January 10th, 2019
"Freedom of expression is a constitutionally protected right in Canada. The free and open expression of divergent, competing, and strong view points on matters of public interest is essential to personal liberty, self-fulfillment, the search for the truth, and the maintenance of a vibrant democracy.”1 With these words, the Court of Appeal for Ontario recently opened its discussion in a set of six decisions2 involving Ontario’s relatively new Protection of Public Participation Act, which introduced, among other things, new provisions in Ontario’s Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) aimed at encouraging and promoting public participation in debates on matters of public interest.
Unfortunately, it had become all too often the case that outspoken advocates, commentators, and critics speaking out in the public forum (whether in print, online, over broadcast media, or in the literal town square) have become the target of strategic lawsuits against public participation (“SLAPP”). Ontario’s new “anti-SLAPP” legislation provides for a summary procedure available to an individual who has been sued arising out of, or in relation to, that individual’s expression on a matter relating to the public interest. In the Court of Appeal’s sextet of decisions, the Court provided significant guidance and interpretation of these new provisions of the CJA and the application of the procedure provided for in those provisions.3
The Court of Appeal also provided some helpful commentary on what is meant by “in the public interest” and “a matter of public interest”, which can help answer the question which is the title of this article: “Have I Been SLAPP’d?” The Court explained in 1704604 Ontario Ltd. v. Pointes Protection Association that the phrase “public interest” is used in two ways in s. 137.1 of the CJA: first, “as a noun to refer to evaluations of the societal interests served by each of the defendant’s expression and the plaintiff’s claim” (s. 137.1(4)(b)); and second, to “modif[y] the word ‘matter’, which refers to the subject matter of the expression giving rise to the claim. The subject matter of the expression must be one that is ‘of public interest’” (ss. 137.1(1) and (3)).4
This leads to the question of what it means to exercise your freedom of expression on a “matter of public interest” Although “public interest” is not defined in the anti-SLAPP legislation, the Court of Appeal pointed to the Supreme Court of Canada’s decision in Grant v. Torstar Corp., 2009 SCC 61 for assistance and concluded that there is no exhaustive list of what is considered public interest; some topics will inevitably be matters of public interest while others depend on the circumstances. For example, issues involving the conduct of governmental affairs, governance and administration of public bodies, the operation of the courts, elections for public office, and environmental policy fit the category of being “inevitably matters of public interest”.
Expression on other topics may fall within the anti-SLAPP regime if, in the context the expression is made, it relates to a matter of public interest as opposed to a private dispute or a private matter about which the public is “merely curious or has a prurient interest”. In Pointes, Doherty J.A. commented “Public people are entitled to private lives. Expressions that relate to private matters are not converted into matters relating to the public interest merely because those expressions concern individuals in whom the public have an interest or involve topics that may titillate and entertain.”5
While some expressions are clearly out and others are inevitably in, the Court of Appeal emphasized that a broad reading of the phrase “public interest” is consistent with the purposes of the anti-SLAPP provisions. The Court noted that the anti-SLAPP protections do not demand that the expression actually furthers the public interest and no “qualitative assessment of the expression’s impact on the issue” is necessary. Section 137.1 of the CJA does not create a distinction among expressions based on the quality, merits, or manner of the expression: “An expression that relates to a matter of public interest remains so if the language used is intemperate or even harmful to the public interest. For example, a statement relating to a matter of public interest that is demonstrably false is nonetheless an expression relating to a matter of public interest”.6
Returning to the question posed in the title of this post, you might have been SLAPP’d if you are facing a lawsuit that arises out of your expression relating to a matter of public interest. If so, you might find protection in Ontario’s anti-SLAPP laws, which could allow you to have the lawsuit dismissed at an early stage, even if the expression did not result in positive change for the public interest.7 If you think you might have been SLAPP’d, contact a Lerners Lawyer in our Defamation Law Group to discuss your options.
21704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685; Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686; Platnick v. Bent, 2018 ONCA 687; Veneruzzo v. Storey, 2018 ONCA 688; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689; Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690.
3A full discussion of the reasoning and conclusions of the Court of Appeal in these six decisions is beyond the scope of this short post.
7See also my articles: Ontario Superior Court Applies Anti-SLAPP Law to Protect Free Expression on Public Interest Environmental Issues; Full Indemnity Costs A Powerful Deterrent in Ontario’s Anti-SLAPP Regime.