S.L.A.P.P Lawsuits

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

[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.

Levant v. Day, 2019 ONCA 244 (CanLII)

[4] The appellant and the respondent are from opposite ends of the “Twitterverse.” The motion judge described the respondent as “the principle of an online media outlet, Rebel News, which is known as an online media site that comments on political and social issues, espousing right-wing or right-leaning views”: Levant v. Day, 2017 ONSC 5956, 17 C.P.C. (8th) 183, at para. 6.

[5] The motion judge described the appellant as “a regular participant on social media for over a decade” who maintained a blog named “Canadian Cynic”: Levant, at para. 7. He expressed his views almost exclusively on Twitter. The appellant describes his views as liberal, progressive and left-wing.

[8] Sections 137.1(1) - (4) of the Courts of Justice Act provide as follows:

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

[10] The motion judge did not have the benefit of this court’s decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, in which the concept of “public interest” was summarized at para. 65:

In summary, the concept of “public interest” as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3). [Emphasis added.]