December 12, 2023
Section 137.1 of the Courts of Justice Act is the provision which permits “Anti-SLAPP” motions.
SLAPP stands for “Strategic Litigation Against Public Participation”.
Public debate on matters of public interest is a part of our Charter Right of Freedom of Expression. This must be balanced against the rights of people not to be harmed by defamation or other improper allegations.
But what happens to a lawsuit that combines claims of defamation with other types of claims? Does section 137.1 require a judge to strike the entire action, or merely those claims that clearly violate the Anti-SLAPP rules?
In Schwartz v Collette, the Ontario Court of Appeal leaves that question unanswered. Which means that we need a future decision to clarify the issue.
But what do you do until then?
If you are the Defendant, you try to have the entire action dismissed. If you are Plaintiff, you try to salvage what claims you can.
The motion judge in Schwartz decided that “where certain claims are separate and distinct from claims that engage s. 137.1, the court has the discretion to permit those other claims to proceed.”
The Court of Appeal allowed the appeal, and struck the entire action, but not because of the motions judge’s approach. Instead, they take a good hard look at the claims, and determine that because they are all motivated by the desire to silence public interest expressions, all the claims ought to be dismissed, not just those related to defamation,
As a result, the entire action was dismissed.
- Anti-SLAPP motions are not just for defamation claims.
- What a court will do if there are claims that do not match the test for Anti-SLAPP, if the action is predominately struck, is for a future case.
- Courts take the protection of public debate seriously.
- Balancing this with the need to allow legitimate actions to proceed remains a developing area of law.
- To the extent that Anti-SLAPP motions are used tactically to discourage valid claims, we hope the courts will be cautious in this area -but are happy to argue Anti-SLAPP motions for defendants where appropriate.
WHAT WEILERS LLP CAN DO TO HELP YOU
At Weilers LLP, we understand the law and, more importantly, understand the art of advocacy necessary to present your case to the court in the best possible manner.
We are not afraid of hard cases. We like a challenge. If you value efficiency and effectiveness, Weilers LLP may be the right lawyers for you.