- On April 21, 2018
By: Cameron Fiske and David Cassin
The current anti-SLAPP legislation in Ontario is a perfect illustration of the maxim that the “road to Hell is paved with good intentions.”1
However, we need not despair. The law as currently drafted need not be entirely repealed. Rather, it simply needs to be revised to work efficiently and effectively. Before turning to suggested anti‑SLAPP reforms, we will discuss the major issues with the current legislation.
In what follows we argue that while there is a need for anti-SLAPP legislation to protect vulnerable defendants from aggressive litigation tactics and fabricated defamation suits, the current legislative scheme is far too one-sided. As currently drafted, the anti-SLAPP legislation essentially pre-supposes that all defamation suits are de facto SLAPP suits. It puts those plaintiffs who have legitimate causes of action in libel or slander at a significant disadvantage.
Such disadvantages include that there is no obligation for a defendant to bring an anti-SLAPP motion to strike a claim in a timely manner. Under the new anti-SLAPP legislation, these motions can be brought at any time. In theory, such a motion could even be advanced in the middle of a trial. The effect of bringing such a motion is to stay the ongoing action, as well as any related tribunal proceedings until after the anti-SLAPP motion is heard.
Once an anti-SLAPP motion is formally brought by the defendant, they are supposed to be heard within approximately 60-days. However, it is common for these motions to be delayed for six-months to a year due to scheduling and any manner of issues. This means any action (or related tribunal proceedings) are held in limbo until such time as the anti-SLAPP motion is heard.
If a plaintiff wins an anti-SLAPP motion and is able to demonstrate that they had a bona fide cause of action in libel or slander, the anti-SLAPP legislation nevertheless creates a presumption against costs.
A plaintiff who has likely had to spend tens of thousands (and in some cases even more) to defend an anti-SLAPP motion is presumptively not entitled to costs.2
Strategically, the presumption against costs puts plaintiffs at a serious disadvantage – defendants can prolong the hearing of a motion and wear plaintiffs down financially with little risk of having to pay costs.
Regardless of the cost implications, plaintiffs have to expend significant resources in responding to anti-SLAPP motions because of the high-stakes at issue if they lose: because if they lose, the overriding action is dismissed, and they are exposed to a presumption of full indemnity costs on the anti-SLAPP motion, as well as a potential damages award.3
Further issues arise with this legislation in that an unsuccessful defendant who has failed to show that the action is a SLAPP suit, has an automatic right of appeal, without the requirement to obtain leave, despite being an interlocutory motion. The appeal lies not to the Divisional Court, but to the Court of Appeal for Ontario.4 On appeal, there still remains a presumption against costs if the plaintiff succeeds in showing that they have a bona fide cause of action in libel or slander.
We propose that the way to remedy this legislation is threefold:
- the entire costs regime for anti-SLAPP legislation should be struck down;
- the automatic right of appeal of an unsuccessful defendant on an interlocutory decision should likewise be struck down; and
- anti-SLAPP motions should be required to be brought in a timely manner.
The anti-SLAPP legislation as it stands could well spell the end to bona fide claims of defamation unless a plaintiff has significant time, energy, and funds to pursue their claim.
As drafted, the anti-SLAPP legislation allow nefarious defendants to use the legislation as a sword when its purpose was to be used as a protective shield. The proposed threefold approach to reform would go a long way to remedying the current issues with the anti-SLAPP legislation.
In what follows, we provide an overview of the history of Ontario’s anti-SLAPP legislation, an in-depth analysis of the test established under the anti-SLAPP legislation, and a case study of a recent anti-SLAPP motion whereby a plaintiff successfully resisted an anti-SLAPP motion.5
I. ANTI-SLAPP LEGISLATION AND THE COURTS OF JUSTICE ACT
“…I was surprised to find this legislation buried in the Courts of Justice Act given the substantive nature of its provisions and the significance of the remedies provided in it. I would have thought that it would be stand-alone legislation or part of the legislation to which it is most applicable, such as the Libel and Slander Act, R.S.O. 1990 C.L. 12. I also found the provision of Section 137.1 of the Courts of Justice Act awkwardly drafted which is also surprising given the drastic effect of its provisions.” Justice Garneau in 1704604 Ontario Ltd. v. Pointes Protection Association et. al.6
The Public of Participation Act, 2015 came into force on November 3, 2015 and amended the Courts of Justice Act to create a new section 137.1.7 The anti-SLAPP legislation applies retroactively to any proceeding commenced after December 1, 2015.
