1704604 Ontario Ltd. v. Pointes Protection Association

1704604 Ontario Ltd. v. Pointes Protection Association
Collection
Supreme Court Judgments
Date
2020-09-10
Neutral citation
2020 SCC 22
Report
[2020] 2 SCR 587
Case number
38376
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Courts
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587
Appeal Heard: November 12, 2019 Judgment Rendered: September 10, 2020 Docket: 38376
Between:
1704604 Ontario Limited
Appellant
and
Pointes Protection Association, Peter Gagnon, Lou Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini
Respondents
- and -
British Columbia Civil Liberties Association, Greenpeace Canada, Canadian Constitution Foundation, Ecojustice Canada Society, Centre for Free Expression, Canadian Association of Journalists, Communications Workers of America / Canada, West Coast Legal Education and Action Fund, Atira Women’s Resource Society, B.W.S.S. Battered Women’s Support Services Association, Women Against Violence Against Women Rape Crisis Center, Canadian Civil Liberties Association, Ad IDEM / Canadian Media Lawyers Association, Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, Aboriginal Peoples Television Network and Postmedia Network Inc.
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 129)
Côté J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. concurring)
1704604 ontario ltd. v. pointes protection association
1704604 Ontario Limited Appellant
v.
Pointes Protection Association,
Peter Gagnon, Lou Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini Respondents
and
British Columbia Civil Liberties Association,
Greenpeace Canada,
Canadian Constitution Foundation,
Ecojustice Canada Society,
Centre for Free Expression,
Canadian Association of Journalists,
Communications Workers of America / Canada,
West Coast Legal Education and Action Fund,
Atira Women’s Resource Society,
B.W.S.S. Battered Women’s Support Services Association,
Women Against Violence Against Women Rape Crisis Center,
Canadian Civil Liberties Association,
Ad IDEM / Canadian Media Lawyers Association, Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, Aboriginal Peoples Television Network and Postmedia Network Inc. Interveners
Indexed as: 1704604 Ontario Ltd. v. Pointes Protection Association
2020 SCC 22
File No.: 38376.
2019: November 12; 2020: September 10.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Courts — Dismissal of proceeding that limits debate — Freedom of expression — Matters of public interest — Proper interpretation and application of Ontario’s framework for dismissal of strategic lawsuits against public participation (SLAPPs) — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1.
In 2015, Ontario amended the Courts of Justice Act (“CJA”) by introducing ss. 137.1 to 137.5, occasionally referred to as anti‑SLAPP legislation. These provisions were aimed at mitigating the harmful effects of strategic lawsuits against public participation (“SLAPPs”), a phenomenon used to describe lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression and deter that party, or other potential interested parties, from participating in public affairs.
Pointes Protection Association, a not‑for‑profit corporation, and six of its members (collectively, “Pointes Protection”) relied on s. 137.1 of the CJA to bring a pre‑trial motion to have a $6 million action for breach of contract initiated against them by a land developer dismissed. The action was brought in the context of Pointes Protection’s opposition to a proposed subdivision development by the developer. The developer claimed that the testimony of the association’s president, at a hearing of the Ontario Municipal Board, to the effect that the developer’s proposed development would result in ecological and environmental damage to the region, breached an agreement between the developer and Pointes Protection that imposed limitations on Pointes Protection’s conduct in respect of the approvals sought by the developer from the relevant authorities for its development. Pointes Protection’s s. 137.1 motion was dismissed by the motion judge, who allowed the developer’s action against Pointes Protection to proceed. The Court of Appeal allowed Pointes Protection’s appeal, granted its s. 137.1 motion, and dismissed the developer’s lawsuit.
Held: The appeal should be dismissed.
Freedom of expression is a fundamental right and value; the ability to express oneself and engage in the interchange of ideas fosters a pluralistic and healthy democracy by generating fruitful public discourse and corresponding public participation in civil society. Section 137.1 of the CJA was enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy. Applying this framework in this case, Pointes Protection’s s. 137.1 motion should be granted and the developer’s underlying breach of contract action dismissed.
