Anti-SLAPP Motions Apply to More Than Just Defamation Cases: SCC

Anti-SLAPP (strategic lawsuits against public participation) rules were initially designed specifically to address cases in which litigation is used as a means to silence critics by framing allegations as defamation. In many instances where anti-SLAPP legislation is engaged, it is a case where a well-funded entity, such as a major corporation, attempts to block criticism by a smaller party, such as an individual. To push back against the use of litigation specifically to intimidate and silence criticism, the Ontario government enacted the  Protection of Public Participation Act in 2015. The Act added a new section to the Courts of Justice Act, s. 137.1, specifically to address anti-SLAPP actions.

Anti-SLAPP Motions: The Burden of Proof

The defendant in an alleged anti-SLAPP action must bring a motion under s. 137.1 of the CJA and demonstrate the action has been brought as a result of an expression relating to the public interest. At this stage, a court is not required to determine the truthfulness or validity of the expression, but simply that it relates to the public interest.

If the defendant is successful in the first step, the burden of proof then shifts to the plaintiff to demonstrate that their action should not be dismissed. This requires the plaintiff to prove two things:

  1. the plaintiff’s underlying action has legal merit, and the defendant has no valid defence; and
  2. the harm that has resulted or could result from the defendant’s expressions and/or the benefit to the public interest in allowing the action to continue outweighs the public interest consequences of dismissing the action.

If the plaintiff can successfully demonstrate both factors, the action will be permitted to continue, but if not, it will be dismissed.

Anti-SLAPP Considerations Applied to Contract Case

Typically, anti-SLAPP motions are brought in civil litigation relating to allegations of defamation. For example, Subway, the fast-food company, brought an action for defamation against the CBC for an investigative report about the contents of Subway’s chicken products. However, a recent decision of the Supreme Court of Canada has allowed an anti-SLAPP motion to proceed with respect to a claim for breach of contract.

In the case at hand, a land developer had submitted a proposal to construct a 91-lot subdivision in Sault Ste Marie, Ontario. A non-profit organization called the Pointes Protection Association (PPA) objected to the proposal on environmental grounds. The developer obtained the approval of the local Conservation Authority, and PPA sought judicial review of the decision. PPA also sought standing in the municipal hearing to grant approval for the project.

While both of the above proceedings were pending, the parties reached a settlement agreement with respect to PPA’s application for judicial review. PPA agreed to withdraw its application, and the agreement specifically also contained wording to limit PPA’s future conduct with respect to the application. In particular, it limited the PPA’s ability to advance its argument that the Conservation Authority’s decision was contrary to the Conservation Authorities Act, or that the Authority had exceeded its jurisdiction in approving the proposal.

At the municipal hearing to decide on approval for the project, the President of the PPA testified that allowing the project to proceed “would result in a loss of wetland area and in environmental damage to the region”. The Ontario Municipal Board eventually dismissed the developer’s application to move ahead with the proposal. The developer then brought a claim for breach of contract against the PPA, claiming the testimony was in breach of the agreement. In response, the PPA brought a motion under s. 137.1 of the CJA, claiming the matter should be dismissed as being anti-SLAPP.

The SCC ultimately found in the PPA’s favour, dismissing the breach of contract action. Firstly, the claim was found to have little merit, because the language in the agreement had been specific. It could not be reasonably said to apply to the PPA’s testimony before the Ontario Municipal Board in that the testimony did not relate to the Conversation Authority’s decision. Secondly, any harm suffered by the developer as  a result of not going forward with the proposal could not compare to the potential harm to the public interest if the PPA’s expression had been limited:

[T]he public interest in protecting Pointes Protection’s expression is significant and falls at the higher end of the spectrum. The public has a strong interest in the subject matter — which relates to the ecological impact and environmental degradation associated with a proposed large‑scale development — and strengthening the integrity of the justice system by encouraging truthful and open testimony is inextricably linked to the freedom of participants to express themselves in the forums concerned without fear of retribution.

The lawyers at Prudent Law in Mississauga are trusted advocates in any type of civil litigation. We provide practical advice and passionate representation in both litigation and alternative dispute resolution options. If you are facing a legal dispute and you’d like to discuss it with one of our experienced litigation lawyers, please call us at 905-361-9789 or contact us online.

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