The legislation’s purpose is set out in subsection 137.1(1) (a-d) as follows:
- to encourage individuals to express themselves on matters of public interest;
- to promote broad participation in debates on matters of public interest;
- to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
- to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.8
“Expression” under the anti-SLAPP legislation is broadly defined and includes “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”.9
The Protection of Public Participation Act, 2015 was a result of an expert advisory panel’s recommendations in 2010. Unfortunately, as is discussed in great detail below, there are serious issues that need to be addressed by the legislature in amending the anti-SLAPP legislation.
While courts have done their best to apply the principles of justice, the anti-SLAPP legislation’s overarching issues make it ripe for amendment by the legislature. Further, more appellate-level guidance is necessary to help guide parties considering advancing (or being forced to respond) to an anti-SLAPP motion.10
II. ANTI-SLAPP MOTION: THE TWO-PART TEST
The anti-SLAPP legislation creates a two-part test to dismiss an alleged SLAPP proceeding:
STEP ONE: the moving party must satisfy the judge that the defamation action arises from an expression made by the moving party that relates to a matter of public interest;11
STEP TWO: if the moving party satisfies (i), the onus shifts to the responding party to satisfy that there are grounds to believe that the proceeding has substantial merit, the moving party has no valid defence in the proceeding, and the harm likely to be suffered (or having been suffered) by the responding party as a result of the expression at issue is sufficiently serious to outweigh the public interest in protecting that expression.12
- Does the Impugned Expression Relate to a Matter of Public Interest?
In addressing what amounts to an expression that relates to a matter of public interest, the Supreme Court of Canada in Grant v Torstar Corp.13 held that a comment must relate to the welfare of citizens, or something that has public notoriety or controversy attached to it rather than to a mere personal attack.14
Importantly, where the substance of the matter is a defamatory personal attack thinly veiled as a discussion on matters of public interest, the court has the tools it requires to determine the true nature of the expression.15
(ii) Is there a valid defence?
While there may be any number of potentially valid defences available, most moving parties have attempted to defend their impugned expressions under the following defences: (i) fair comment; (ii) truth; (iii) qualified privilege; (iv) apology; and (v) the repetition defence. We will turn to each in more detail below.
- Fair Comment
The defence of fair comment has been discussed in a number of cases,16 and was most recently defined in Levant where the court held:
 To establish a defence of fair comment, the comment must be on a matter of public interest, based on fact, recognizable as comment, although comment may include inherently debatable inferences of fact, and fairly made, in the sense that a person could honestly make the comment on the proven facts. If the defendant establishes that these elements are present, the defence may still be defeated if the plaintiff establishes that the defendant was actuated by malice: WIC Radio Ltd v Simpson 2008 SCC 40 (CanLII),  2 S.C.R. 420; Thompson v Cohodes, 2017 ONSC 2590 (CanLII).
 Statements of comment are statements of opinion, or inherently subjective and debatable inferences from facts as indicated in WIC Radio, supra. They are distinguishable from defamatory statements of fact, which purport to assert objective truth. If of fact, the words may be found to be a statement of fact: Thompson v Cohodes, supra. Allegations that one has committed or participated in a fraud, is an allegation of fact.
 The defence of fair comment is only available for comment based on facts proven to have been true: WIC Radio, supra. The allegations made by Mr. Day are not stated as comment, but as noted above, are stated as fact, have not been established, and indeed, some have been found and acknowledged by Mr. Day to be untrue. Accordingly, I find that there are reasonable grounds to believe that no defence of fair comment is made out. Accordingly, I find that there is no defence of fair comment made out.17
The defence of truth, sometimes referred to as ‘justification’ is a complete defence to a claim of defamation. That is, one cannot seek to hold another liable for making comments that while defamatory are also true.
It is incumbent on a defendant seeking to rely on the defence of truth to call evidence to establish that the defamatory comments at issue are, in fact, true.
