Public Interest: Legislation and Caselaw

• Author: David A. Potts; Erin Stoik
• Pages: 113-129

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Public Interest: Legislation and Caselaw

LEGISLATION

Courts of Justice Act, RSO 1990, c C.43, s 137.1(1)(3):

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge

shall, subject to subsection (4), dismiss the proceeding against the person if

the person satisf‌ies the judge that the proceeding arises from an expression

made by the person that relates to a matter of public interest.

Protection of Public Participation Act, SBC 2019, c 3, s 4(1):

4 (1) In a proceeding, a person against whom the proceeding has been brought

may apply for a dismissal order under subsection (2) on the basis that

(a) the proceeding arises from an expression made by the applicant, and

(b) the expression relates to a matter of public interest.

THE GOVERNING PRINCIPLES

The General Threshold Requirement

The Supreme Court of Canada recently lucidly, yet concisely, stated in authori-

tative terms the principles governing the application and interpretation of

this threshold requirement for the moving party in an anti-SLAPP motion.

They will provide guidance for future cases, as the extracts below illustrate.

1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at paras 20–21:

A. Section 137.1(3)—Threshold Burden on the Moving Party

[20] Section 137.1(3) is reproduced for convenience below, with my own

emphasis placed on the terms requiring further illumination:

114 |        - 

(3) On motion by a person against whom a proceeding is brought, a

judge shall, subject to subsection (4), dismiss the proceeding against

the person if the person satisf‌ies the judge that the proceeding arises

from an expression made by the person that relates to a matter of public

interest.

[21] Fundamentally, this is a two-part analysis. The burden is on the mov-

ing party to show that

(i) the proceeding arises from an expression made by the moving party

and that

(ii) the expression relates to a matter of public interest.

This is a threshold burden, which means that it is necessary for the moving

party to meet this burden in order to even proceed to s. 137.1(4) for the ultim-

ate determination of whether the proceeding should be dismissed.

[Line breaks added]

This threshold burden on the moving party is a condition precedent, the

importance of which cannot be overestimated. Every anti-SLAPP decision in

British Columbia and Ontario, at both the trial court level and the appellate

level, has examined it, discussed it, and set forth the governing principles

surrounding its application. See, for example:

Ontario Court of Appeal

• Ontario College of Teachers v Bouragba, 2019 ONCA 1028 at paras 17–19

• Sokolof‌f v Tru-Path Occupational Therapy Services Ltd, 2020 ONCA 730 at

paras 17–34

• Nanda v McEwan, 2020 ONCA 431 at paras 34–47

Ontario Superior Court of Justice

• Schwartz & Red Lake Outf‌itters v Collette, 2020 ONSC 6580 at paras 62–79

• Niu v Cao, 2020 ONSC 5407 at paras 48–51

• Rebel News v Al Jazeera Media, 2021 ONSC 1035 at paras 23–27

British Columbia Court of Appeal

• Galloway v AB, 2020 BCCA 106 at paras 11–12

British Columbia Supreme Court

• Cheema v Young, 2021 BCSC 461

• Lyncaster v Metro Vancouver Kink Society, 2019 BCSC 2207 at paras 18–29