Section 137.1(3) places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the motion judge that the proceeding initiated against them arises from an expression relating to a matter of public interest. This burden is a threshold one, meaning it is necessary for the moving party to meet in order to even proceed to s. 137.1(4) for the ultimate determination of whether the underlying proceeding should be dismissed. While the term “expression” is expressly defined in the statute, other terms are in need of elaboration. First, in accordance with the jurisprudence interpreting the word, “satisfies” requires the moving party to meet its burden on a balance of probabilities. Second, a broad and liberal interpretation of “arises from” is warranted, which does not limit proceedings arising from an expression to those directly concerned with expression, such as defamation suits. Third, the text of s. 137.1(2) makes it abundantly clear that “expression” is defined expansively. Fourth, and finally, the term “relates to a matter of public interest” should be given a broad and liberal interpretation, consistent with the legislative purpose of s. 137.1. Importantly, it will not be legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest — there is no qualitative assessment of the expression at this stage. The only question is whether the expression pertains to any matter of public interest, defined broadly. The principles from Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, apply in the present context. Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about.
To the extent that the threshold burden under s. 137.1(3) is met by the moving party (i.e. the defendant in the underlying proceeding), then the burden shifts to the responding party — (i.e. the plaintiff) — to avoid having their proceeding dismissed. Under s. 137.1(4), the plaintiff must satisfy the motion judge that (a) there are grounds to believe that their underlying proceeding has substantial merit and the defendant has no valid defence, and that (b) the harm likely to be or have been suffered and the corresponding public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If either (a) or (b) is not met, then this will be fatal to the plaintiff discharging its burden and, as a consequence, the underlying proceeding will be dismissed. However, if the plaintiff can show that both are met, then the proceeding will be allowed to continue.
Unlike with s. 137.1(3), s. 137.1(4)(a) — the merits‑based hurdle — is statutorily circumscribed by an express standard: “grounds to believe”. These words plainly refer to the existence of a basis or source (i.e. “grounds”) for reaching a belief or conclusion that the legislated criteria have been met. Accordingly, “grounds to believe” requires that there be a basis in the record and law — taking into account the stage of litigation at which a s. 137.1 motion is brought — for finding that the underlying proceeding has substantial merit and that there is no valid defence. This assessment must be made from the motion judge’s perspective.
In consideration of the statutory text, the statutory context, and legislative intent, for an underlying proceeding to have “substantial merit” under s. 137.1(4)(a)(i), it must be legally tenable and supported by evidence that is reasonably capable of belief such that it can be said to have a real prospect of success — in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. This standard is more demanding than the one applicable on a motion to strike, which requires that the claim have some chance of success or a reasonable prospect of success. It is, however, less stringent than the likely to succeed standard, the strong prima facie case threshold, or the test for summary judgment. It is critical to recall that a s. 137.1 motion is not a determinative adjudication of the merits of the proceeding and the motion judge should be acutely aware of the stage of the litigation process at which a s. 137.1 motion is brought. Motion judges should engage in only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings more fully developed. It must be borne in mind that even if a lawsuit clears the merits‑based hurdle at s. 137.1(4)(a), it remains vulnerable to summary dismissal as a result of the public interest weighing exercise under s. 137.1(4)(b), which provides courts with a robust backstop to protect freedom of expression.
Under s. 137.1(4)(a)(ii), the plaintiff must also satisfy the motion judge that there are “grounds to believe” that the defendant has “no valid defence” in the underlying proceeding. The word “no” is absolute, and the corollary is that if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed. Mirroring the “substantial merit” prong, the “no valid defence” prong requires the plaintiff to show that there are grounds to believe that the defences put in play by the defendant have no real prospect of success.
The final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis. Section 137.1(4)(b) provides courts with the ability to scrutinize what is really going on in the particular case before them: it is intended to optimize the balance between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest by open‑endedly engaging with the overarching public interest implications that this statute, and anti‑SLAPP legislation generally, seek to address.
Harm is principally important in order for the plaintiff to meet its burden under s. 137.1(4)(b). As a prerequisite to the weighing exercise, the statutory languages requires (i) the existence of harm and (ii) causation — the harm was suffered as a result of the defendant’s expression. Either monetary harm or non‑monetary harm can be relevant, and harm is not synonymous with the damages alleged. Since s. 137.1(4)(b) is a weighing exercise, there is no threshold requirement for the harm to be worthy of consideration: the magnitude of the harm simply adds weight to one side of the weighing exercise. The plaintiff need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link.
