Anti-SLAPP Motions: No Longer Aimed at Protecting David From Goliath?

September 28, 2020

On September 10, 2020, the Supreme Court of Canada released its highly-anticipated decisions in two cases considering the “Anti-SLAPP” legislation: 1704604 Ontario Ltd. v Pointes Protection Association (“Pointes Protection”) and Bent v Platnick (“Bent”).

In Pointes Protection, the plaintiff land developer sued for an alleged breach of a settlement agreement by a not-for-profit corporation that opposed the proposed development primarily on environmental grounds. In Bent, the plaintiff doctor sued for defamation after the defendant, who at the time was the president-elect of an association of lawyers who represent victims of motor vehicle accidents, emailed the association’s confidential listserv warning them of alleged misconduct by the doctor in providing medical assessments. The defendants in both cases moved to have the lawsuits dismissed under Ontario’s Anti-SLAPP legislation. The Supreme Court upheld the dismissal of the plaintiff land developer’s action in Pointes Protection. Conversely, the Court allowed the plaintiff’s defamation suit to continue in Bent.

There are undoubtedly many potential takeaways from these seminal decisions. In this article, we explore the Supreme Court’s interpretation of the Anti-SLAPP legislation, which at the heart of its analysis requires a weighing of the public interest in protecting a party’s legitimate claim against the public interest in protecting freedom of expression. Further, we examine the ways in which the Supreme Court’s interpretation may have opened the door for broader application of Anti-SLAPP legislation over disputes we may not have previously considered appropriate for these types of motions. But first things first…

What’s a SLAPP Suit? SLAPP stands for “Strategic Lawsuit Against Public Participation” and generally refers to lawsuits, or threats of lawsuits, intended to silence expression speaking out on matters of public interest (as opposed to advancing a legitimate claim of harm). When we think of a SLAPP suit, we often conjure up an image of the proverbial “Goliath” (e.g. a sophisticated and wealthy corporation) suing a “David” with limited financial resources in an effort to silence legitimate criticisms of its conduct.

To help protect against SLAPP suits, Ontario (and two other provinces) enacted legislation enabling defendants to a SLAPP suit to obtain an early dismissal of the lawsuit[i] if:

The expression at issue relates to a matter of public interest (the “Threshold Requirements”);

There are no grounds to believe that the underlying proceeding has “substantial merit” and the defendant has “no valid defence” (the “Merits Hurdle”); and

The harm that the plaintiff has suffered or is likely to suffer as a result of the defendant’s expression is not “sufficiently serious” to outweigh the public interest in protecting the expression (the “Public Interest Hurdle”).

Importantly, while earlier court decisions that assessed the Anti-SLAPP legislation had largely been limited to defamation claims, the Supreme Court has now confirmed that Anti-SLAPP motions can be brought in other types of lawsuits as well, such as breach of contract cases (as was the case in Pointes Protection).

In Pointes Protection, the expression at issue was testimony in a public proceeding focused on the environmental impact of a proposed development, which was held by all levels of court to be in the public interest. One could imagine how expressions by whistleblowers or #MeToo survivors may be protected as expressions of public interest against SLAPP suits purporting to rely upon confidentiality or non-disparagement provisions in an employment or commercial agreement between the parties. Similarly, it would arguably be a matter of public interest to protect statements made by professionals (such as lawyers or financial advisors), whose impugned expression arose from fulfilling their fiduciary obligations to clients or complying with legal/regulatory requirements in the performance of their jobs.

What is “sufficiently serious” harm? The answer to this question is hardly a satisfying one: it depends on the case. That said, the Supreme Court’s Pointes Protection and Bent decisions offer some insight.

Nature of Harm: The Supreme Court agreed with the Court of Appeal’s decisions that either monetary or non-monetary harm (e.g. reputational harm or harm to privacy interests) can be relevant to this analysis. However, although the Court of Appeal for Ontario had directed that the plaintiff’s harm would be measured primarily by monetary damages, the Supreme Court directed that neither type of harm is more important than the other. Because general damages are presumed in a defamation action given the inherent harm caused by a defamatory statement, this could mean that a defamation plaintiff may not need to establish any further harm or special damages to save its case from dismissal. A plaintiff in a breach of contract case does not, however, benefit from the same presumption of harm.

