“This was the rigorous appellate analysis of the legislation that people were looking for,” says Kevin O’Brien, partner at Osler Hoskin & Harcourt LLP.
“Expression on matters of public interest is to be encouraged. Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage,” Doherty wrote in the decision.
A defendant can bring an anti-SLAPP motion at the beginning of the trial before they have filed a statement of defence. When having done so the defendant has to satisfy the judge that the suit has arisen from an expression that relates to a matter of public interest.
It is then up to the plaintiff to refute the public interest argument, show the proceeding has “substantial merit,” show the defendant is without a valid defence for claim of libel and show the harm of the defendant’s action renders the public interest in permitting the proceedings greater than the public interest of protecting the expression.
The court has confirmed the appropriate legal standards by which the plaintiff shows his claim has substantial merit and the defendant has no reasonable defence as a “regular balance of probability standards,” says O’Brien.
The plaintiff’s onus to show the claim has substantial merit and the defendant is without a valid defence raises the question of whether these two aspects “are within the range of reasonable conclusions, available on the record,” says Ben Kates, associate at Stockwoods LLP Barristers.
“I think there's a question that remains as to how that analysis is going to play out,” he says.
Also remaining unanswered, says Kates, is the competing interests between the public interest of permitting the proceedings and that of protecting the expression.
“The public interest evaluations required under s. 137.1(4)(b) cannot be reduced to an arithmetic-like calculation. It would be misleading to pretend they can be. The assessments are qualitative and, to some extent, subjective,” wrote Doherty in the decision.
O’Brien says Doherty made it clear in the decision that “most of these cases” will turn on the second element, where the onus is put back on the plaintiff. The decision makes clear that the plaintiff does not have to prove their opponent lacks a valid defence, they need to “show on the evidence that there’s reasonable grounds to believe that they may not be able to make out a defence,” O’Brien says.
Those claiming defamation “must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression,” Doherty wrote in the decision.
In earlier cases involving anti-SLAPP motions, many felt the legislation was interpreted in a way that made it too easy for the defendants to earn a dismissal, says O’Brien.
O’Brien says a SLAPP motion, which is made under s. 137.1(1) of the Courts of Justice Act, is not meant to be a replacement for a trial or summary judgment motion but to operate as a screening mechanism, so that unmeritorious claims are rejected at an early stage.
In determining whether a matter is in the public interest, the motion judge is to apply the principles from the Supreme Court case Grant v. Torstar Corp.
The Court of Appeal has determined that ‘matter of public interest’ can be interpreted broadly, says O’Brien.
“Courts, historically and here, have been quite generous in terms of what they have held is a matter of public interest and this decision doesn't change that,” he says.
Lawyers now have a framework with which they can advise their clients on the risks and chances of success when it comes to whether to commence litigation or bring an anti-SLAPP motion, Kates says. But the test will be developed over time in future decisions, he says.