(c) Qualified Privilege
The defence of qualified privilege was adopted into Canadian law in the Supreme Court of Canada’s seminal case, Hill v Church of Scientology Toronto.18 In Hill, the court endorsed the English formulation of the defence, namely: a privileged occasion arises where a defendant has a duty or interest to communicate the information and the recipient has a corresponding duty or interest to receive it. It is the reciprocity that is essential.19
The law has recognized certain categories where such reciprocal relationships generally exist: complaints to police, regulatory bodies, or public authorities, as well as employment references and business and credit reports.20 The extension of qualified privilege in such instances is based on the public interest in encouraging these communications.
However, as set out by the court in Hill, the qualified privilege defence is not limitless. One such exception to the defence of qualified privilege is express malice. In Hill, the court held:
 The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice.
 Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, 1956 CanLII 124 (ON CA),  O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pp. 323‑24, and Netupsky v. Craig, 1972 CanLII 19 (SCC),  S.C.R. 55, at pp. 61‑62.21
Pursuant to the Libel and Slander Act,22 the effect of an apology weighs towards mitigation of damages but does not necessarily amount to a full defence of making defamatory statements. Further, courts will be on alert for defendants who offer disingenuous apologies to further spread their spurious comments.23
(e) The Repetition Defence
Defendants are often under the misunderstanding that by simply repeating comments they heard from another source, that they are free from liability. If the comments repeated are defamatory comments, the repeater is no less liable for defamation than the originator. This is an important warning to heed in the age of internet defamation and rapid trans-border communication.
According to the court in Grant, the so-called ‘repetition defence’ is no such defence to a defamation action. In particular, the court held that someone who repeats a defamatory statement is no less liable than the person who originated it, and the fact that someone else originated such a statement does not give another person a license to repeat it.24
III. THE PUBLIC INTEREST PRONG
The last consideration under the second part of the test set out under section 137.1(4) is whether the harm that has been or is likely to be suffered by the plaintiff as a result of the allegedly defamatory comments is sufficiently serious that the public interest—in permitting the proceeding to continue—outweighs the public interest in protecting that expression.
In order for the plaintiff to meet this onus in a defamation claim, the evidence of damages suffered or likely to be suffered in consequence of the impugned statements must be such that there is “credible and compelling evidence of harm that appears reasonably likely to be proved at trial”.25
IV. THE DAMAGES DILEMMA
Many defendants attempt to stave off defamation claims on the grounds that there are no actual damages and therefore a defamation action should be dismissed.
However, damages cannot be dealt with as summarily as some defendants may wish. Damages are a complex issue under the law of defamation.
General damages in defamation cases are to be assumed from the very publication or spread of false statements and are awarded at large. A plaintiff is not always required to show a loss to obtain an award.26
In Grant, the Supreme Court of Canada concluded that a plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages:
(i) that the impugned words were defamatory, in the sense that they would tend to lower the person’s reputation in the eyes of a reasonable person;
(ii) that the words in fact referred to the person; and
(iii) that the words were communicated to at least one-person other than the person.27
The Court went on to hold that if these elements are established on the balance of probabilities, falsity and damage are presumed.
The Supreme Court held that there is no requirement for the plaintiff to prove that the defendant intended to do harm, or even that the defendant was careless. The tort of defamation is one of strict liability.28
In Mina Mar Group Inc. v. Divine,29 Justice Perell noted that general damages in defamation cases serve three functions:
- to console the plaintiff for the distress suffered in the publication of the defence;
- to repair the harm to the plaintiff’s reputation including, where relevant, business reputation and;
- to vindicate the plaintiff’s reputation.30
With respect to general damages specifically, Justice Perell identified the following six factors to assist the court in determining general damages:
- the plaintiff’s position and standing;
- the nature and seriousness of the defamatory statements;
- the mode in extent of the publication [or spoken word];
- the absence or refusal to retract the defamatory statement or to apologize for;
- the conduct and motive of the defendant; and
- the presence of aggravating or mitigating circumstances.31
A public apology alone does not vitiate damages either even if one is eventually given.32
V. MCCARTHY-OPPEDISANO V MUTER: A CASE STUDY
The Superior Court of Justice recently released a decision in McCarthy-Oppedisano v Muter (“McCarthy”)33 which perfectly illustrates some of the obstacles plaintiffs with legitimate cause of action in defamation face as a result of the anti-SLAPP legislation.
