Being sued for something you communicated to someone else – a Google review, a social media post, a complaint to a regulator, a comment at a city council meeting – is an unnerving experience. Even a weak claim can cost tens of thousands of dollars to defend and take years to reach trial. For some plaintiffs, that is their end goal – to muzzle you and tie you up in expensive litigation.
Ontario law provides a specific remedy for this problem. The _Protection of Public Participation Act, 2015_, which is enacted as section 137.1 of the _Courts of Justice Act_ and is commonly referred to as the “Anti-SLAPP Act,” allows a defendant to move early in a lawsuit for an order dismissing it outright, on the basis that the claim targets expression on a matter of public interest. These are commonly called “Anti-SLAPP” motions, which stands for a “strategic lawsuit against public participation.”
This post explains how the test works, what a successful motion achieves, and when to bring, and when not to bring an anti-SLAPP motion.
Purpose of the Legislation
The purpose of the legislation is straightforward. Litigation is expensive and slow. A plaintiff with deep pockets can use that to their advantage to silence a critic without ever having to prove their case. Section 137.1 is a screening device and lets a judge take an early look at whether the claim is worth the chill it would impose on public debate, and decide whether the claim should be dismissed.
The Three-Step Test
Step One - The Defendant's Public Interest Threshold
The defendant must satisfy the judge, on a balance of probabilities, that:
- the proceeding arises from an expression made by the defendant; and
- that expression relates to a matter of public interest.
Both branches are broadly defined. “Expression” means any communication (public or private), whether or not directed at a particular person. The public interest branch is a low, content-driven threshold. The question is what the expression is about generally, not whether it was valuable, accurate, fair, or well-motivated. A judge does not assess the quality of the speech at this stage. The Ontario Court of Appeal has confirmed that even a complaint made in a private or semi-private setting can qualify where it raises concerns of broader interest to a community.
The test is also not confined to defamation. Any cause of action can be caught if the proceeding arises from expression, such as malicious prosecution, inducing breach of contract, unlawful interference with economic relations, breach of confidence, and others. Courts look at substance over form.
Step Two – The Plaintiff's Merits-Based Hurdle
Once a defendant meets that initial low threshold in the first step, the plaintiff must establish that there are “grounds to believe” that the proceeding has substantial merit, and that the defendant has no valid defence. The Supreme Court of Canada has stated that “grounds to believe” is a modest standard, which is more than suspicion, but less than proof on a balance of probabilities. It is not a trial, so the judge conducts a limited assessment of the record, not a deep dive into contested credibility.
Step Three – The Plaintiff’s Public Interest Hurdle and Balancing Test
The plaintiff must also prove that the harm the plaintiff has suffered, or is likely to suffer, is sufficiently serious that the public interest in letting the claim proceed outweighs the public interest in protecting the expression.
The Supreme Court has described this step as the crux of the analysis, and that most motions will be decided at this stage. The plaintiff must put forward actual evidence of harm and of a causal link between the expression and that harm. Bald assertions of reputational damage are not sufficient. On the other side of the scale, the closer the expression is to the core values protected by s. 2(b) of the Charter of Rights and Freedoms, the heavier the plaintiff's burden becomes. Certain indicators that the legal action is being used as a tactical weapon, such as a history of a plaintiff using litigation as a weapon, a punitive damages claim wildly out of proportion to any real loss, or a financial or power imbalance between the parties, are also relevant at this stage.
Two features of the statute are also important:
- Once a notice of motion is filed for an anti-SLAPP motion, no further steps may be taken in the action until the motion is decided. The motion is meant to be heard within 60 days of filing, although that does not always occur, and cross-examination is capped at seven hours per side, unless a judge orders otherwise.
- A defendant who succeeds on the motion is presumptively entitled to costs on a “full indemnity” basis. A plaintiff who defeats the motion is presumptively entitled to no costs. And if the judge finds the plaintiff brought the proceeding in bad faith or for an improper purpose, the court may award the defendant damages on top (s. 137.1(9)).
