Five years after “anti-SLAPP” legislation in Ontario, Canada (the “anti-SLAPP law”) was enacted, the Supreme Court of Canada (“SCC”) has weighed in to provide much-needed guidance in an area hampered by uncertainty. The anti-SLAPP law is aimed at discouraging claims that unduly limit expression on matters of public interest and reducing “libel chill”. It provides a route for defendants to seek to have claims involving such expression dismissed at an early stage.
The SCC’s decision in 1704604 Ontario Ltd. v. Pointes Protection Association (“Pointes”) provides a detailed review of the language and the purpose of the law and how it ought to be applied – at least in theory. However, in the companion case of Bent v. Platnick (“Platnick”), the Court split sharply (5:4) on whether the specific action should be dismissed, making it clear that there remains significant room for judicial discretion. In addition, the majority’s analysis (and rejection of) the defence of qualified privilege in Platnick raises questions about the utility of that defence going forward.
Canadian courts have sometimes struggled to strike the “right” balance between the constitutionally protected right to freedom of expression and an individual’s right to reputation. To that end, Ontario’s anti-SLAPP law was heralded by free expression advocates as a welcome addition to the legal arsenal, particularly in the area of defamation (Two other Canadian provinces have similar anti-SLAPP legislation: Quebec – a civil law jurisdiction – has had anti-SLAPP legislation in place since 2009. In 2019, British Columbia followed Ontario’s lead, enacting very similar legislation).
Specifically, given the ease with which plaintiffs can “prove” defamation (a reverse onus tort in Canada), and the fact that cases often turn on defences, it has historically been difficult to have even the most frivolous defamation actions dismissed at an early stage. “SLAPP suits”, described as plaintiffs with deep pockets using litigation to silence less powerful and well-funded critics, have been an area of concern in many jurisdictions.
Ontario’s anti-SLAPP law, found in ss. 137.1-137.5 of the Courts of Justice Act, allows a defendant to move at any stage in a proceeding to have the claim dismissed. So long as the defendant can show that the lawsuit arises from expression (which is defined broadly) “that relates to a matter of public interest” (which is also 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”). While such motions most often arise in the context of defamation actions, the anti-SLAPP law can apply to a range of proceedings.
Pointes arose from a breach of contract action by a developer against the defendant association (“PPA”) after the president of the PPA testified in an Ontario land planning tribunal proceeding initiated by the developer. The developer sued the PPA for breach of contract on the basis that this violated a prior settlement agreement between the parties.
In Platnick, a doctor was engaged through an insurance company to review other medical specialists’ assessments of individuals injured in motor vehicle accidents and to prepare a final report with an ultimate assessment of impairment. Bent, a personal injury lawyer and president-elect of the Ontario Trial Lawyers Association (“OTLA”), discovered what she believed were apparent discrepancies between Platnick’s reports and those of the doctors whose findings he was meant to review. She sent an email to the OTLA member ListServ, comprised of legal professionals representing individuals injured in motor vehicle accidents, asserting that Platnick had “altered” doctors’ reports and “changed” a doctor’s decision as to a victim’s level of impairment, and urging her colleagues to always obtain the underlying files. The email was leaked and subsequently published in a magazine. Platnick sued in defamation for $16.3 million.
Both the PPA and Bent brought anti-SLAPP motions, seeking to have the claims against them dismissed.
Pointes: SCC Unanimous on the Anti-SLAPP Framework
In Pointes, a unanimous Court provided guidance on the anti-SLAPP test and its application. The Court’s reasons emphasize the importance of the purpose of the legislation, followed by a close parsing of the text of the provisions with that purpose in mind.
With respect to the Merits-Based Hurdle, there had been debate at the lower courts about the evidentiary standard on the plaintiff/moving party to demonstrate “grounds to believe” the proceeding had “substantial merit” and that there was “no valid defence”. The Court clarified that the standard is more demanding than showing that the claim has “some chance of success or a reasonable prospect of success”, but less stringent than a “likely to succeed” or strong prima face case threshold. The Court held that to have “substantial merit” the proceeding must “have a real prospect of success…that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff.” The claim must be legally tenable and supported by evidence that is reasonably capable of belief, and this must be the case on a subjective determination by the motion judge.
This standard also applies to the corollary burden of showing there is no valid defence. Once the defendant has put defences into play, the plaintiff must satisfy the court that the defences are not legally tenable or supported by evidence that is reasonably capable of belief, and therefore have no real prospect of success. If the plaintiff fails to discharge this burden with respect to any one of the defences raised, the underlying claim should be dismissed.
On the issue of evidence to be adduced at the Merits-Based Hurdle, the Court noted that anti-SLAPP motions are generally brought at an early stage in a proceeding such that a motion judge should engage in only limited weighing of the evidence. Ultimate assessments of credibility and questions requiring a “deep dive” into the evidence should be deferred to a later stage. The bar should not be “set too high” at the Merits-Based stage, given that the Public Interest Balancing Test will serve as a “robust backstop” for motion judges to dismiss technically meritorious claims if the public interest in allowing the proceeding to continue does not outweigh the public interest in protecting the expression in issue.
The Court emphasized that this Public Interest Balancing Test is the “crux” or “heart” of the analysis. It is here that the court can “scrutinize what is really going on in a particular case”, and effectively assess whether a lawsuit should be allowed to proceed to trial. The burden is on the plaintiff to show on a balance of probabilities that it “likely has suffered or will suffer harm” resulting from the expression at issue, and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation.
