Anti-SLAPP Motions at the Supreme Court

Two significant anti-SLAPP cases have been released, in conjunction, by the Supreme Court.

Bent v. Platnick deals with a motion in a defamation action that was initially successful in getting dismissed. The Court of Appeal reversed the decision, and the Court upheld the appeal, specifically on the likelihood of the plaintiff’s success. The case involved the reputation of a doctor on a lawyers’ listserv, which bolstered the interests in having the matter adjudicated on the merits.

The Court in 1704604 Ontario Ltd. v. Pointes Protection Association affirmed the Court of Appeal decision, which has largely become the leading authority in multiple cases on anti-SLAPP motions. The motion decision in Platnick did not have the benefit of the decisions in Pointes, and at the Court of Appeal relied heavily on Pointes when deciding to set the decision aside,

[38] It is important to emphasize that a finding that expression relates to a matter of public interest says nothing about the merits of Dr. Platnick’s claim that the email libelled him. An expression may be defamatory, false, and malicious and still relate to a matter of public interest: Pointes, at para. 55. Similarly, a finding that expression relates to a matter of public interest does not determine the outcome of a s. 137.1 motion. The outcome depends on the analysis required under s. 137.1(4).

…

[110] Without diminishing the public interest in protecting comments made to promote the effective administration of justice, I am satisfied that the potential harm to Dr. Platnick outweighs the public interest in protecting Ms. Bent’s expression. Dr. Platnick’s allegation, if eventually made out, is a very serious one, both in terms of the financial harm caused and the damage to his reputation. For the reasons set out above, he has cleared the “merits” hurdle in s. 137.1(4)(a). The public interest requires that he be allowed to pursue his claim in the normal course.

The Court’s decision in Platnick was split, with the dissent emphasizing that the defendant lawyer had an obligation to keep information strictly confidential, and the members of the listserve were required by the Rules of Professional Conduct by their professional obligations to abide by confidential obligations. While freedom of expression does not confer a license to ruin reputations, any harm from the leaked email was unforeseen and unforeseeable due to the actions of others on the listserve.

The majority reviewed the defendant’s potential defences under the analysis of s. 137.1(4)(a)(ii) of the CJA, the Court rejected the validity of qualified privilege in this case, because any public interest could have been protected without naming the doctor specifically.

In contrast, the decision in Pointes was unanimous. In other words, the Court agrees what the appropriate test is for anti-SLAPP motions, but they disagreed about how it should apply in the context of Platnick. This ensures that Pointes will continue to be the leading authority in this area, and it is unlikely that the very specific facts seen in Platnick will be revisited soon.

The public interest hurdle outlined in s. s. 137.1(4)(b) is truly the heart of the anti-SLAPP legislation. While the court must still engage in the merits-based hurdle, it is really where the plaintiff is able to satisfy the court that the harm from the expression is sufficiently serious enough to outweigh the public interest. Future courts are likely to definite this harm broadly, given the statement by the Court in Pointes,

[68] Harm is principally important in order for the plaintiff to meet its burden under s. 137.1(4)(b). The statutory provision expressly contemplates the harm suffered by the responding party as a result of the moving party’s expression being weighed against the public interest in protecting that expression. As a prerequisite to the weighing exercise, the statutory language therefore requires two showings: (i) the existence of harm and (ii) causation — the harm was suffered as a result of the moving party’s expression.

The Anti-SLAPP Advisory Panel, Report to the Attorney General stated further,

If an action against expression on a matter of public interest is based on a technically valid cause of action but seeks a remedy for only insignificant harm to reputation, business or personal interests, the action’s negative impact on freedom of expression may be clearly disproportionate to any valid purpose the litigation might serve. The value of public participation would make any remedy granted to the plaintiff an unwarranted incursion into the domain of protected expression. In such circumstances, the action may also be properly regarded as seeking an inappropriate expenditure of the public resources of the court system. Where these considerations clearly apply, the court should have the power to dismiss the action on this basis.

What may benefit the plaintiff at this stage is that a fully-developed brief or evidence of harm is not required for an anti-SLAPP motion. Instead, the courts will rely on the pleadings, common sense, and evidence that is available, to draw a causal connection, to evaluate competing interests that include the motivations of the plaintiff in commencing the action and of the defendant in making the statement involved.

A history of using litigation or the threat of litigation to silence critics, financial or power imbalances that favour the plaintiff, punitive or retributory motivations for the claim, or minimal or nominal damages, may all be indicia of a plaintiff bringing an action to silence public participation.

Ultimately, at this trip to the Supreme Court of Canada, the utility and purpose of anti-SLAPP legislation has been upheld, and described as being effective for its intended goals,

[1] 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. This case is about what happens when individuals and organizations use litigation as a tool to quell such expression, which, in turn, quells participation and engagement in matters of public interest…

[2] …SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.

You have to think that in a time of judicial scarcity and a protracted access to justice crisis, the judiciary would have little interest in those who are manipulating the judicial system to promote their own personal interests. This legislation provides them a mechanism to address that type of abuse.