Summaries Sunday: Supreme Advocacy

One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all appeals as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (August 15 – September 11, 2020 inclusive).

Appeals

Civil Procedure: Anti-SLAPP Legislation
1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (38374)

The legislation here presents a two-part analysis: burden on the moving party to show (i) the proceeding arises from an expression made by the moving party (ii) the expression relates to a matter of public interest. A threshold burden, necessary for the moving party to meet to even proceed to s. 137.1(4) for the ultimate determination whether the proceeding be dismissed. For an underlying proceeding to have “substantial merit”, it must have a real prospect of success —while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. In context with “grounds to believe”, this means the motion judge needs to be satisfied there is a basis in the record and the law — taking into account the stage of the proceeding — for drawing such a conclusion. This requires the claim be legally tenable and supported by evidence is reasonably capable of belief. Importantly, this standard is more demanding than the one applicable on a motion to strike, which requires that the claim have some chance of success under the “plain and obvious” test, and also more demanding than requiring that the claim have a reasonable prospect of success, a standard the S.C.C. also used to animate the “plain and obvious” test. And, finally, in determining the ambit of “substantial merit”, the statutory context of s. 137.1 must be borne in mind: even if a lawsuit clears the merits-based hurdle at s. 137.1(4)(a), it remains vulnerable to summary dismissal as a result of the public interest weighing exercise under s. 137.1(4)(b), which provides courts with a robust backstop to protect freedom of expression. Fundamentally, the open-ended nature of s. 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them: s. 137.1(4)(b) effectively allows motion judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. In conclusion, under s. 137.1(4)(b), the burden is on the plaintiff — i.e. the responding party — to show on a balance of probabilities it likely has suffered or will suffer harm, such harm is a result of the expression established under s. 137.1(3), and the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation. This weighing exercise is the crux or core of the s. 137.1 analysis, as it captures the overarching concern of the legislation, as evidenced by the legislative history. It accordingly should be given due importance by the motion judge in assessing a s. 137.1 motion.

Civil Procedure: Anti-SLAPP Legislation; Fresh Evidence
Bent v. Platnick, 2020 SCC 23 (38376)

The appeals herein are dismissed, and accordingly, the s. 137.1 motion, and the respondent’s lawsuit in defamation may continue. While the appellant Maia Bent successfully meets her threshold burden under s. 137.1(3), the respondent Dr. Platnick successfully clears both the merits-based hurdle and the public interest hurdle under s. 137.1(4)(a) and s. 137.1(4)(b), respectively. To avoid any misunderstanding, a s. 137.1 motion is unequivocally not a determinative adjudication of the merits of a claim: Pointes Protection, at paras. 37, 50, 52 and 71. Instead, Dr. Platnick deserves to have his day in court to potentially vindicate his reputation.

For fresh evidence, the Palmer test requires consideration of four factors:

• the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial (this general principle not to be applied as strictly in criminal cases as in civil cases)
• the evidence must be relevant in the sense it bears on a decisive or potentially decisive issue in the trial
• the evidence must be credible in the sense it is reasonably capable of belief
• it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to affect the result.

This does not, however, give parties carte blanche to file motions to adduce fresh evidence. Palmer must be adhered to.

Leaves to Appeal

Torts/Municipal Law: Snow Removal
Nelson (City of) v. Marchi, 2020 BCCA 1 (39108)

Potential municipal liability re snow removal.