Judicial Screening

• Author: David A. Potts; Erin Stoik
• Pages: 84-92

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Judicial Screening

JUDICIAL DISCUSSION OF JUDICIAL SCREENING

Anti-SLAPP motions are a form of judicial triage or screening mechanism.

There is no explanation of this function in the legislation. However, the

Supreme Court of Canada and the Ontario Court of Appeal in Pointes have

discussed at length this aspect of anti-SLAPP motions.

1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 per Côté J at paras16

and 62:

[16] As indicated above, s. 137.1 is the provision in the CJA that is meant to

function as a mechanism to screen out lawsuits that unduly limit expres-

sion on matters of public interest through the identif‌ication and pre-trial

dismissal of such actions. The f‌inal statutory language adopted makes it clear

how the APR and the legislative debates informed the drafting of the provi-

sion: there is an invocation of the need for the expression to relate to a mat-

ter of public interest; the underlying proceeding must have substantial merit

(beyond “technical validity”, as the APR noted, at para. 37); and the public

interest in protecting the expression must be weighed against the public inter-

est in permitting the underlying proceeding to continue (echoing the import-

ance of balance repeatedly noted in the APR and the legislative debates).

. . .

[62] As I have often mentioned in these reasons, this provision is the core

of s. 137.1. The purpose of s. 137.1 is to function as a mechanism to screen out

lawsuits that unduly limit expression on matters of public interest through

the identif‌ication and pre-trial dismissal of such actions. While s. 137.1(4)(a)

directs a judge’s specif‌ic attention to the merit of the proceeding and the exist-

ence of a valid defence in order to ensure that the proceeding is meritorious,

s. 137.1(4)(b) open-endedly engages with the overarching concern that this