Over the approximately six years since Ontario’s anti-SLAPP legislation was introduced, Ontario courts and the Supreme Court of Canada have provided significant guidance with respect to the substantive elements of the anti-SLAPP regime – but certain procedural aspects have remained elusive. Fortunately, in the lead-up to the Thanksgiving long weekend, an Ontario Superior Court decision has clarified a key procedural component of the anti-SLAPP scheme.
Sections 137.1-137.5 of the Courts of Justice Act create a mechanism by which a defendant can seek the early dismissal of a lawsuit that qualifies as a “strategic lawsuit against public participation” (colloquially called a “SLAPP”), or which has the effect of unduly suppressing expression on matters of public interest. Pursuant to those provisions, once an anti-SLAPP motion has been “made”, the action is stayed – or suspended – such that no further steps may be taken in the proceeding until the motion has been finally disposed of.[1] However, the statute does not clearly identify at what point the motion is considered to have been “made”.
The Ontario Superior Court recently addressed this issue in Canadian Thermo Windows Inc. v Seangio.[2] The plaintiff window supplier had sued two of its customers who posted negative reviews on internet review sites for defamation. The defendants responded by serving a notice of motion for an anti-SLAPP motion, and scheduled an appearance in Civil Practice Court (“CPC”) to obtain a date for the motion.[3] The night before the CPC attendance, the plaintiffs purported to discontinue their lawsuit in an attempt to avoid the cost (and costs consequences) of an anti-SLAPP motion. The defendants sought costs and damages, pursuant to the anti-SLAPP scheme.[4]
The parties disagreed on the defendants’ entitlement to the benefit of the anti-SLAPP provisions. The defendants took the position that the action had been stayed by their anti-SLAPP motion, such that the plaintiffs could not validly discontinue their action, and the defendants’ motion was active. The plaintiffs took the position that the anti-SLAPP motion had not yet been “made” because no motion date had been obtained prior to the notice of motion being served,[5] and that the stay therefore had not come into effect.
Justice Myers engaged in a statutory interpretation exercise to determine when an anti-SLAPP motion is “made”. He concluded that, in the context of the anti-SLAPP provisions, a motion is “made” “when the moving defendant takes the last step unilaterally available for it to do so under the applicable Rules and practice directions”.[6] Such a result was consistent with the language of the statutory provisions, and consistent with the legislative intention:
- The statute refers to the motion being “made” in relation to the stay of proceedings, rather than “served” or “filed” (which are used in other provisions of the anti-SLAPP scheme). The requirement to obtain a motion date before serving a notice of motion therefore is not determinative of when the motion is made, and consequently, when a stay of proceedings is imposed.
- The anti-SLAPP scheme is intended to prevent a plaintiff from inflicting substantial costs on defendants to chill their participation in public interest expression. If a proceeding is not stayed until an anti-SLAPP motion date is obtained from the court (a step which requires cooperation by the plaintiff), plaintiffs would have the opportunity to take untoward or costly steps when they know an anti-SLAPP motion is coming but has not yet been scheduled. This would frustrate the intention of the statutory scheme. The stay of proceedings coming into effect when the defendant has taken all unilateral steps available to it, rather than depending on steps requiring the cooperation of the plaintiff, furthers the legislative intention.
In this case, the defendants had taken the step of delivering a Requisition to Attend Civil Practice Court, to obtain a CPC attendance to schedule their anti-SLAPP motion. This was the last step unilaterally available to them. Their anti-SLAPP motion was “made” at that time, with the result that the proceeding was stayed at the time the plaintiffs delivered a notice of discontinuance. In the circumstances, the plaintiffs’ discontinuance was ineffective.
Justice Myers proceeded to decide the merits of the anti-SLAPP motion. He found that the action arose from expression on a matter of public interest, and that the plaintiffs had not met their burden to establish grounds to believe that the defendants’ defences of justification and fair comment were not valid. He also found that the public interest favoured protecting the defendants’ expression. The evidence suggested that the plaintiffs’ loss resulting from the alleged defamation would be modest at best. This was outweighed by the action’s display of the common indicia of a SLAPP suit, and the court’s finding that the action was likely retributive in design. Justice Myers therefore granted the anti-SLAPP motion and dismissed the action, awarding the defendants their costs on a full indemnity scale and an additional nominal damages award.
This decision should provide much-needed procedural clarity for counsel seeking to bring anti-SLAPP motions – something we can all be thankful for.
[1] Courts of Justice Act, RSO 1990, c C.43, s 137.1(5).
[2] 2021 ONSC 6555.
[3] In Toronto, long motions must be scheduled at a Civil Practice Court attendance prior to the serving of a notice of motion: see Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region.
[4] See Courts of Justice Act, RSO 1990, c C.43, s 137.1(7)-(9).
[5] See Courts of Justice Act, RSO 1990, c C.43, s 137.2(3): “The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served.”
[6] Canadian Thermo Windows Inc. v Seangio, 2021 ONSC 6555 at para 81.
