The Weighing of Public Interest

• Author: David A. Potts; Erin Stoik
• Pages: 299-307

299

 29

The Weighing of Public Interest

In September 2020, the Supreme Court of Canada revised the interpretation

of section 137.1(4)(b) and held that the section 137.1(4)(b) stage involves a pub-

lic interest weighing exercise and not simply an inquiry into the hallmarks

of a SLAPP.

1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at paras 78–80:

[79] . . . This is because the s. 137.1(4)(b) stage is fundamentally a public inter-

est weighing exercise and not simply an inquiry into the hallmarks of a SLAPP.

Therefore, for this reason, the only factors that might be relevant in guiding that

weighing exercise are those tethered to the text of s. 137.1(4)(b), which calls for

a consideration of: the harm suf‌fered or potentially suf‌fered by the plaintif‌f, the

corresponding public interest in allowing the underlying proceeding to continue,

and the public interest in protecting the underlying expression.

[80] Accordingly, additional factors may also prove useful. For example,

the following factors, in no particular order of importance, may be relevant

for the motion judge to consider:

1. the importance of the expression,

2. the history of litigation between the parties,

3. broader or collateral ef‌fects on other expressions on matters of public

interest,

4. the potential chilling ef‌fect on future expression either by a party or

by others,

5. the defendant’s history of activism or advocacy in the public interest,

6. any disproportion between the resources being used in the lawsuit and the

harm caused or the expected damages award, and

7. the possibility that the expression or the claim might provoke hostility

against an identif‌iably vulnerable group or a group protected under s. 15

of the Charter or human rights legislation.