Business Law / Litigation

ONCA Clarifies Defendant’s Onus in Anti-SLAPP Motions

When a business is faced with claims that may be false and could potentially harm the business’s reputation, the primary recourse is often to file a claim for defamation against the individuals making the claims. However, sometimes defamation claims are brought in an attempt to silence a person trying to shed light on an important issue, particularly when there is a power imbalance between the claimant and the respondent. After all, a large corporation has significantly more funds and resources enabling it to handle prolonged litigation, as opposed to most individuals. In recent years, the province has attempted to address this issue with the introduction of the Protection of Public Participation Act (the “PPPA”) in 2015. The PPPA amended the Courts of Justice Act (the “Act”), allowing defendants to bring a motion to dismiss a proceeding brought specifically to silence the defendant on a matter of public interest. These motions, called anti-SLAPP (Strategic Lawsuits Against Public Participation) motions, give a defendant a chance to demonstrate that a defamation suit has been brought specifically to curb public discourse.

Judicial Considerations When Deciding Anti-SLAPP Motions

When bringing an anti-SLAPP motion, the defendant must first demonstrate that the defamation suit was brought in respect of the defendant’s expressions on a matter of public interest. Once that has been successfully established, the onus then shifts to the plaintiff to show that the matter fits within the criteria of s. 137.1(4) of the Courts of Justice Act, which states:

A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

    (i) the proceeding has substantial merit, and

    (ii) the moving party has no valid defence in the proceeding; and 

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

The first part of the test, the defendant’s onus to establish that the action relates to expressions on a matter of public interest, has been interpreted differently by various courts. Recently, the Ontario Court of Appeal (ONCA) sought to bring clarity to this first step in the test for an anti-SLAPP motion.

New Case Clarifies Onus on Defendant

In the case at hand, the defendant was a member of the Ontario College of Teachers (the “College”), as well as the College’s Council. The defendant had filed formal complaints about some fellow members of the College and was dissatisfied with how the complaints were handled. In response, the defendant sent communications to members of the College’s Council, the Attorney General of Ontario and the Minister of Education. In some communications, he alleged misconduct on the part of the College and individual members including dishonesty, collusion, bias, harassment, and discrimination.

The College responded by bringing a claim for defamation against the defendant. The defendant then brought an anti-SLAPP motion pursuant to s. 137.1 of the Act, seeking to have the lawsuit dismissed as being against public discourse. The motion judge determined that the defendant’s claims were private grievances against the College and “[were] not matters inviting public attention, affecting the welfare of citizens, or which are the subject of any controversy other than with [the defendant]”.

The ONCA found although the motions judge had viewed the communications objectively as required, she did not apply the test properly. Without consideration of the defendant’s motives or the manner of communication, the expressions could not reasonably be said to relate exclusively to “private grievances”. The ONCA further found that the motions judge incorrectly took the defendant’s motives into consideration in ruling that the public interest element had not been established. While the defendant’s communications could be said to contain personal grievances within them, they also contained matters important to the public and therefore satisfied the defendant’s onus. Rather than moving on to consider whether the College could successfully meet the requirements set out in s. 137.1(4), the motions judge stopped at the first step.

The ONCA was reluctant to decide fully on the matter of the anti-SLAPP motion without proper consideration by a motions judge, and so the Court set aside the previous decision and remitted the motion back to be heard by a different judge.

The Bar to Satisfy the ‘Matter of Public Interest’ Component is not Meant to be High

This case demonstrates that the defendant in a defamation suit does not have a high bar to establish that that case relates to expressions about a matter of public interest. As long as a portion of the defendant’s claims can be said to relate to a public issue, as was the case here in that the complaints related to a public College overseeing teachers, the court should then move on to consider the merits and the public interest in allowing the suit to proceed as set out in s. 137.1(4).

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