Proof of Harm in Anti-SLAPP Proceedings: General Principles

AuthorDavid A. Potts; Erin Stoik
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Proof of Harm in Anti-SLAPP Proceedings:
General Principles
In the cases where harm has been found in the past and potentially in the
future, courts—including the Supreme Court of Canada and the Ontario
Court of Appeal in 1704604 Ontario Ltd v Pointes Protection Association, 2018
ONCA 685, af‌f’d 2020 SCC 22 and Platnick v Bent, 2018 ONCA 687, af‌f’d
Bent v Platnick, 2020 SCC 23—have stated the principles applicable to anti-
SLAPP cases.
As mentioned earlier, this text is designed to assist judges and lawyers to
prepare for, conduct, and assess proceedings under section 137.1 of the Courts
of Justice Act, RSO 1990, c C.43 [CJA], in Ontario and the Protection of Public
Participation Act, SBC 2019, c 3 [PPPA] of British Columbia.
Unlike defamation law, CJA section 137.1/PPPA proceedings are in their
infancy. We have provided a summary of the principles that are developing
and being applied in these proceedings. At this early stage of the develop-
ment of the law of anti-SLAPP, we have included extensive extracts from
decisions where the courts are actively wrestling with the evidence or lack
thereof submitted by counsel and are providing reasons relating to the evi-
dence before them. Sometimes we have included extracts from appellate and
motion courts in the same case.
At this stage of the development of the law we believe it would be pre-
sumptuous and possibly misguided to inject our comments into the caselaw.
However, we have inserted headings and brief topic sentences, to facilitate
understanding of the extracts. In some situations, we will insert further
authorities to provide opportunity for further exploration.
Finally, aside from the decisions of the Supreme Court of Canada and the
Ontario Court of Appeal in Pointes and Bent, in this edition we have limited
the extract references to the following decisions:

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