Notably, the facts of McCarthy differ in large respects from the typical scenario before the court in an anti-SLAPP motion. The majority of case law dealing anti-SLAPP motions typically involves comments made about governmental officials or public authorities.34
In McCarthy, the court dealt with a defendant who held a position that was arguably analogous to a politician in her local community who defamed a private citizen.35
The facts of McCarthy are as follows: the plaintiff, Ms. McCarthy-Oppedisano, and defendant are both residents of a small community known as Kingscross community in King City, Ontario. Ms. McCarthy-Oppedisano is a real estate agent and conducts a substantial amount of business in the Kingscross community.36
The defendant has been an active environmental researcher and advocate, volunteering her time with a number of organizations, including the local Kingscross Ratepayers Association (the “KRA”).37
In 2015, Ms. McCarthy-Oppedisano brought an application to sever two of the lots she owned in the Kingscross community into three lots. The defendant, and some others in the Kingscross community were opposed to Ms. McCarthy-Oppedisano’s application to sever.38
In early 2015, pursuant to her role on the KRA, the defendant began polling residents of Kingscross to determine their views concerning Ms. McCarthy-Oppedisano’s severance application. At some unidentified time, various real estate agents, who were Ms. McCarthy-Oppedisano’s competitors and rivals, allegedly informed the defendant that Ms. McCarthy-Oppedisano had three infractions on her real estate license, and that she was involved in blocking bids on home purchases in the area.39
The defendant was later caught on a tape-recording to a third-party stating that Ms. McCarthy-Oppedisano had three infractions on her real estate license, and that she was engaged in blocking bids on real estate deals in the Kingscross community.40
Despite the defendant’s comments on recording, there are no infractions on Ms. McCarthy-Oppedisano’s professional record, nor does she not block bids.41
None of the slanderous words uttered by the defendant were true. As such, Ms. McCarthy-Oppedisano began an action against the defendant for defamation.
At the anti-SLAPP motion, Justice Healey made clear that courts will not permit a member of a voluntary community organization to shelter behind that position in order to make defamatory comments about the reputation of private citizens.42
One cannot embed defamatory comments against another within speech that at times may relate to matters of public interest as protection from a defamation action.
Defamatory comments are defamatory regardless of whether they are “cloaked” in subsequent speech that may touch upon public interest.43 Such words are not public interest speech.
VI. A WORD ON CONTRASTING COSTS
The costs regime set out under the anti-SLAPP legislation is far too one-sided, even where a responding party succeeds in defeating an anti-SLAPP motion.
Under section 137.1(8) of the Courts of Justice Act, a successful responding party to an anti-SLAPP motion faces a presumption against costs. Further – and somewhat unsurprisingly given the language of the legislation – high costs are awarded where the moving party in an anti-SLAPP motion is successful.
In cases where the moving party has been successful in advancing an anti-SLAPP motion, cost awards have been as high as approximately $312,943.44 On the other end of the spectrum, where the respondents are successful on an anti-SLAPP motion, the costs awards have been much lower – generally ranging from approximately $0 to $7,500.45
These disparate costs awards are due in large part to the wholly one-sided nature of the anti-SLAPP legislation, and the presumption against awarding the responding party costs under section 137.1(8) of the Act.
The anti-SLAPP legislation is to be used as a shield and not as a sword.
Given the significant issues that exist under this legislation, as outlined throughout this paper, the current legislative regime is in need of reform. In particular, as we have outlined above, the anti-SLAP legislation can be reformed by striking down the costs regime under the legislation and the automatic right of appeal of an unsuccessful moving party, as well as requiring anti-SLAPP motions be brought in a timely manner, similarly to other interlocutory motions.