At this stage, the quality and motivation behind the expression are relevant, and may be assessed with regard to the core values underlying freedom of expression. The Court listed several factors that may be relevant to the weighing exercise, including “the potential chilling effect on future expression”, and emphasized that any factors considered here must be tied back to the text of the Public Interest Balancing Test.
Applying this framework, the Court dismissed the developer’s action, finding that the underlying breach of contract action did not have substantial merit. At the Public Interest Balancing Test, the harm and public interest in allowing the proceeding to continue were at the very low end of the spectrum, and did not outweigh the strong public interest in protecting the PPA’s expression on environmental matters and encouraging truthful testimony.
Platnick: Divided on Application, Defences
While the Court was unanimous in its interpretation of the anti-SLAPP law framework in Pointes, the conflicting decisions of the majority and dissent in Platnick illustrate how the application of the framework may continue to raise issues and divide decision-makers. Among other things, the Court disagreed on whether the plaintiff had met his burden of demonstrating that there were grounds to believe the defendant had no valid defence.
The majority opinion found in favour of Platnick, concluding that his defamation claim ought to proceed to trial. In doing so, the majority in Platnick thoroughly considered the evidentiary basis for Bent’s defences of justification (or truth) and qualified privilege. While the majority made relatively short work of Bent’s defence of justification, finding that it had no real prospect of success, it provided lengthy reasons for its conclusion that there were “grounds to believe” Bent had no valid defence of qualified privilege (though emphasizing this was for the purposes of the motion only, and not determinative of a result at trial).
Qualified privilege protects statements made on occasions where an individual has an interest or duty to publish the information at issue, and the recipients have a corresponding interest or duty to receive it. The privilege applies to the “occasion” – not the publisher or the content. A plaintiff can defeat this defence by showing that malice (which can include reckless disregard for the truth) was the dominant motive of publication, or that the publication exceeded the scope of the occasion, including by communicating information that is irrelevant or not reasonably appropriate to the duty or interest giving rise to the privilege.
Bent argued she had a duty as a lawyer and president-elect of OTLA to flag the expert witness issues she believed were raised by Platnick’s reports to her colleagues, who had an interest in receiving this information. The majority, however, concluded that any occasion of privilege had been exceeded because, among other things, it was not necessary for Bent to name Dr. Platnick if her goal was to alert OTLA colleagues to these issues. The majority held that the defamatory language was “‘neither necessary nor appropriate’ to the duty or interest giving rise to the privilege.” Additionally, the majority found that because Bent’s email arguably violated the ListServ agreement which precluded making defamatory comments, she could not rely on its confidentiality provisions to support the scope of the privilege. The majority also appeared to accept evidence on the motion that supported the falsity of the statements.
At the Public Interest Balancing Test, the majority accepted Platnick’s evidence of harm to his reputation, citing evidence he had been “blacklisted” and his business significantly affected. The majority also held that the “personal attack” by Bent lowered the quality of her expression such that the balance of harms favoured the plaintiff. Its reasons focused generally on the importance of reputation, concluding that, “rather than disincentivizing people from speaking out against unfair and biased practices, [permitting Platnick’s lawsuit to continue] will incentivize them to act with reasonable due diligence [including by first substantiating, or attempting to substantiate, the veracity of their allegations] and to tailor their expression so as to avoid needlessly defaming an individual who depends on their reputation for their livelihood.”
The dissenting judges would have dismissed Platnick’s lawsuit on the basis that there were grounds to believe that Bent had a valid defence of qualified privilege. They emphasized that the email was sent to a ListServ under a confidentiality agreement, and that Bent had a “clear duty to inform OTLA members” about the expert report issues in her email.
The dissent noted that “[g]eneric accounts of misconduct, which do not refer to specific persons (and are therefore not defamatory in the first place) do not require the protection of qualified privilege. The defence is, necessarily, engaged only when someone is identified. It is precisely in these circumstances that the shield of qualified privilege is most important…”
At the Public Interest Balancing Test, the dissent would have found that the interest in protecting expression on matters of public interest outweighed the harm to individual reputation, holding that, to give “meaningful effect” to the “powerful vision” of the anti-SLAPP law, “vindication of reputation – a value engaged in all defamation cases – cannot be allowed to overwhelm the analysis and goals mandated by the statute.” Here, the dissenting justices raised specific concerns that allowing a $16.3 million defamation action to proceed in these circumstances would deter other lawyers and professionals who believe they have seen or experienced misconduct from speaking out, even on a confidential basis.
Taken together, Pointes and Platnick provide important guidance for Canadian courts and litigants in the context of defamation claims (which have been increasingly met with anti-SLAPP motions) and other claims arising from expression. However, the strong divide between the majority and dissent in Platnick cannot be ignored. At a practical level, it demonstrates that there remains significant room for judicial discretion on the application of the framework, highlighting some continuing unpredictability for litigants. More fundamentally, however, the majority and dissenting opinions may reflect a deeper disagreement as to the appropriate balance to be struck between protection of reputation and freedom of expression, and how to approach concerns of “libel chill.
Finally, defamation lawyers in Canada will be watching closely to see how the majority’s interpretation of the test for qualified privilege, requiring that defendants show that the information in issue is necessary, rather than reasonably appropriate or relevant, to the occasion, plays out in subsequent cases.
Iris Fischer is a partner, Kaley Pulfer is counsel, and Justin Manoryk an associated at Blake, Cassels & Graydon LLP, Canada
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