S.L.A.P.P Lawsuits

Subway v. Canadian Broadcasting Corporation, 2020 ONSC 1263 (CanLII)

[1] This case arises from the February 24, 2017 broadcast of an investigative report on the show Marketplace (the “Marketplace Report”), created, aired, and published online by the Defendant, Canadian Broadcast Corporation and its employees the Defendants, Charlsie Agro, Kathleen Coughlin, Eric Szeto (collectively “CBC”). The subject matter of the Marketplace Report was a comparison of the chicken sandwiches sold by the Plaintiffs (collectively “Subway”) and four other fast food chains in Canada.

[5] Broadly speaking, section 137.1 of the CJA is designed to protect free expression in the face of a libel or similar action aimed at matters of public interest:

The purpose of the statute is to expand the democratic benefits of broad participation in public affairs and to reduce the risk that such participation will be unduly hampered by fear of legal action. It would seek to accomplish these purposes by encouraging the responsible exercise of free expression by members of the public on matters of public interest and by discouraging litigation and related legal conduct that interferes unduly with such expression.

[7] The anti-SLAPP provisions are not meant to create a forum in which to review the entire evidence that one or both of the parties would bring to bear if the merits of the law suit were being adjudicated. As the Court of Appeal put it in 1704604 Ontario Ltd. v Pointes Protection Association, 2018 ONCA 685, para 78, “if…the motion record raises serious questions about the credibility of affiants and the inferences to be drawn from competing primary facts, the motion judge must avoid taking a ‘deep dive’ into the ultimate merits of the claim under the guise of the much more limited merits analysis required by s. 137.1(4)(a).”

[8] The criteria for dismissing an action under that provision are set out in section 137.1(3) and (4) of the CJA. Those subsections create a two-part test: a ‘public interest’ hurdle and a ‘merits’ hurdle. For the first part of the test, the onus is on CBC and Trent as moving parties to establish that the matters covered in the broadcast and online publication in issue raised a matter of public interest. If this threshold is crossed, the onus then shifts to Subway as the party seeking to litigate the alleged defamation to establish that its claim has substantial merit and that the CBC and Trent have no valid defense.

[9] The shifting onus is apparent in the wording and structure of ss. 137.1(3) and (4):

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) 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.