Once harm has been established and shown to be causally related to the expression, s. 137.1(4)(b) requires that the harm and corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting the expression. The term “public interest” is used differently here in s. 137.1(4)(b) than in s. 137.1(3). Under s. 137.1(3), the query is concerned with whether the expression relates to a matter of public interest; the assessment is not qualitative. Under s. 137.1(4)(b), in contrast, the public interest must be relevant to specific goals: permitting the proceeding to continue and protecting the impugned expression. Therefore, not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant. While judges should be wary of conducting a moralistic taste test, not all expression is created equal, thus the weighing exercises can be informed by considerations underlying s. 2(b) of the Charter of Rights and Freedoms, such as the search for truth, participation in political decision making, and diversity in forms of self‑fulfilment and human flourishing: the closer the expression is to any of these core values, the greater the public interest in protecting it.
Additional factors may also prove useful in guiding the weighing exercise. For example, the following factors, in no particular order of importance, may be relevant to consider: the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the moving party’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and 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. However, because the s. 137.1(4)(b) stage is fundamentally a public interest weighing exercise and not simply an inquiry into the hallmarks of a SLAPP, the only factors that might be relevant in guiding the 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.
Fundamentally, s. 137.1(4)(b) allows judges to assess how allowing individuals or organizations to vindicate their rights through a lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy. The burden is on the plaintiff to show on a balance of probabilities that it likely has suffered or will suffer harm, that such harm is a result of the expression established under s. 137.1(3), and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation. The provision expressly requires that one consideration outweigh the other; this is substantively different than simply balancing the considerations against one another.
In the present case, Pointes Protection meets its threshold burden under s. 137.1(3) with little difficulty, as the relevant expression — testimony on the environmental impact and ecological consequences of the proposed development — relates to a matter of public interest and the land developer’s breach of contract action arises from that expression. The land developer’s action must be dismissed, however, as the developer cannot meet its burden under s. 137.1(4).
First, the developer’s action lacks substantial merit: it is not legally tenable and not supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success. The land developer’s claim is based solely on an alleged breach of a contract by Pointes Protection, but the interpretation advanced by the land developer does not flow from the plain language of the contract or the factual matrix surrounding it; the reading urged by the land developer would distort the ordinary meaning of the words in a manner that exceeds the bounds of appropriate judicial intervention in matters of contractual interpretation.
Second, regardless, the land developer’s underlying action can nonetheless be dismissed on the independent ground that the developer cannot establish on a balance of probabilities that the weighing of the public interest favours permitting the proceeding to continue under s. 137.1(4)(b). The harm likely to be or have been suffered by the developer as a result of Pointes Protection’s expression lies at the very low end of the spectrum and, correspondingly, so too does the public interest in allowing the proceeding to continue. Indeed, the land developer’s theory of harm is conjecture and its interest in finality is dependent entirely on the correctness of its interpretation of the contract. In contrast, the public interest in protecting Pointes Protection’s expression is significant and falls at the higher end of the spectrum. The public has a strong interest in the subject matter — which relates to the ecological impact and environmental degradation associated with a proposed large‑scale development — and strengthening the integrity of the justice system by encouraging truthful and open testimony is inextricably linked to the freedom of participants to express themselves in the forums concerned without fear of retribution.
For these reasons, Pointes Protection’s s. 137.1 motion should be granted on either of the independent grounds that the land developer’s action lacks substantial merit and that the land developer is unable to demonstrate that the weighing of the public interest favours permitting the proceeding to continue. Consequently, the land developer’s underlying action should be dismissed.
Cases Cited
Referred to: Galloway v. A.B., 2019 BCCA 385, 30 B.C.L.R. (6th) 245; Klepper v. Lulham, 2017 QCCA 2069; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Topp, 2011 SCC 43, [2011] 3 S.C.R. 119; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Shannon v. 1610635 Alberta Inc., 2014 ABCA 393, 588 A.R. 76; R. v. Driscoll (1987), 79 A.R. 298; Allstate Insurance Co. of Canada v. Aftab, 2015 ONCA 349, 335 O.A.C. 172; Sheppard v. Co‑operators General Insurance Co. (1997), 33 O.R. (3d) 362; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Bracklow v. Bracklow, [1999] 1 S.C.R. 420; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Ontario (Alcohol and Gaming Commission) v. 751809 Ontario Inc., 2013 ONCA 157, 115 O.R. (3d) 24; Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, 371 C.C.C. (3d) 149; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, 410 D.L.R. (4th) 380, aff’d 2018 ONCA 690, 428 D.L.R. (4th) 568; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60; Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211; Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, 426 D.L.R. (4th) 1; Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688; London Artists, Ltd. v. Littler, [1969] 2 All E.R. 193; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Avery v. Pointes Protection Assn., 2016 ONSC 6463, 60 M.P.L.R. (5th) 70; Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38.
