Legislative Background to Anti-SLAPP Proceedings

AuthorDavid A. Potts; Erin Stoik
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Legislative Background to Anti-SLAPP 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

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