Legislative Background to Anti-SLAPP Proceedings

• Author: David A. Potts; Erin Stoik
• Pages: 69-78

69

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Legislative Background to Anti-SLAPP Proceedings

SUMMARY OF ANTISLAPP ISSUES AND PROCEEDINGS

1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685 per Doherty JA at

paras 1–3 and 6–7:

[1] Freedom of expression is a constitutionally-protected right in Canada. The

free and open expression of divergent, competing, and strong viewpoints on

matters of public interest is essential to personal liberty, self-fulf‌illment, the

search for the truth, and the maintenance of a vibrant democracy.

[2] From time to time, those who are the target of criticism resort to litigation,

not to vindicate any genuine wrong done to them, but to silence, intimidate, and

punish those who have spoken out. Litigation can be a potent weapon in the

hands of the rich and powerful. The f‌inancial and personal costs associated

with defending a lawsuit, particularly one brought by a deep-pocketed plaintif‌f

determined to maximize the costs incurred in defending the litigation, can

deter even the most committed and outspoken critic.

[3] Lawsuits brought to silence and/or f‌inancially punish one’s critics have

come to be known as Strategic Lawsuits Against Public Participation (“SLAPP”).

Defamation lawsuits, perhaps because of the relatively light burden the case

law places on the plaintif‌f, have proved to be an ideal vehicle for SLAPPs.

. . .

[6] The Act amended various statutes, including the Courts of Justice Act,

R.S.O. 1990, c. C.43 (“CJA”). Section 3 of the Act introduced ss. 137.1 to 137.5 to

the CJA. Those sections created a new pretrial procedure allowing defendants

to move expeditiously and early in the litigation for an order dismissing claims

arising out of expressions by defendants on matters of public interest. The

sections are attached as Appendix A to these reasons.

[7] Stripped to its essentials, s. 137.1 allows a defendant to move any time

after a claim is commenced for an order dismissing that claim. The defendant