ANTI SLAPP PROCEEDINGS: A FORENSIC FRANKENSTEIN?
ANTI SLAPP PROCEEDINGS: A FORENSIC FRANKENSTEIN?
First it is very important to read the observations made by Justice Myers about the deep flaws in the legislation and its practical application
Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555
?The “grounds to believe” standard is supposed to be a lesser or easier test to meet in order to prevent these motions from becoming massive, onerous, lengthy, costly proceedings like summary judgment motions and trial. If that was the hope, the Legislature has respectfully failed. These motions are huge as the materials in this motion show (even without cross-exanimations).
The 60 day time limit, although mandatory, is virtually never met as counsel need more time to develop their massive evidentiary records. Moreover, the statute did not provide any further resources to the court to enable it to hear these long motions that quickly in any event.[97]???
?Anti-SLAPP motions generally take at least a full day to argue and are presented as “trials in a box” (like too many long summary judgment motions). That is, the entire case is presented in full with no specific or narrow, neat issue for determination. Rather, a trial that would normally take days or weeks is presented in a several bankers’ boxes (or thousands of megabytes) of material.
[98]????The outcome of an anti-SLAPP motion can put a final end to the lawsuit. The plaintiff has every incentive to put its full case forward. If the plaintiff loses, it will never get a chance to present anything held back. Counsel have shown that they are not willing to take the risk of putting less than their client’s best foot forward only to be told that their evidence did not meet the threshold when more was available back at the office."
What is faintly breathtaking is that
1 The people drafting the anti slapp legislation could not or did not foresee this result
2 The learned commentators could not or did not foresee this result
3 Neither the Court of Appeal in any of its decisions for the past six years could not or did not foresee this result
4 The Supreme Court of Canada in 2020 could not or did not foresee this result
5 This fairly obvious conundrum percolates and in some situations floods through every Anti slapp case
6 It should and likely does percolates and in some situations floods through every POTENTIAL Anti slapp case IN THE MINDS OF THE LAWYERS ACTING FOR THE PLAINTIFFS LAWYERS
7 While the Judiciary as they did in the Ford decision may chastise the parties successful or otherwise by costs and stern language ," The outcome of an anti-SLAPP motion can put a final end to the lawsuit. " is much more important and will continue to lead to lengthier , more complex and more costly anti slapp proceedings .
""99]????As the costs run up on this motion demonstrate, despite appellate decisions calling for these motions to be something less, they are typically presented as something more."
Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 7957 (CanLII) is an example, albeit extreme, of the problems referred to by Justice Myers
In this case to comply with the legislation designed to simplify and expedite in most situations libel actions , the following forensic Frankenstein emerged
The hearing before Justice MCEWEN, involved 17 lawyers before him and involved
Two claims and a counterclaim
In the first claim of defamation . five defences were pleaded examined and assessed , justification , fair comment , privilege and responsible communication and s3 (1) of the libel and slander act
In the second claim " the WOLFPACK ACTION"
There were two claims of defamation each containing four defences
There was a claim of injurious falsehood and conspiracy to injury
There was a counter claim for defamation involving two expressions
For each of the relevant expressions Justice MCEWEN was required under the Anti slapp legislation to and did in fact examine and adjudicate upon the following questions
1 did the expression refer to a matter of public interest
2 was the merit hurdle overcome
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was the claim of substantial merit
were the defences of no merit
3 public interest weighing
did the plaintiff suffer serious harm
Did the public interest in proceeding with the libel action outweigh the public interest in protecting the expression
Justice MCEWEN, made the following succinct summaries
" [5]??????????The Catalyst Parties and West Face are significant players in the Canadian private equity and financing markets.?The Catalyst Parties have commenced a number of lawsuits against the West Face Parties.?These are outlined in greater detail below.?The Catalyst Parties have also been engaged in other litigation with various other Wolfpack Action defendants.
