Last month, the Ontario Superior Court of Justice released its decision in Laurie Thatcher-Craig v The Corporation of the Township of Clearview[1] (Thatcher-Craig”), adding to the list of recent anti-SLAPP decisions in which Ontario courts have considered whether they can use the anti-SLAPP mechanism to dismiss only part of an action.
By now, the anti-SLAPP mechanism is relatively well-known as a tool by which courts may grant an early dismissal of so-called strategic lawsuits against public participation (more commonly known as “SLAPPs”). On their face, the anti-SLAPP provisions, contained in s. 137.1 of the Courts of Justice Act, appear to direct that an entire proceeding be dismissed where the applicable test is met. However, throughout 2021, courts in a number of cases have indicated that the provisions can be used to dismiss only certain claims in an action, as opposed to the full proceeding, in appropriate circumstances. For example:
- In Subway Franchise Systems of Canada, Inc. v Canadian Broadcasting Corporation,[2] the Court of Appeal for Ontario applied the anti-SLAPP mechanism to dismiss a negligence claim, leaving a defamation claim intact. However, the court did not specifically address the issue of partial anti-SLAPP motions. For more detail on this decision, see my blog post here.
- In Schwartz et al. v Collette,[3] the Ontario Superior Court of Justice conducted a statutory interpretation exercise and concluded that the anti-SLAPP mechanism ought to be used to dismiss only those claims that meet the specified test. For more detail on this decision, see my blog post here.
Thatcher-Craig is a recent addition to this list. The case arose out of a planning dispute between the plaintiff farmers and the defendant township.
The plaintiffs sought to expand their business to include a brewery, and submitted a Site Plan application to the township. At an in camera Council meeting, the township determined that the plaintiffs’ intended business was not a permitted use within the current zoning. Subsequently, the local newspaper printed an article about the plaintiffs’ proposed brewery. Some residents wrote to the township expressing comments about the plaintiffs’ plans. One of those comments was openly racist. The township posted all comments received on its website, along with the plaintiffs’ Site Plan application, without reviewing, vetting, or editing the comments.
Those comments were prominent in Google search results for the plaintiffs’ business, and they experienced a drop in customer contract renewals. They then started an action against the township for over $11 million in damages, making claims in defamation, negligence, and breach of fiduciary duty. The township brought an anti-SLAPP motion, seeking to have the action dismissed.
The court began its analysis by considering the “all or nothing” structure of the anti-SLAPP regime. The court held that a “more consistent and fair approach” is to interpret the statutory provisions as permitting the dismissal of “a proceeding or portion thereof”, consistent with recent cases on the issue.
The court proceeded to assess the three causes of action in the plaintiffs’ claim, and whether the anti-SLAPP test was met in relation to each of them. The township met its burden to establish that the plaintiffs’ defamation and negligence claims, which related to the public comments posted on the township’s website, arose from expressions on a matter of public interest; however, the plaintiffs’ claim for breach of fiduciary duty, which related more generally to the township’s treatment of the plaintiffs in the planning application process, did not meet that standard and therefore would not be dismissed under the anti-SLAPP regime.
Moving on to the plaintiffs’ burden, the court found that the plaintiffs’ negligence claim did not have substantial merit because the township owed no duty of care to the plaintiffs, and therefore would be dismissed. The defamation claim did have substantial merit, and the plaintiffs established that the township had no valid defences. Concluding with a public interest weighing, the court held that permitting the action to continue would not undermine public participation, as the plaintiffs’ claims related not to the public comments themselves, but to the township’s conduct in posting them. As a result, the plaintiffs’ negligence claim was dismissed, but their defamation and breach of fiduciary duty claims survived and were permitted to proceed to trial.
Thatcher-Craig joins the growing list of cases where courts have considered whether s. 137.1 of the Courts of Justice Act permits the dismissal of part of a proceeding. Courts continue to fine-tune the proper approach to this issue. For example, in Catalyst Capital Group Inc. v West Face Capital Inc., released earlier this month, the Ontario Superior Court of Justice opined that partial anti-SLAPP motions may only be appropriate where they result in the dismissal of an entire claim / cause of action.[4] Such judicial discussion is helping to fill in the gaps of the still-developing anti-SLAPP procedure.
[1] 2021 ONSC 7352.
[2] 2021 ONCA 25.
[3] 2021 ONSC 2138.
[4] Catalyst Capital Group Inc. v West Face Capital Inc., 2021 ONSC 7957 at paras 478-484.
