Determining Whether a Proceeding Is a SLAPP Action

• Author: David A. Potts; Erin Stoik
• Pages: 287-298

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Determining Whether a Proceeding Is a SLAPP Action

DEVELOPMENT OF THE COURTS’ WEIGHING EXERCISE IN

SECTION .b

This chapter provides the background of the development of anti-SLAPP

legislation—in particular the issue of how courts have approached the issue

of whether or not an action is a SLAPP proceeding. Those who simply require

an overview of the current caselaw are referred to Chapter 29, “The Weighing

of Public Interest.”

We include this chapter for the following reasons:

1. Knowledge of legal history is important for understanding the present as

well as the past.

2. Anti-SLAPP law is still in its infancy, yet it has completely changed the

landscape of defamation law in Ontario and potentially in British Col-

umbia. The provenance and development of the anti-SLAPP analysis

are important to understand, particularly in light of the decisions of the

Supreme Court of Canada on this topic.

3. There is no current law that is universal across all courts. Some of the

developments discussed below are still relied upon by certain courts.

The same developments are expressly discarded by other courts, or just

ignored entirely. Under these circumstances it is useful to understand the

full development of the process.

Cases from 2016 to September 2018

Before the Ontario Court of Appeal’s decisions in September 2018, the

Superior Court of Justice discussed the question of whether a libel action

was a SLAPP action or not. See for example: