We have previously written about “anti-SLAPP” motions brought in the context of defamation claims. “SLAPP” is an acronym for Strategic Lawsuit Against Public Participation. An “anti-SLAPP” motion is a court application brought to seek the dismissal of a claim for defamation on the basis that it constitutes such a strategic lawsuit. Generally, the argument underlying an “anti-SLAPP” motion is that the strategic defamation suit in question violates the public interest in freedom of expression and should therefore be dismissed.
This blog dives into a recent Ontario Court of Appeal decision that unravels the complexities of “anti-SLAPP” motions. We explore how this ruling clarifies the crucial line between personal grievances aired online and matters that genuinely serve the public interest, revealing what it means for your right to share your experiences and the right of others to safeguard their reputations.
The Legal Framework: Understanding Section 137.1 of the Courts of Justice Act
Anti-SLAPP motions are brought under section 137.1 of the Courts of Justice Act. Broadly speaking, the section requires several things.
First, the applicant bringing the motion (usually the person sued for defamation) must satisfy a judge that the defamation proceeding “arises from an expression made” that “relates to a matter of public interest.”
If this threshold is met, then the onus shifts to the party that brought the defamation suit. To prevent their defamation claim from being dismissed, this party must satisfy the judge of two things: (a) that there are grounds to believe that the defamation claim “has substantial merit” and that the applicant (the person sued for defamation) has “no valid defence” to the defamation claim; and (b) the harm likely suffered by the allegedly defamed party as a result of the expression is “sufficiently serious” that the public interest in permitting the defamation claim to continue outweighs the public interest in protecting the applicant’s expression.
Clarity from the Court: Interpreting the Often-Confusing Section 137.1
Recently, the Court of Appeal provided clarity on section 137.1 in Benchwood Builders, Inc. v. Prescott. The Court began its decision by describing the section as “poorly drafted and confusing” and being in “desperate need of a makeover, if not repeal and replacement.” The language used in the section is “obtuse” and “difficult to follow.” For these reasons, the Court returned to first principles in determining how to apply the section in the context of a defamation claim that arose out of a private dispute.
Case Involved Social Media Posts By Former Clients of a Contractor
The plaintiff company in Benchwood Builders and one of its owners brought a defamation lawsuit against the defendants in relation to comments they posted online on social media. The defendants had contracted with the plaintiff company to carry out renovations on their home in Niagara-on-the-Lake. Eventually, the relationship broke down; however, the plaintiff company posted photos of the defendants’ home online “in order to attract new customers.” The defendants then posted various statements that the plaintiffs alleged were defamatory. Among other things, one of the defendants posted that the plaintiffs “misrepresent themselves to the consumer” and that the plaintiff owner and his subcontractors “operate in a dishonest manner” and did a “shoddy job.” The other defendant wrote that the plaintiff owner was “a miserable con artist” and a “dirtbag.”
The plaintiffs sued the defendants for defamation. The defendants, in turn, filed an anti-SLAPP motion seeking to dismiss the defamation action.
The motion judge dismissed the plaintiffs’ defamation action. In applying the test under section 137.1 of the Courts of Justice Act, the judge found that the comments made by the defendants had “related to a matter of public interest.” Further, the judge found that, while the defamation action had “substantial merit,” they were unable to find that the defendants’ defence of justification had “no real prospect of success.” Accordingly, the motion judge determined that the company’s claim had to be dismissed.
The Court of Appeal rejected each of the motion judge’s findings and, in doing so, provided helpful commentary for future anti-SLAPP motions.
Court Discusses the Text, Context, and Purpose of Section 137.1
The Court of Appeal noted that section 137.1 does not define “public interest,” which is left to the courts to interpret. According to the Court, the purpose of the section is “to stop a plaintiff from silencing a defendant by pursuing meritless litigation that served to intimidate and undermine public expression” (see also Park Lawn Corporation v. Kahu Capital Partners Ltd.). Free speech is constitutionally protected, but is not unlimited. Defamation law is generally an exception to it. Anti-SLAPP motions revolve around the tension between protecting the reputation of parties and free speech.
When Will a Private Dispute Involve a “Matter of Public Interest”?
The Court observed that, on an anti-SLAPP motion, the applicant must establish that (i) they “expressed themselves”; (ii) their expression relates to “a matter of public interest”; and (iii) the defamation action in question “arises from their expression.” A primary issue before the Court was whether the expression at issue in the case was “a matter of public interest.”
The Court noted that online reviews “are not automatically matters of public interest.” Purely private disputes “between more or less equals” and which “have no immediate bearing on the rights or obligations of others” rarely meet this requirement. The Court noted that the private dispute before it did not “engage some broader societal concern” or fall within the types of expression that were intended to be caught by section 137.1. Accordingly, the applicants failed to meet this initial threshold.
What is the Proper Approach to the Ground of “No Valid Defence”?
The Court noted the difficulty in interpreting the second requirement of the anti-SLAPP motion test. It was observed that the requirement had been applied previously by courts in different ways. Some judges had interpreted the requirement as meaning that the defamation claim must be dismissed if the allegedly defamed party cannot show that it has an “open and shut case against the defamer.” This is incorrect. Instead, if it is not “immediately clear” that the allegedly defaming party has “no valid defence,” then a court should move on to the last element of the test, since it is the “fundamental crux” of the analysis.
How Should a Court Conduct the Weighing Exercise Required by the Test?
As the Court pointed out in Benchwood Builders, the focus on the last element of the test is “what is really going on in the case.” It noted that a court must assess “the quality of the expression, including the motivation behind it, the medium through which it was expressed, and its subject matter.” The Court observed that “the closer an expression is to any of the fundamental values of s. 2(b) of the Charter – freedom of thought, belief, opinion and expression – the greater the public interest will be in protecting it.”
As a guide, the Court noted a variety of things that factor into the court’s determination at this stage, namely:
- There is less public interest in protecting “personal attacks and defamatory statements.”
- Less protection should be given to statements that are “exaggerated or inaccurate, or contain deliberate misrepresentations.”
- Less protection is likely also appropriate for expressions that are made “for the purpose of interfering with another’s ability to express their views.”
- The motivation of the expressions may be relevant, and
- Consideration should be given to the presence of “classic SLAPP indicia” such as the plaintiff’s history of using litigation or its threat to “silence critics;” a “financial or power imbalance” that favours the plaintiff; whether the defamation claim has a “punitive or retributory purpose” and whether the plaintiff in the defamation claim has suffered “minimal or nominal damages.”
Ultimately, in Benchwood Builders, the Court of Appeal concluded that the allegedly defamatory postings did not relate to a matter of public interest. The case involved little in the way of “classic SLAPP indicia.” Further, at least some of the statements on the issue appeared to be “particulars of malice.” In light of this, “the tension between reputation and free speech that is endemic to anti-SLAPP motions” was deemed by the Court to weigh in favour of reputation in this particular case. The appeal was allowed, and the defamation action was permitted to continue.
Milosevic & Associates: Highly Experienced Toronto Defamation Lawyers
Navigating the complexities of defamation law and anti-SLAPP motions can be daunting. At Milosevic & Associates in Toronto, our experienced legal team understands the intricacies of these issues and is dedicated to providing you with effective and strategic advice. We offer practical representation designed to safeguard your reputation and rights. Don’t leave your defence to chance – contact us today for a confidential consultation online or by calling (416) 916-1387.