When a Defendant Should Consider Bringing an Anti-SLAPP Motion
An anti-SLAPP motion tends to be a strong option where several of the following factors are present:
- The subject matter is genuinely a matter of public interest – criticism of a business, professional, or public official; consumer reviews; environmental or land-use advocacy; comments at municipal meetings; complaints to police, a regulator, or a professional body; reporting on matters of community concern.
- The plaintiff's evidence of harm is thin – no lost contracts, no lost customers, no measurable reputational injury, only bald assertions. This is the most common reason that claims are dismissed.
- There is a solid defence supported by documents and evidence. A defence of truth, fair comment, responsible communication, or absolute or qualified privilege, is supported by records, rather than by disputed oral evidence.
- The claim looks like leverage. One example could be a statement of claim that seeks an apology and takedown, rather than damages, or claims damages amounts that are not linked to any real loss, especially in the case involving a corporate plaintiff.
- The defendant cannot afford a war of attrition. The automatic stay and the full indemnity costs presumption exist precisely for this type of defendant.
When an Anti-SLAPP Motion May Be The Wrong Strategy
- Private disputes. If the expression is really about a personal or commercial falling-out with no dimension of public interest to anyone else, the public interest threshold branch may fail. A failed motion means delay and wasted costs.
- Evidence of malice. Where the record suggests a defendant acted out of spite, an improper motive, or makes a personal attack on the plaintiff, defences like fair comment and qualified privilege become vulnerable, and the motion can go south.
- Credibility contests. Since the judge conducts only a limited weighing of the evidence, a case that genuinely turns on whose version of events is true may be better resolved at trial than on a motion.
Other Considerations
The Ontario Court of Appeal has repeatedly cautioned against treating anti-SLAPP motions as a substitute for summary judgment or as a full trial on paper. It has suggested that $50,000 should be an approximate ceiling for the costs of an anti-SLAPP motion, even on a full indemnity basis, and has urged motion judges to hold parties to the 60-day timeline and to keep the record tight. A sprawling motion with volumes of cross-examination transcripts would not be appreciated by most judges hearing the motion.
Appeals are difficult. The Court of Appeal has stated that the decisions of motion judges are owed significant deference on the balancing assessment under step three of the test. Appealing an unsuccessful motion should be approached with realism.
The Court of Appeal has held that anti-SLAPP motions are not available in Small Claims Court. Therefore, a plaintiff who sues for $50,000 or less in Small Claims Court effectively removes the remedy as an option for a defendant.
A Few Practical Points For a Defendant
- Move quickly. There is no fixed limitation period for an anti-SLAPP motion, but delay undercuts the rationale for the remedy and can attract adverse findings by a judge. The motion is usually brought at the outset, before or shortly after filing a statement of defence.
- Preserve everything. You should make copies or take screenshots of the original post or communication, the surrounding thread or context, and any documents that support a defence of truth or fair comment.
- Do not respond publicly. Further commentary about the plaintiff or the lawsuit can provide evidence of malice, and can generate fresh causes of action.
- Obtain legal advice on the best strategy. An anti-SLAPP motion is one option among several. Other options include a Rule 21 motion, a motion to strike, summary judgment, or simply defending the action.
Iain acts for both plaintiffs and defendants in defamation and disputes arising from public expression and has been successful in every motion he has argued – both for plaintiffs and defendants.
Iain regularly advises on anti-SLAPP strategy and whether a proposed claim is likely to attract a motion in the first place. If you have been sued over something you said or published, or you are considering a claim of your own, contact Iain for a confidential consultation.
This article is provided for general information only and is not legal advice. The law in this area is constantly changing, and the outcome of any anti-SLAPP motion depends heavily on the specific facts and evidentiary record. Contact Iain MacKinnon to discuss your own circumstances.