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Appellate Litigation

When Does a Lawsuit Become a Tool for Limiting Public Debate?

Section 137.1  of the Courts of Justice Act (CJA) grants the ability to bring a motion for the dismissal of any proceeding if that proceeding is aimed at limiting public debate.  This step can be taken at any time after a proceeding is commenced and even prior to filing a statement of defence. The right to do so is designed to prevent what is known as a SLAPP action –  a Strategic Lawsuit Against Public Participation.

In order to be successful with a motion under this section, the defendant must first demonstrate that the action arises from an expression they made that relates to a matter of public interest. This is the threshold requirement. If they can do so the onus of proof then shifts to the plaintiff, who must surmount two hurdles in order to continue with their action. The two obstacles are:

  1. an evaluation of the relative merits of the claim and the defences raised; and
  2. an evaluation of the relative public interest equation.

Purpose of the section

The section operates as a screening device, meant to discourage litigation unduly aimed at limiting expression on matters of public interest. It is not a summary judgment substitute. It is meant to be heard early in the proceeding before all of the evidence necessary for a trail has been marshalled. It is before any pre-trial discovery has taken place. It is a high-level evaluation of the proceeding.

Indicia of a SLAPP Lawsuit

The telltale signs of the action being an attempt to silence or intimidate free public debate are the following:

  1. a history of the plaintiff using litigation, or its threat, to bully and silence their critics;
  2. a financial or power imbalance that leans strongly in favour of the plaintiff;
  3. a punitive or retributory motive behind the plaintiff’s claim; and
  4. minimal or nominal damages being suffered by the plaintiff.

The presence or absence of these factors are considered and weighed by the court in evaluating whether the defamation claim is a valid one and should proceed, or is a SLAPP and should, therefore, be brought to an end.

The Merits

Section 137.1(4)(a)(i) and (ii) requires the plaintiff to satisfy the court that the claim as pleaded has substantial merit and that the defence(s) as pleaded may not reasonably succeed. As it is not a motion for summary judgment, it only requires the plaintiff to demonstrate that success is a possibility, not a certainty. Each defence needs to be reviewed in light of the available evidence through this reasonableness lens.

Balancing the Public Interest

Section 137.1(4)(b) requires the court to assess whether the harm suffered, or to be suffered, by the plaintiff, is sufficiently serious that the public interest in allowing the action to proceed would outweigh the public interest in having the action dismissed.

This must involve the court’s assessment of the damages suffered by the plaintiff. Are they likely to be substantial or small? This would entail an assessment of the general harm or impact on the plaintiff’s reputation as well as the presence of any pecuniary impact. Significant damages supply the motive and displace the fear of a motive of retribution or silence.

As the evidence may be scant at the stage when the motion is introduced, it behooves the plaintiff to consider providing evidence of damage but only where it is not obvious. A serious allegation (such as being labelled a terrorist or a paedophile) most often means a serious damage award.

No Preference is Made

A court does not choose a side or prefer one party’s position over the other. Both sides may have legitimate and important messages to express and do so in public forums. Such debates, however, should be conducted fairly and through responsible discourse. Personal attacks are not needed or warranted.

At Milosevic & Associates, our team of Toronto corporate commercial lawyers regularly represent clients in complex commercial litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims including dealing with claims of oppression. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online for a consultation.