now decided at this stage.

Yet until recently, it was unclear to what extent a plaintiff could rely on purely “reputational” harm to satisfy its onus at this stage.  Defamation law does not require a plaintiff to prove specific damages; instead, general damages to reputation are presumed, with their quantum varying depending on different factors (including the nature and extent of publication, stature of plaintiff in society, etc.).  Citing this proposition, many plaintiffs argued that even if they could not show specific or concrete harms flowing from the expression at issue, the presumption of general damages to reputation ought to suffice, especially where the defamatory language was particularly harsh.

That argument—which appeared to be left open in Bent—is no longer available.  In a 2022 anti-SLAPP case called Hansman (which I wrote about here), the Supreme Court was clear that when it comes to the plaintiff discharging their onus at the public interest weighing stage, “[p]resumed general damages are insufficient for this purpose, as are bare assertions of harm” (at para 67).  The Court of Appeal for Ontario recently echoed that view.

A plaintiff’s burden on damages at the anti-SLAPP stage is still tempered by the fact that they need not prove a definitive causal connection between the damage and the impugned publication, or adduce a “fully developed damages brief”.  But in the wake of Hansman, plaintiffs who cannot point to some kind of concrete harm would be well advised to steer clear of anti-SLAPP motions.  Conversely, a focus on (non-existent) damages could provide defendants with a reasonably efficient means of having an action dismissed.

2. “Counter-speech” as a recognized category of expression worth protecting

The Supreme Court’s decision in Hansman recognized “counter-speech” as an important category of expression worthy of protection.  In that case, the plaintiff school board trustee had made negative public comments about the way schools were implementing a program designed to each children about sexual orientation and gender identity.  In response to those comments, the defendant, who was president of the teachers’ union, made highly critical comments about the plaintiff—including that he had “tiptoed quite far into hate speech”, was “creating a school environment… that is discriminatory and hateful” and was “continuing to spread hate about the LGBTQ people”.  

The plaintiff’s action was dismissed on an anti-SLAPP motion. In reaching this result, the Supreme Court leaned heavily on the concept of “counter-speech”—i.e., expression that is a response to controversial, ignorant or harmful expression—when assessing the public interest in protecting the defendant’s expression.  The Court held that counter-speech has “close proximity to the values at the core of s. 2(b)” and, if motivated by the defence of a vulnerable or marginalized group, “also engages the values at the core of s. 15(1)”.

A version of the counter-speech concept had previously been recognized by the Court of Appeal for Ontario. But the Supreme Court’s formal recognition of counter-speech as a category of expression worthy of protection marks an important development in anti-SLAPP jurisprudence and gives defendants an important tool to use in the right case.  Of course, the notion of counter-speech will have its limits—and those lines remain blurry.  To date, at least one appellate decision has gone to considerable lengths to distinguish vitriolic social media exchanges on controversial issues from Hansman, overturning a lower court decision that had employed Hansman-esque reasoning, and sending a clear message that courts will continue to carefully assess “what is really going on” at the public interest weighing stage.

3. Anti-SLAPP motions continue to be complex and costly

Much judicial ink has been spilled cautioning parties and counsel alike that anti-SLAPP motions are designed to be a preliminary “screening mechanism”, rather than a mini-trial or summary judgment motion.  Given the stakes, however, most anti-SLAPP motions invariably devolve into a more detailed examination of merits and causation than one would expect from a “screening” motion.  This has caused serious frustration amongst appellate and lower courts alike.  As the Court of Appeal recently put it: “Despite the Legislature’s intention to create a preliminary hurdle, the process advanced in practice is more like a marathon.”

The reality remains that anti-SLAPP motions are often complex, lengthy and expensive.  Parties take a deep dive into the merits (despite the limited role the merits test is meant to play in the analysis) and devote significant resources to bolstering, or undermining, the case for damages.  Perhaps the best example of this is the ongoing saga in B.C. case of Galloway v. A.B., where the plaintiff sued over a number of statements claiming that he committed sexual and physical assault.  The plaintiff’s action commenced in 2018 and the case still remains at the anti-SLAPP stage (following a recent BCCA decision upholding the motion judge’s decision to let most of the claims proceed to trial, the defendants are now seeking leave to appeal to the Supreme Court of Canada).  

