No Further Steps in Proceeding - Section 137.1(5)

• Author: David A. Potts; Erin Stoik
• Pages: 365-388

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No Further Steps in Proceeding—Section 137.1(5)

LEGISLATION

Courts of Justice Act, RSO 1990, c C.43 [CJA], section 137.1:

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be

taken in the proceeding by any party until the motion, including any appeal of

the motion, has been f‌inally disposed of.

Protection of Public Participation Act, SBC 2019, c 3 [PPPA], section 5:

No further steps

5 (1) Subject to subsection (2), if an applicant serves on a respondent an appli-

cation for a dismissal order under section 4, no party may take further steps

in the proceeding until the application, including any appeals, has been f‌inally

resolved.

(2) Subsection (1) does not apply to an application for an injunction.1

THE USMPENNY PRINCIPLE

Since the “USM/Penny Principle” runs through these cases, we will examine

it as the outset. We have created that abbreviation based on our acknow-

ledgement of the analysis by Penny J of the Superior Court of Justice.

An excellent analysis of section 137.1(5) as well a creative distinction of the

law and very practical advice and guidance is found in United Soils Manage-

ment Ltd v Katie Mohammed, 2017 ONSC 904 by Penny J of the Superior

Court of Justice at paras 16–23:

1 Note that there is no comparable provision in Ontario law.

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[16] Section 137.1 is plain enough. Once the anti-SLAPP motion is brought, no

party may take any further step in the proceeding until the motion is f‌inally

disposed of. The prohibition makes good sense given the purpose of the

legislation, as it prevents the use of “extraneous tactical steps” that might

be used to undermine the eciency of the intended process. The provision

contains no exceptions and, importantly, the court is af‌forded no power to

grant relief from the prohibition in any circumstances.

[17] The Master correctly found that f‌iling a pleading in the action is a

“further step” in the proceeding. Having made that f‌inding, the only choice

was to set that step aside.

[18] I come to this conclusion with the greatest of respect to Master Muir

because I entirely share the Master’s concerns about the importance of the

merits, and specif‌ically, whether the defendant has a valid defence to the

action (s. 137.1(4)) and the need for evidence or information about the merits

in order to properly decide the main motion on its merits.

[19] I part company with the Master, however, on the need for a state-

ment of defence to be f‌iled in the proceeding in order for the defendant to

put material before the court on the validity of her defence.

[20] The Master, at some points in his analysis, glosses over the dif‌fer-

ence between taking steps in the proceeding as opposed to taking steps in

the motion. It seems to me clear, reading the anti-SLAPP provisions of the

Act as a whole, that a distinction is and must be made between taking steps

or f‌iling material in relation to the motion and taking further steps in the

proceeding. The former is permitted, the latter is not.

[21] In my view, the proper course for a defendant wishing to put her

statement of defence before the Court in connection with an anti-SLAPP

motion is:

(a) to serve and f‌ile the defence before bringing the motion;

(b) attach a draft or proposed statement of defence as an exhibit to her a-

davit f‌iled in support of the motion; or

(c) otherwise detail the content of the defence in the adavit f‌iled in support

of the motion.

It is, therefore, not “necessary” to interpret s. 137.1(5) as Master Muir has done

in order to allow a defendant to put its defence before the court on its anti-

SLAPP motion, because there exist alternative methods of putting the rel-

evant, desirable, helpful or necessary material before the court within the

context of the motion itself.

. . .