While we do not deny there may be a need for a type of anti-SLAPP legislation, the current legislation must be amended. If the anti-SLAPP legislation is left untouched, there is a real risk that bona fide claims of defamation will fall by the wayside. Litigation should never be the ultimate goal, but where an individual’s rights have been infringed, they should not be discouraged from seeking to enforce those rights via legitimate civil remedies.
Cameron Fiske is a partner at Milosevic Fiske LLP. He has successfully defended an anti-SLAPP motion and prosecutes defamation claims while maintaining a commercial litigation practice. David Cassin is an associate at Milosevic Fiske LLP and former associate at a large national firm in Toronto. He has served as co-counsel in defence of a successful anti-SLAPP motion and maintains a general civil litigation practice.
- A “SLAPP” suit is defined as a strategic lawsuit against public participation. Pursuant to the Protection of Public Participation Act, 2015, which amended the Courts of Justice Act, RSO 1990, c C43 adding section 137.1, a summary procedure was created for courts to disallow actions designed to prevent public participation.
- Courts of Justice Act, RSO 1990, c C 43, s 137.1 (8).
- Courts of Justice Act, RSO 1990, c C 43, s 137.1 (7), (8), (9).
- Courts of Justice Act, RSO 1990, c C 43, s 137.4 (5)
- McCarthy-Oppedisano v Muter, 2018 ONSC 2136. In the interests of full disclosure, the authors were counsel to the successful plaintiff in McCarthy-Oppedisano.
- 1704604 Ontario Ltd. v Pointes Protection Association al., 2016 ONSC 2884 at para. 24.
- Section 137.1 will hereinafter be referred to as the “anti-SLAPP legislation”.
- Courts of Justice Act, RSO 1990, c C 43, s 137.1.
- Courts of Justice Act, RSO 1990, c C 43, s 137.1 (2).
- The authors acknowledge that the Court of Appeal has United Soils Management v. Ltd. v. Mohammed and Platnick v. Bent on reserve, amongst others, and decisions are expected soon.
- Courts of Justice Act, RSO 1990, c C 43, s 137.1 (3).
- Courts of Justice Act, RSO 1990, c C 43, s 137.1 (4).
- 2009 SCC 61 [Grant].
- Grant at para 105.
- Levant v Day, 2017 ONSC 5956 at para 23 [Levant].
- See for example: WIC Radio Ltd v Simpson, 2008 SCC 40, and Thompson v Cohodes, 2017 ONSC 2590.
- Levant at paras 35,36, and 42.
-  SCR 1130 [Hill].
- Hill at para 143.
- Cook v Milborne, 2018 ONSC 419 at para 25; D’Addario v Smith, 2015 ONSC 6652 at para 55.
- Hill at paras 144-145.
- RSO 1990, c L 12, ss 9, 20.
- McNairn v Murphy, 2017 ONSC 1678 [McNairn].
- Grant at paras 76, 114.
- Able Translations Ltd v Express International Translations, 2016 ONSC 6785 at para 83; Fortress Real Developments Inc. v Rabidoux, 2017 ONSC 167 at paras 35-37.
- See for example: Awan v. Levant, 2016 ONSC 6890; Bains v 1420546 Ontario Inc., 2011 ONSC 3686.
- Grant at para 28.
- Grant v Torstar Corp., 2009 SCC 61 at para. 28.
- 2011 ONSC 1172 [Divine].
- Divine at para 13.
- Divine at para 11.
- Hill at para 182.
- 2018 ONSC 2136 [McCarthy].
- See for example: McLaughlin v Maynard, 2017 ONSC 6820; Niagara Peninsula ConservationAuthority v Smith, 2017 ONSC 6973; Rizvee v Newman, 2017 ONSC 4024.
- McCarthy at para 32
- McCarthy at para 6
- McCarthy at para 7
- McCarthy at para 12
- McCarthy at para 14
- McCarthy at para 16-17
- McCarthy at para 47
- McCarthy at para 48
- McCarthy at para 48
- See for example: Platnick v Bent, 2017 ONSC 585.
- See for example: Accruent LLC v Mishimagi, 2016 ONSC 6924; Montour v Beacon Publishing Inc. et al, 2017 ONSC 6361; Thompson v Cohodes, 2017 ONSC 2590; and Veneruzzo v Storey, 2017 ONSC 2532.