June 2nd, 2021
Since Ontario’s anti-SLAPP provisions of the Courts of Justice Act (the “Act”) came into force in late 2015, courts have released numerous decisions seeking to interpret and implement the relatively new legislative mechanism aimed at bringing an early conclusion to so-called strategic lawsuits against public participation (more commonly known as “SLAPPs”). Despite this, there remain facets of the anti-SLAPP scheme that are only just now being explored.
One of the key operative provisions in the anti-SLAPP regime is s. 137.1(3) of the Act, which requires a judge to dismiss “the proceeding” where a specific test – focused on the public interest, the merits of the action, and the parties’ respective interests – has been satisfied. In my previous post on the Ontario Court of Appeal’s decision in Subway Franchise Systems of Canada, Inc. v Canadian Broadcasting Corporation, I explained that the decision was significant in part because the court applied the anti-SLAPP provisions to dismiss only part of a proceeding, a circumstance which has arisen very rarely in the context of anti-SLAPP motions. I noted that this approach appeared to conflict with the statute’s direction that “the proceeding” be dismissed, seemingly referring to a proceeding in full. However, the court in Subway engaged in no analysis on this issue.
The Ontario Superior Court recently took on this analysis in Schwartz et al. v Collette. In that action, the plaintiff outfitting business and its owner made claims in harassment, defamation, and intentional interference with economic relations against the defendant, who had made critical comments on the internet about the plaintiffs’ conduct primarily in relation to access to a provincial park. The defendant brought an anti-SLAPP motion seeking to have the proceeding dismissed.
In its October 2020 decision, the court granted the anti-SLAPP motion and dismissed the proceeding, with the exception of the plaintiffs’ claim in harassment and one aspect of the defamation claim. The court noted that although the “impetus for the action” was the defendant’s expressions, the factual allegations underlying the harassment claim in particular were unrelated and secondary to those expressions, and had no apparent basis in public interest matters. The court questioned whether the anti-SLAPP provisions were broad enough to permit the dismissal of the entire proceeding in such circumstances, and invited further submissions from the parties on whether the harassment claim could properly be dismissed as part of the anti-SLAPP motion.
The parties proceeded to deliver further submissions on the issue, and the court released supplementary reasons in March 2021. The court concluded that it did not have discretion to dismiss claims that were not grounded in matters of public interest under the anti-SLAPP provisions, “despite having previously found that the entire action is motivated by a desire to silence public interest expression by the Defendant.”
In reaching this conclusion, the court engaged in an exercise of statutory interpretation of the term “proceeding” as used in s. 137.1(3) of the Act, looking to other provisions of the Act, other cases decided under the anti-SLAPP provisions, and the legislature’s intentions for the anti-SLAPP provisions. The court recognized several factors favouring a broad approach to the term “proceeding”, such as other provisions of the Act expressly distinguishing between a “proceeding” and “steps in a proceeding”, and case law urging a liberal and flexible approach to interpreting the anti-SLAPP provisions. However, the court also identified a number of factors favouring a narrower approach to “proceeding”, including the courts’ rejection of the use of general “hallmarks of a SLAPP” in the anti-SLAPP analysis and certain policy concerns with adopting a broad interpretation. In particular, the court expressed concern at the prospect of courts embarking on “an inquiry into the impetus for a plaintiff’s entire action at the very first stage of the analysis”. The court raised issues of potential unfairness should a plaintiff be required to demonstrate substantial merit for claims where the defendant’s underlying conduct does not engage the “public interest” purposes of the anti-SLAPP provisions. Ultimately, the court found that the legislature’s intent would be stretched too far by extending s. 137.1 to include civil claims of a personal nature and unrelated to public interest expression, even where the action as a whole appears to be aimed at the suppression of public interest expression.
Schwartz et al. v Collette marks the first time a court has engaged with the issue of whether the anti-SLAPP provisions can be used to dismiss part, but not all, of an action, and the court’s decision has the potential to significantly change the landscape of anti-SLAPP motions. The anti-SLAPP scheme has largely been viewed as defendant-friendly, offering a route to obtain early dismissal of unmeritorious claims without the evidentiary burdens of a summary judgment motion. However, as a result of the court’s decision in Schwartz, plaintiffs who seek to stifle expression may be empowered to load their proceedings with frivolous or complicated claims which superficially appear unrelated to the core underlying expressions, hoping to insulate their proceedings from dismissal in their entirety under the anti-SLAPP provisions. While the court in Schwartz explicitly recognized this risk and cautioned plaintiffs that such conduct could have substantial cost consequences, those consequences could only arise after the defendant has been required to expend further resources on the litigation. This additional expense, which could be very significant, may itself be sufficient to accomplish a plaintiff’s goal of deterring further expression – thereby defeating the purpose of the anti-SLAPP regime.
The Schwartz decision is currently under appeal, offering an opportunity for some much-needed appellate guidance on this issue. In the meantime, defendants contemplating bringing an anti-SLAPP motion should seriously weigh the risks of doing so, and consider that even a successful anti-SLAPP motion may not lead to the full dismissal of an action involving numerous causes of action with separate factual bases, even where the action as a whole was motivated by public interest expression.
 2021 ONCA 25.
 2020 ONSC 6580.
 2021 ONSC 2138.
 2021 ONSC 2138 at para 21.