Statutes and Regulations Cited
Bill 52, Protection of Public Participation Act, 2015, 1st Sess., 41st Leg., 2015.
Canadian Charter of Rights and Freedoms , ss. 2( b ) , 15 .
Conservation Authorities Act, R.S.O. 1990, c. C.27.
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, 137.2, 137.3, 137.4, 137.5.
Planning Act, R.S.O. 1990, c. P.13, ss. 2, 51(24).
Protection of Public Participation Act, 2015, S.O. 2015, c. 23.
Authors Cited
Black’s Law Dictionary, 11th ed., by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2019, “substantial”.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2019 (updated 2019, release 1).
Ontario. Legislative Assembly. Official Report of Debates (Hansard), No. 41A, 1st Sess., 41st Parl., December 10, 2014, pp. 1971‑75.
Ontario. Legislative Assembly. Official Report of Debates (Hansard), No. 112, 1st Sess., 41st Parl., October 27, 2015, pp. 6017, 6021, 6025‑27.
Ontario. Ministry of the Attorney General. Anti‑Slapp Advisory Panel: Report to the Attorney General. Toronto, 2010.
Sheldrick, Byron. Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression. Waterloo, Ont.: Wilfrid Laurier University Press, 2014.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Brown and Huscroft JJ.A.), 2018 ONCA 685, 142 O.R. (3d) 161, 23 C.P.C. (8th) 312, 426 D.L.R. (4th) 233, 46 Admin. L.R. (6th) 70, 50 C.C.L.T. (4th) 173, 79 M.P.L.R. (5th) 179, [2018] O.J. No. 4449 (QL), 2018 CarswellOnt 14179 (WL Can.), setting aside a decision of Gareau J., 2016 ONSC 2884, 84 C.P.C. (7th) 298, [2016] O.J. No. 2395 (QL), 2016 CarswellOnt 7322 (WL Can.). Appeal dismissed.
Orlando M. Rosa, Paul R. Cassan and Tim J. Harmar, for the appellant.
Mark Wiffen, for the respondents.
Peter Kolla, Amanda Bertucci and Maia Tsurumi, for the intervener the British Columbia Civil Liberties Association.
Nader R. Hasan and Priyanka Vittal, for the intervener Greenpeace Canada.
Adam Goldenberg and Simon Cameron, for the intervener the Canadian Constitution Foundation.
Julia Croome, Joshua Ginsberg and Sue Tan, for the intervener the Ecojustice Canada Society.
Justin Safayeni and Pam Hrick, for the interveners the Centre for Free Expression, the Canadian Association of Journalists and the Communications Workers of America / Canada.
David Wotherspoon, Rajit Mittal and Amber Prince, for the interveners the West Coast Legal Education and Action Fund, the Atira Women’s Resource Society, the B.W.S.S. Battered Women’s Support Services Association and the Women Against Violence Against Women Rape Crisis Center.
Alexi N. Wood and Jennifer P. Saville, for the intervener the Canadian Civil Liberties Association.
Iain A. C. MacKinnon and Justin Linden, for the interveners the Ad IDEM / Canadian Media Lawyers Association, the Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, the Aboriginal Peoples Television Network and Postmedia Network Inc.
The judgment of the Court was delivered by
[1] Côté J. — Freedom of expression is a fundamental right and value; the ability to express oneself and engage in the interchange of ideas fosters a pluralistic and healthy democracy by generating fruitful public discourse and corresponding public participation in civil society. This case is about what happens when individuals and organizations use litigation as a tool to quell such expression, which, in turn, quells participation and engagement in matters of public interest. More specifically, this Court is being asked to decide whether an action brought by 1704604 Ontario Limited (“170 Ontario”) against the Pointes Protection Association and six of its members (collectively “Pointes Protection”) can proceed, or whether it must be dismissed under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). For the reasons that follow, I am of the view that 170 Ontario’s lawsuit must be dismissed. I would accordingly dismiss the appeal before this Court.