Extent of Harm: The Supreme Court explained that, because this part of the legal test is a weighing – not a balancing – exercise, the magnitude of harm is a factor that will simply be “weighed” in determining whether to allow the claim to proceed. As such, there is no threshold requirement for the harm to be sufficiently worthy of consideration. In practice, this could mean that a plaintiff may need to demonstrate more significant harm in a case where the impugned expression goes to the core values underlying the freedom of expression. On the other hand, a plaintiff with less significant harm may still be allowed to proceed with its action where there is minimal public interest in protecting the expression at issue (e.g. statements motivated by malice and/or with deliberate lies, gratuitous personal attacks, or vitriol).

Interestingly, whereas the Court of Appeal included “vulgar and offensive language” and “obscenities” as the type of expression that attracts lesser protection, the Supreme Court did not. This exclusion suggests that the Supreme Court does not consider expressions that include obscenities or profanity to necessarily attract lesser protection absent other characteristics to weaken the expression’s quality.

Indicia of SLAPP suits: The other aspect of the analysis under the Public Interest Hurdle, is consideration of the four traditional “indicia” of SLAPP suits.[ii] Earlier decisions have held that the presence of these indicia weighs in favour of dismissing the lawsuit. The Supreme Court appears to have modified that approach, emphasizing that the indicia “may bear on the analysis only to the extent that they are tethered to the text of the statute and the considerations explicitly contemplated by the legislature.”[iii]

The Supreme Court gave examples of the types of factors that may be relevant to the legislative test, including: the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against identifiably vulnerable groups. Notably absent from this list are three of the traditional indicia of SLAPP suits: (1) a history of the plaintiff using litigation or the threat of litigation to silence critics; (2) a financial or power imbalance that strongly favours the plaintiff (except to the extent that disproportion between legal resources impacts the harm analysis); and (3) a punitive or retributory purpose animating the plaintiff’s bringing of the claim.

Broadened Application of Anti-SLAPP Legislation? The Supreme Court’s Pointes Protection and Bent decisions appear to have broadened the scope of application of Anti-SLAPP legislation by: (1) confirming that Anti-SLAPP motions can be brought other types of cases, not just defamation actions; and (2) suggesting that the traditional indicia of SLAPP suits – that were aimed at identifying “Goliath” plaintiffs – may bear minimal, if any, relevance to the weighing exercise under the Public Interest Hurdle.

For some, this may spell opportunity. We may start to see more litigants bringing Anti-SLAPP motions in cases where it may have not previously been considered appropriate to do so, such as cases involving commercial transactions or breach of contract claims. As the scope of Anti-SLAPP regime broadens, the Courts may be faced with novel issues or considerations. In the commercial context, for example, it may be more challenging for the Court to determine where the greater public interest lies, particularly in circumstances where both parties have obligations to a variety of stakeholders (e.g. shareholders, customers, clients, investors, regulators, etc.) that are impacted by the impugned expression.

Further, the unique Anti-SLAPP costs regime does not make sense in a case of two “Goliaths.” Under Ontario’s Anti-SLAPP legislation, a defendant who succeeds in having the case dismissed is entitled to full indemnity costs whereas a successful plaintiff who avoids dismissal is not entitled to any costs.[iv] The rationale for this costs regime presupposes a David-Goliath dynamic, and the “David” defendants should not be prevented from bringing an Anti-SLAPP motion by the potentially significant costs of litigating. More and more, judges may need to exercise their discretion to deviate from the legislative Anti-SLAPP costs regime in favour of the traditional loser-pays regime, particularly where there is no real power imbalance between the parties.

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[i] Similar legislation has also been enacted in British Columbia and Quebec.

[ii] The four indicia are: (1) a history of the plaintiff using litigation or the threat of litigation to silence critics; (2) a financial or power imbalance that strongly favours the plaintiff; (3) a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and (4) minimal or nominal damages suffered by the plaintiff.

[iii] 1704604 Ontario Ltd. V Pointes Protection Association, 2020 SCC 22 at para 79.

[iv] Courts of Justice Act, RSO 1990, c C.43 s 137.1(7)-(8).