Anti-SLAPP motions in Ontario are governed by the s.137 of Courts of Justice Act, RSO 1990 (“CJA”) and, in British Columbia by the Protection of Public Participation Act, SBC 2019, c 3 (“PPPA”).
The report shows that 56% of anti-SLAPP motions decided in 2023 were successful, thus resulting in the dismissal of the underlying action.
- In 84% of cases the applicant was able to establish that the expression was related to a matter of public interest. As such, most anti-SLAPP motions proceeded to the portion of the test where the onus is on the respondent.
- The first hurdle for the responding party is to persuade the judge that there are “grounds to believe that the claim has substantial merit” (CJA at s 137.1(4)(a)(i); PPPA at s 4(2)(a)(i)) Overall, responding parties were able to show grounds to believe that their claim had substantial merit in 66% of cases.
- The second hurdle for the responding party is to persuade the court that there are “grounds to believe that there are no valid defences” (CJA at s 137.1(4)(a)(ii); PPPA at s 4(2)(a)(ii)). Responding parties succeeded on this branch of the test in just over half of the cases.
- The final onus on the responding party is to show that the harm they have “suffered as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in the expression” (CJA at s 137.1(4)(b); PPPA at s 4(2)(b)). In a slight majority of cases (57%) courts found that the interest in expression outweighed the interest in litigation.
Anti-SLAPP legislation in Ontario and BC each has a costs regime that strongly favours the moving party. If the moving party is successful, the presumption is that they will be awarded “full indemnity” costs. In contrast, where the responding party is successful, the presumption is that they will be awarded no costs. In 2023, courts usually followed the statutory presumption regardless of the result in the anti-SLAPP motion.
The most frequent cost awards for successful moving parties were in the range of $100,000 to $200,000, evidencing that in 2023 anti-SLAPP motions continue to be motions of substance.
The report makes a number of other interesting points
- Only 44% of anti-SLAPP motions brought in 2023 involved claims brought by corporate plaintiffs.
- It was a good year for traditional media. All five anti-SLAPP motions brought by traditional media resulted in the action being dismissed.
- Although motions are generally not heard within sixty days, as the Ontario legislation ambitiously contemplates, they are generally heard in less than a year.
The report can obtaining by subscribing at this link.