In 2015, the Ontario Government amended the Courts of Justice Act and introduced what has become known as Anti-SLAPP legislation. The legislation was aimed at ameliorating the harmful effects of strategic lawsuits instituted against individuals or organizations. SLAPP, which stands for strategic lawsuit against public participation, is a lawsuit that is designed to censor, intimidate and silence critics of some public interest.
The actual aim of the lawsuit is to burden the defendant to such an extent that they decide to remain silent or terminate their opposition. In a typical SLAPP lawsuit, the plaintiff doesn’t expect to win, but he hopes he can wear down the opposition causing them to cease participation in the public interest.
On September 10, 2020, the Supreme Court of Canada in a case called 1704604 Ontario Limited v Pointes Protection Association, had its first opportunity to look at the Ontario Anti-SLAPP legislation. In this case, a land developer sued Pointes Protection Association trying to get it to end its opposition to the proposed subdivision development. In dismissing the appeal, the Court went on to say,
Freedom of expression is a fundamental right and value; the ability to express oneself and engage in the interchange of ideas fosters a pluralistic and healthy democracy by generating fruitful public discourse and corresponding public participation in civil society. Section 137.1 of the CJA was enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy. Applying this framework in this case, Pointes Protection’s. 137.1 motion should be granted and the developer’s underlying breach of contract action dismissed.
The Court went on to say the initial burden lies with the defendant to prove that the Proceeding initiated against them arises from an expression relating to a matter of public interest. If the defendant is successful in proving step one, the burden then moves to the plaintiff to satisfy the judge that,
(a) there are grounds to believe that their underlying proceeding has substantial merit and the defendant has no valid defence, and that (b) the harm likely to be or have been suffered and the corresponding public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If either (a) or (b) is not met, then this will be fatal to the plaintiff discharging its burden and, as a consequence, the underlying proceeding will be dismissed. However, if the plaintiff can show that both are met, then the proceeding will be allowed to continue.
In balancing the right to freedom of expression and the deleterious effects on expression, the Court went on to say,
Fundamentally, s. 137.1(4)(b) allows judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. The burden is on the plaintiff to show on a balance of probabilities that it likely has suffered or will suffer harm, that such harm is a result of the expression established under s. 137.1(3), and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation. The provision expressly requires that one consideration outweigh the other; this is substantively different from simply balancing the considerations against one another.
In dismissing the case, the Court held that the land developer’s action lacked substantial merit, and the developer was unable to demonstrate that the weighing of the public interest favored permitting the case to continue.