SLAPP stands for a Strategic Lawsuit Against Public Participation. A SLAPP is a lawsuit meant to improperly intimidate or censor expression on matters of public importance. It is sometimes referred to as a gag proceeding. Ontario has an anti-SLAPP law intended to encourage expression and debate on matters of public interest, by discouraging meritless lawsuits meant to stifle that expression.
Ontario’s Anti SLAPP law is found in s.137.1 of the Courts of Justice Act, under the heading: Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings).
Example of a SLAPP
How does Ontario’s anti-SLAPP law work? Let’s use a hypothetical case to explain. Imagine a real estate developer and an activist who is opposed to the developer’s plans for their neighbourhood. The activist has expressed their concerns over the planned development in group chats on social media. The developer wants this expression to stop.
What happens when the developer sues the activist for their online comments? Before Ontario’s anti-SLAPP law, the cost of defending a lawsuit might be simply too much for the activist to bear, with the result that the activist removes their criticism – i.e – the developer drops the lawsuit in exchange for the activist’s silence.
Admittedly, this is a simple hypothetical, in which one party has more resources than the other. It should be noted that the protections in Ontario’s anti-SLAPP law apply equally to giant media corporations as they would to an individual blogger. (See for example Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26 (CanLII).)
The ANTI-SLAPP Motion
This silencing-through-litigation of issues of public importance is what Ontario’s anti-SLAPP law aims to prevent. With Ontario’s anti-SLAPP law the activist can ask a judge (bring a motion) to dismiss the lawsuit because the developer’s lawsuit is a gag proceeding meant to stifle expression on a matter of public interest. Once the activist triggers such a motion, the developer may not take any other steps in the lawsuit.
If the judge decides to dismiss the developer’s lawsuit under Ontario’s anti-SLAPP law, the developer will likely be ordered to pay all the reasonable legal fees and expenses of the activists who were sued. This is unusual in Ontario law as rarely do the winners of lawsuits get fully compensated for their legal bills.
The developer may also be ordered to pay the activists damages if the developer brought the proceeding in bad faith or for an improper purpose – as was done in the case of United Soils Management Ltd. v. Barclay. In one case a plaintiff was ordered to pay the defendant $7500 because of the stress the SLAPP caused the defendant (United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450 (CanLII), par. 81)
In short, Ontario’s anti-SLAPP law makes the developer’s SLAPP attempt an expensive and risky endeavour. What’s more, Ontario’s anti-SLAPP law reduces the activist’s exposure to paying the developer’s costs of the anti-SLAPP motion. The general rule that the loser of a motion pays part of the winner’s costs of that motion is not the default rule on an anti-SLAPP motion. Here, if the activists lose the anti-SLAPP motion, they will not usually be required to pay the developer’s legal fees of the motion. This is extraordinary. Ordinarily in Ontario the loser of a motion is made to pay some portion of the legal fees of the winner; not so on an anti-SLAPP motion.
These provisions regarding legal costs are a central mechanism of Ontario’s anti-SLAPP law. In theory, they raise the risks to someone bringing a SLAPP claim, and they lower the risks to someone bringing an anti-SLAPP motion.
Expression on a Matter of Public Interest Requirement
How does an anti-SLAPP motion work? The Court will apply three tests. First the activist must persuade the judge that the developer’s lawsuit arises out of their expression on “a matter of public interest”. What exactly constitutes “a matter of public interest” is subject to interpretation and the particulars of a case. The Supreme Court of Canada has indicated that “public interest” ought to be given a broad interpretation. Having said this, the courts also recognize that not everything that interests the public is necessarily in the public interest.
Next, the developer must satisfy the court that their lawsuit has substantial merit, and the activist’s defence(s) are not valid. While the anti-SLAPP motion is not a full trial of the underlying action, the court is required to look carefully at the merits of the developer’s lawsuit, and the evidence on the motion, having regard to the fact that the lawsuit is still in its early stages. If the lawsuit is without merit, then the lawsuit will be dismissed on this ground alone without further analysis. If the lawsuit has “merit”, the court will move to the next stage of the analysis to examine if it is in the public interest to allow the lawsuit to continue.
Balancing the Public Interest
A court may dismiss a lawsuit, even a lawsuit that has merit, if it is not in the public interest to allow the proceeding to continue. The Court will examine whether the harm suffered by the developer is “sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.” The court will weigh these competing interests. The Supreme Court refers to this part of the analysis as the “crux” of the Anti-SLAPP analysis. In one case, the court dismissed the lawsuit as a SLAPP on this ground alone, without even doing a merits based analysis because the plaintiff was unable to show sufficiently serious harm from the expression at issue.
Ontario’s anti-SLAPP law tries to promote expressions on matters of public interest by creating disincentives to those who would attempt to improperly use the courts to silence expressions in the public interest, and by creating protections for those facing a SLAPP suit.