Anti-SLAPP

CFE Intervener Factum in the Supreme Court of Canada – This appeal is a significant test of Ontario’s anti-SLAPP legislation, balancing corporate reputation with the right of consumers to share online feedback. Originally the homeowners’ anti-SLAPP motion to dismiss the defamation suit brought by Benchwood Builders (the plaintiff) was granted, but later it was revered by the Ontario Court of Appeal. The crucial “weighing” test under the legislation is that the plaintiff, to avoid having the case dismissed, must show that the harm caused by the expression at issue is “sufficiently serious” to outweigh the public interest in protecting the defendant's expression. The plaintiff must also meet a “merits” test satisfying the court that it was seriously harmed by the expression and that the defendant has “no valid defense.” The merits stage often requires a complex and resource-intensive analysis. The Centre for Free Expression was granted leave to intervene. CFE submits that the motion’s judge can expedite anti-SLAPP cases, once the required public interest test has been met by the defendant in the underlying case, by addressing the “weighing” test first. If it is not found in the plaintiff’s favour, the motions judge can be relieved, or can deal with more cursorily, with the often more complex and resource-intensive merits-based analysis. CFE also submits that corporate plaintiffs alleging defamation must show a link between the impugned expression and pecuniary loss to meet their burden of demonstrative “serious harm.”

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.  

In Prince Edward Island, the legal dispute between a real estate developer and an environmental organization continues to fuel calls for the provincial legislature to enact an anti-SLAPP law.*

Protection of Public Participation Act, 2015 Centre for Free Expression

The Court of Appeal of British Columbia has ruled that author Steven Galloway may pursue his defamation lawsuit against a woman, whom court documents refer to as A.B., and others.

In a recently released decision, the Supreme Court of Canada reaffirmed the important role of anti-SLAPP legislation in protecting those who speak out on matters of public interest and against whom legal action is taken. In particular, the Court made clear that so called “counter-speech” seeking to defend a vulnerable group weighs in favour of protection.