[6]??????????Generally speaking, both the Wolfpack Action and the Defamation Action find their genesis in three articles that were published by the Wall Street Journal (“WSJ”), as well as “tweets” that were later published by the WSJ reporter Robert Copeland (“Copeland”).?The articles were generally based on whistleblower complaints that were filed with the Ontario Securities Commission (“OSC”). The Catalyst Parties take exception to these publications which repeat, amongst other things, accusations of fraud and other inappropriate financial dealings against them. ...........
[10]???????The details surrounding these proceedings are convoluted and complex.?They were comprehensively set out by Justice Boswell in a previous proceeding: The Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 125.?I have also set out additional background facts in three previous endorsements: see The Catalyst Capital Group Inc. and Callidus Capital Corporation v. West Face Capital Inc. et al., 2021 ONSC 1140; The Catalyst Capital Group Inc and Callidus Capital Corporation v. West Face Capital Inc. et al., 2021 ONSC 1454; The Catalyst Capital Group Inc. and Callidus Capital Corporation v. West Face Capital Inc. et al., 2021 ONSC 1191.?I will borrow, as necessary, from those decisions as I set out the background facts germane to these motions.
[11]???????The motions were argued over five days.?Of significance is the fact that in advance of the motions, over 30,000 documents were produced, in addition to over 9,000 pages of affidavits and exhibits.
?Obviously, it is not possible to reference all of the documents delivered for these motions or every argument raised.
In any event,it would be improper to do so in the context of these motions given the Supreme Court of Canada’s direction precluding a deep dive into the full factual record. "
bold underlining is added
This paragraph illustrates further problems
1 There seems to be no procedure in s137.1 ( other than perhaps the scale or quantum of costs awarded ) limiting the size of the full factual record or more precisely the amount of documentary evidence that can be introduced
2 There seems to be no procedure in s137.1 proceed to enable the Judge to determine the relevance admissiblity or weight of the information introduced and included in the full factual record
3 These were proceedings which might have taken weeks if not months to try with live witnesses, opening and closing statements , arguments on substantive procedural and evidentiary issues , the action was squeezed by the legislation into a Procrustean procedural vice into a hearing of five days
4 In fact most importantly according to the directions given by the SCC , the Judges hearing the motions are precluded from "a deep dive into the factual record ". This subject will be analyzed in further blogs
Access to Justice
After doing an excellent job of sifting , condensing and analyzing the avalanche of law and evidence before him in accordance with s137.1 , Justice MCEWEN, made the following telling observation
"[464]????Although not specifically referenced in either Pointes or Bent, it seems to me that, in appropriate cases at least, the issue of access to justice can be a factor to be considered in the public interest weighing exercise under s. 137.1(4)(b).?I also believe that this is an appropriate case for the issue of access to justice to in fact be considered.
Underlining added
[465]????The multiple actions commenced by the Catalyst Parties referenced in these Reasons have consumed an enormous amount of court time.?If it was possible to add up all of the attendances, there is no doubt that many months of court time would have been consumed.?The anti-SLAPP motions themselves have taken weeks of court time, not to mention a significant amount of productions, over 30,000 documents and, days of cross-examinations.?There have been numerous appeals, leaves to appeal, and at times repetitive (the VimpelCom Action) and unpursued (the Veritas Action) litigation.???
[466]????Not only have these lawsuits also resulted in the expenditure of an inordinate amount of court time and legal fees, but, more fundamentally, they have no doubt put a strain on an already overburdened civil justice system in Ontario.?Allowing the Catalyst Parties to pursue the Wolfpack Action in all of the circumstances would be unfair to other parties trying to access our judicial system.?
[467]????To be clear, my reasons should not be viewed as precluding the Catalyst Parties from initiating future lawsuits.?However, where litigants such as the Catalyst Parties engage in repetitive, unsuccessful, and protracted litigation and, in addition, engages ethically dubious attacks on private citizens and former members of the judiciary, they run the risk of having their lawsuit dismissed.?That is exactly what I am doing here.?Indeed, as mentioned earlier, permitting the Catalyst Parties to proceed with their lawsuit in the circumstances of this case would be tantamount to condoning the litigation and associated ethically dubious investigative strategies employed by the Catalyst Parties."