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Anti-SLAPP Litigation: Ontario Court of Appeal Applies Recent SCC Decisions

Anti-SLAPP Litigation: Ontario Court of Appeal Applies Recent SCC Decisions
February 1, 2021

Four months after the Supreme Court of Canada (SCC) ruled on the test for Ontario’s anti-SLAPP legislation, the Ontario Court of Appeal (OCA) has released two companion decisions overturning a motion judge’s pre-SCC rulings, and shedding light on how the SCC’s guidance in 1704604 Ontario Ltd. v. Pointes Protection Association (Pointes) and Platnick v. Bent (Bent) has refined the anti-SLAPP analysis.

THE LEGISLATION

Sections 137.1-137.5 of the Courts of Justice Act, dubbed Ontario’s “anti-SLAPP” legislation because they are aimed at “Strategic Lawsuits Against Public Participation”, allow a defendant to move at any stage in a proceeding to have the claim dismissed. If the defendant can show that the lawsuit arises from “expression” that relates to “a matter of public interest” (both defined broadly), the burden shifts to the plaintiff to demonstrate grounds to believe that: (1) the action has “substantial merit;” (2) there is “no valid defence to the proceeding” (together, Merit-Based Hurdle); and that (3) the harm caused by the expression is “sufficiently serious” that the public interest in continuing with the action outweighs the public interest in protecting the expression (Public Interest Balancing Test). If the plaintiff fails to discharge this burden, its claim must be dismissed.

THE BACKGROUND

A 2017 episode of CBC’s Marketplace reported that Subway’s chicken products could contain just 50 per cent chicken DNA and the rest soy, based on testing conducted by Trent University. The reporting was also published on CBC’s website and on Twitter. A CBC follow-up article a week later referred to Subway’s test results indicating its chicken contains only 1 per cent soy, and noted DNA testing is “nuanced”.

Subway sued CBC and Trent in defamation, and sued Trent for negligence in its testing, seeking C$210-million in damages for loss of reputation, loss of sales, and damage to Subway’s trademarks. Invoking Ontario’s anti-SLAPP law, CBC moved for early dismissal of Subway’s action in defamation, and Trent moved to dismiss Subway’s action in negligence.

CBC’S MOTION

The motion judge held that CBC met the initial threshold as the claim clearly arose from expression related to a matter of public interest. Moving to the Merit-Based Hurdle, while Subway’s claim had a real prospect of success, he held that Subway had not established grounds to believe that CBC had no valid defence of responsible communication on a matter of public interest. This defence requires that reasonable diligence be exercised in trying to verify the allegations on a matter of public interest, and provides a defence in those circumstances even if the allegations cannot ultimately be proven true. Finding that CBC “made significant efforts to inquire into the veracity of the tests they were reporting”, the motion judge held that a reasonable trier “could not reasonably conclude…that CBC’s defence of responsible communication would not succeed.”

At the Public Interest Balancing Test, the motion judge held that CBC’s reporting was consistent with the purposes of the anti-SLAPP law (to encourage and promote expression and participation in matters of public interest). After noting apparent conflicts within Subway’s evidence as to damages, he held that the public interest in the expression outweighed the potential impact on Subway.

SUBWAY’S APPEAL

The OCA held that the motion judge had applied too high a standard to the question of whether there were grounds to believe that CBC had a valid defence. Following the SCC’s lead in Pointes and Bent, a plaintiff need only demonstrate that “there is a basis in the record and the law – taking into account the stage of the proceedings – to support a finding that the defences…do not tend to weigh more in [the defendant’s] favour”. In other words, for the purposes of an anti-SLAPP motion, a defence that “could go either way” should proceed to trial.

In considering CBC’s responsible communication defence, the OCA did not make a decision on the merits. Rather, in deciding that the matter should proceed to trial, the Court considered factors such as the high degree of due diligence required given the seriousness of the allegations and the existence of Subway’s expert opinion evidence of flaws in the original testing. The Court concluded that there was a basis in the record to support a finding, at this stage of the proceeding, that the defence did not tend to weigh more in CBC’s favour.

At the Public Interest Balancing Test, the OCA held the motion judge had erred in law in assessing Subway’s damages claim, “as though he were the trial judge”, and had failed to appreciate the likelihood that Subway suffered significant reputational and financial harm. The OCA also considered the absence of indicia of a SLAPP suit, citing “no evidence of ulterior motive, abuse of power or other improper purpose”. Public interest favoured allowing Subway’s claim to proceed.

TRENT’S MOTION AND APPEAL

The motion judge had held that Trent’s motion failed the initial threshold, as Subway’s negligence claim did not arise from expression. He noted that the anti-SLAPP law is “focused on freedom of expression” and was “designed to address expressive torts, not wrongdoing at large.”
The OCA disagreed, finding that the motion judge had erred in limiting the anti-SLAPP law to a category of “expressive torts”. Rather, expression must only be “somehow causally related to the proceeding”. Here, the Court said, the motion judge failed to appreciate that the expression of the test results was central to Subway’s negligence claim.

However, under the Merit-Based Hurdle, the OCA held that Trent did not owe Subway a duty of care. Accordingly, Subway’s claim lacked a real prospect of success, was not legally tenable, and was dismissed.

IMPLICATIONS

These decisions represent an early appellate court interpretation of the SCC decisions in Pointes and Bent. Among other things, they highlight the inherent tensions between the limited weighing of evidence permitted on an anti-SLAPP motion and the need to consider multiple, evidence-based factors in assessing certain defamation defences. The recently dismissed defamation lawsuit by former interim Commissioner of the Ontario Provincial Police Brad Blair against Premier Doug Ford, following a successful anti-SLAPP motion by Premier Ford, will be one to keep an eye on at the Court of Appeal.

For further information, please contact:

Iris Fischer                  416-863-2408
Kaley Pulfer                416-863-2756
Justin Manoryk            416-863-2390

or any other member of our Media & Defamation group.