I. Introduction
[2] Strategic lawsuits against public participation (“SLAPPs”) are a phenomenon used to describe exactly what the acronym refers to: lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest. SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs.
[3] In light of the increased proliferation of SLAPPs, provincial legislatures (in Ontario, British Columbia, and Quebec) have enacted laws to mitigate their harmful effects. These laws are occasionally referred to as “anti-SLAPP” legislation (2018 ONCA 685, 142 O.R. (3d) 161; Galloway v. A.B., 2019 BCCA 385, 30 B.C.L.R. (6th) 245; Klepper v. Lulham, 2017 QCCA 2069; B. Sheldrick, Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression (2014)).
[4] At issue here is such a law. In November 2015, the Ontario Protection of Public Participation Act, 2015, S.O. 2015, c. 23 (“Act”), came into force. The Act amended the CJA, by introducing, in relevant part, ss. 137.1 to 137.5.
[5] In this appeal, the Court is effectively being asked to shed light and offer guidance on how to properly apply the framework set out in s. 137.1 of the CJA. Accordingly, I endeavour to do so below, but not without first providing some background on the legislation at issue in Part II. Subsequently, in Part III, I set out the proper legal framework for dealing with s. 137.1 motions. Finally, in Part IV, I apply the established legal framework to the facts of this case.
II. Background
[6] Before I explain the parameters of the s. 137.1 framework, it is necessary, as part of the exercise of statutory interpretation, to outline the legislative background of the bill which brought s. 137.1 into effect. Such legislative background and history offer contextual clues to and insight into the legislative purpose of the bill, as well as indicia of the proper interpretation of the provisions at issue, which will be explored in turn below. Indeed, this Court has reiterated on numerous occasions that the modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21).
[7] In 2010, the Attorney General of Ontario mandated an Anti-SLAPP Advisory Panel (“Panel”) to advise the government on how to respond to the proliferation of SLAPPs. The Panel was chaired by experts and examined a plethora of materials, including legal articles, relevant statutes from other jurisdictions, and advocacy documents. The Panel also invited comments and submissions from the public and interested parties. All of this culminated in the Anti-Slapp Advisory Panel: Report to the Attorney General (“APR”), which was published in October 2010.
[8] The APR “concluded that it is desirable for Ontario to enact legislation against the use of legal processes that affect people’s ability or willingness to express views or take action on matters of public interest” (para. 10). The APR looked extensively at the need for such legislation (paras. 6-16), then provided suggestions on the content of the legislation and outlined the concerns underlying that content.
[9] The APR advocated a “broad scope of protection” (para. 29) that would “ensure that the full scope of legitimate participation in public matters is made subject to the special procedure” (para. 31). Fundamental to the APR’s proposal was the theme of balancing and proportionality. While “an adverse effect on the ability of persons to participate in discussion on matters of public interest should not be sufficient to prevent the plaintiff’s action from proceeding” (para. 36), “the fact that a plaintiff’s claim may have only technical validity should not be sufficient to allow the action to proceed” (para. 37). To reconcile these considerations, the APR proposed a multi-step test that ended up being substantively similar to the one later adopted by the legislature.
[10] In November 2015, Ontario brought into force Bill 52, Protection of Public Participation Act, 2015, 1st Sess., 41st Leg., 2015, which, as noted above, amended the CJA by introducing ss. 137.1 to 137.5. The purposes of those provisions were specified in the legislation itself, in s. 137.1(1) of the CJA:
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
[11] This was prompted by the APR, which stated that the “legislation should include a purpose clause for the benefit of judicial interpretation” (Summary of Recommendations, at para. 2). While legislative purpose bears on the exercise of statutory interpretation regardless of whether a purpose clause exists, the fact that the APR explicitly urged legislators to include such a clause for the benefit of judicial interpretation, and that legislators consciously obliged, demonstrates that the purpose clause in s. 137.1(1) commands considerable interpretative authority.