Part of the issue in Galloway — and one that plagues other anti-SLAPP cases as well — is the delay and complications caused by interlocutory battles on evidentiary issues on the road to the anti-SLAPP motion.  In that case, for example, there were serious disputes over document production, which were the subject of separate interlocutory rulings and appeals.  For other types of interlocutory issues, such as motions to strike evidence, delay and costs can be mitigated to some extent by having those motions returnable with the main anti-SLAPP motion itself, which is an approach courts in Ontario have taken.

4. A presumptive ceiling for anti-SLAPP costs?

In an apparent effort to give judicial pronouncements over the limited scope of anti-SLAPP motions some teeth, the Court of Appeal for Ontario recently established a $50,000 “guideline” for full indemnity costs on such motions.  In the same paragraph, the Court recognized that judges retain the discretion to “award less, more or nothing as they see fit in the circumstances of each case”, while also signalling that the guideline is appropriate given that the anti-SLAPP inquiry “will not generally be a difficult one for a motion judge” and the conclusion should typically “be obvious and one readily reached by a motion judge”.

In practice, however, the application of such a “guideline” appears to be uneven, at best.  The Court of Appeal itself subsequently upheld cost awards well in excess of $50,000 for successful moving defendants, including awards in excess of $250,000 on at least two occasions.  Perhaps recognizing the reality that even relatively focused anti-SLAPP motions are expensive, lower courts have similarly continued to make costs awards in excess of $50,000, whether on a partial indemnity or full indemnity basis.  

While it remains early days, the “guideline” appears thus far to have had scant moderating effect on the way anti-SLAPP motions are prosecuted—or the way courts are prepared to indemnify successful moving parties.  That may change as the implications of the guideline are considered by parties apart from those with motions already ‘in the pipeline’ of the court system.  Lower courts may also be more willing to pay heed to the guideline if the Court of Appeal starts granting leave to appeal costs awards and reversing them based on a failure to follow the guideline (or adequately explain a departure from it).  

5. Appeals are generally unwelcome

Both sides of an anti-SLAPP motion enjoy a right of appeal to the Court of Appeal.  Given the stakes, it is not surprising that the deluge of anti-SLAPP motions has resulted in a similar deluge of anti-SLAPP appeals.  

It seems like the Ontario Court of Appeal has finally had enough. In one recent case, the Court of Appeal specifically noted the “proliferation of anti-SLAPP appeals”, reminded parties that anti-SLAPP decisions “will be entitled to deference on appeal absent an error in law or palpable and overriding error” and urged parties to be “mindful of this standard of review when seeking to appeal an order in anti-SLAPP proceedings”.  The Court of Appeal noted that the degree of deference is especially strong when it comes to the public interest weighing stage, which is often the main focal point of the anti-SLAPP analysis.

This signal from the Court of Appeal suggests that success on an anti-SLAPP appeal will usually be an uphill battle.  An error of law is most likely to be associated with the very first stage of the anti-SLAPP analysis—whether the expression relates to a matter of public interest—as that involves a question of law reviewable on a correctness standard.  Finding errors of law in the other anti-SLAPP steps is not impossible, but the playing field there is tilted quite firmly in favour of respondents in most cases.

Final words

As compared to other civil litigation tools, anti-SLAPP motions remain in their relative infancy.  In many ways, these motions have proven successful in clearing the court’s docket of claims that are either devoid of merit and/or are not in the public interest to pursue.  But anti-SLAPP motions are not without their drawbacks. Indeed, since their inception, they have strayed some distance from the simple “screening” mechanisms they were envisioned to be; instead, they are now often complex and costly proceedings that are often more akin to summary judgment motions.  

The law in this area continues to evolve as courts grapple with how to calibrate the legal test and cost incentives in a way that encourages efficiency while recognizing the practical reality that litigants want to put their best foot forward, given the high stakes of these motions.  Ultimately, anti-SLAPP cases rarely lend themselves to easy answers, but at the very least counsel and clients alike need to understand the latest cases and trends, so they can appreciate the key principles and risks before deciding how to proceed.

May 7, 2024
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