On July 2, 2020, the Ontario Court of Appeal released its decision in Nanda v. McEwan.[1] This decision is the court’s most recent pronouncement on what satisfies the public interest threshold requirement in anti-SLAPP litigation.
Ontario’s anti-SLAPP legislation came into force in November 2015. The purpose of this legislation is to prevent SLAPP litigation – Strategic Lawsuits Against Public Participation. SLAPP lawsuits are brought where “those who are the target of criticism resort to litigation, not to vindicate any genuine wrong done to them, but to silence, intimidate, and punish those who have spoken out”.[2]
Anti-SLAPP legislation allows a defendant to move for an order dismissing a claim. In order to do so, the defendant must first prove that the litigation arises out of the defendant’s expression on a matter relating to the public interest. If the defendant meets this threshold, the burden then shifts to the plaintiff to demonstrate that the lawsuit has merit and its continuation is in the public interest.[3]
In Nanda, the Ontario Court of Appeal was asked to consider statements made on WhatsApp and in posters or flyers to around 200-300 individuals in the context of a 2017 election for President of the Toronto Local Canadian Union of Postal Workers (“CUPW”). The motion judge concluded that the threshold requirement (that the expressions at issue relate to the public interest) was not met. He held that local union elections are private matters and involve highly local, limited, and private interests.
The Court of Appeal reversed the motion judge on this point. It held that the motions judge “mischaracterized the context of the expressions at issue, defined the segment of the community too narrowly, and drew an unwarranted distinction between expressions made in the context of ‘private’ and ‘public’ organizations”.[4]
The court emphasized that the public interest does not depend on the size of the audience and the public interest may extend well beyond those who were direct recipients of the messages and would include other members of the Toronto Local, the broader community served by members of CUPW and the public sector.
The court also appeared to be influenced by the fact that the communications were made in the context of an election. It relied upon other anti-SLAPP litigation decisions where statements made in the course of a municipal election and federal election campaign were found to have been related to the public interest.
The Court of Appeal ultimately concluded that the plaintiff’s claim survived the merit-based and public-interest hurdles and dismissed the appeal. Nevertheless, it is clear that the court is interpreting the public interest threshold quite broadly, particularly in the context of elections. While it remains to be seen if the court will continue to interpret the public interest threshold this broadly in other contexts, it appears that most of the argument and analysis should be focused on the remaining steps of the test.
[1] 2020 ONCA 431.
[2] 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, at para. 2.
[3] Pointes, at para. 7.
[4] Nanda, at para. 34.