[12] Further indications of legislative intention can be gleaned from the debates in the Legislative Assembly of Ontario. At second reading of the bill, the Attorney General of Ontario at the time, the Hon. Madeleine Meilleur, stated the following:
If passed, this legislation will allow courts to quickly identify and deal with strategic lawsuits, minimizing the emotional and financial strain on defendants, as well as the waste of court resources.
. . .
. . . Our proposed legislation strikes a balance that will help ensure abusive litigation is stopped, but legitimate action can continue.
This proposed legislation is about preventing strategic lawsuits. Anyone who has a legitimate claim of libel or slander should not be discouraged by this legislation.
(Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 41A, 1st Sess., 41st Parl., December 10, 2014, at p. 1975)
[13] Ultimately, the legislative debates preceding the passage of the Act echoed the same concerns expressed by the Panel in the APR. Indeed, parliamentarians acknowledged as much: “This bill came forward as a result of a report from 2010” (p. 1975 (Ms. Sylvia Jones)); “a made-in-Ontario approach to address the issue of strategic lawsuits based on consensus, recommendations of an expert advisory panel and extensive stakeholder consultation” (p. 1975 (Hon. Madeleine Meilleur)). Accordingly, it should come as no surprise that the final test adopted in the legislation was very similar substantively to the test proposed in the APR. This makes it clear that the APR had a considerable influence on the legislation which was enacted and which is now at issue before this Court.
[14] For this reason, the Panel and its APR are persuasive authority for the purposes of statutory interpretation. It must be remembered that “[l]egislative history includes material relating to the conception, preparation and passage of the enactment”, and this “may often be [an] important par[t] of the context to be examined as part of the modern approach to statutory interpretation” (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“CHRC”), at para. 43). Indeed, the late Peter W. Hogg defined legislative history as including the following:
1. [T]he report of a royal commission or law reform commission or parliamentary committee recommending that a statute be enacted;
. . .
3. a report or study produced outside government which existed at the time of the enactment of the statute and was relied upon by the government that introduced the legislation . . . .
(Constitutional Law of Canada (5th ed. Supp., at pp. 60-1 to 60-2)
While reports like the APR are generally “admissible for any purpose the court thinks appropriate”, the weight accorded to them depends on the circumstances (R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 685; see also R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 51). As I have explained, the APR was the clear impetus for the legislation, and was relied upon heavily by the legislature in drafting s. 137.1 of the CJA. Accordingly, it is a persuasive source that “provide[s] helpful information about the background and purpose of the legislation” (CHRC, at para. 44).
[15] In light of the foregoing, I turn in Part III below to the interpretation of the statutory text of s. 137.1(3) and (4), informed by the legislative history and the purposes that animate these provisions. As already mentioned, this is in accordance with what this Court has referred to as the modern approach to statutory interpretation.
III. Framework
[16] As indicated above, s. 137.1 is the provision in the CJA that is meant to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions. The final statutory language adopted makes it clear how the APR and the legislative debates informed the drafting of the provision: there is an invocation of the need for the expression to relate to a matter of public interest; the underlying proceeding must have substantial merit (beyond “technical validity”, as the APR noted, at para. 37); and the public interest in protecting the expression must be weighed against the public interest in permitting the underlying proceeding to continue (echoing the importance of balance repeatedly noted in the APR and the legislative debates).
[17] The relevant portions of s. 137.1 are reproduced below:
(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.
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
[18] In brief, s. 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed. It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis: as noted repeatedly above, the APR and the legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest. Section 137.1(4)(b) is intended to optimize that balance.
[19] In the following section, I offer an explanation of each step of the s. 137.1 analysis, including what is expected of each party and how the relevant terms used in the provision must operate. This analysis of the framework is grounded in the words of the statute read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, while remaining mindful of the legislative background and informed particularly by the APR and the legislative debates.
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:
(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 moving 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 ultimate determination of whether the proceeding should be dismissed.
[22] However, while the term “expression” is expressly defined in the statute, other terms are in need of elaboration in order to understand how the moving party can satisfy its threshold burden.
[23] First, what does “satisfies” require? I am in agreement with Doherty J.A. of the Court of Appeal for Ontario that “satisfies” requires the moving party to meet its burden on a balance of probabilities (C.A. reasons, at para. 51