ANTI SLAPP PROCEEDINGS :ONLINE REVIEWS #3 , NO VALID DEFENCE

ONLINE?REVIEWS :LIBEL ACTIONS SLAPPED?DOWN # 3

NO VALID DEFENCE

S137.1 (4) (a) of the Courts of Justice Act states as follows

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

JUSTICE MYERS made some ,at risk of professional understatement ,very cogent remarks about the gap between the objectives of the ANTI SLAPP and their practical application in the real world . As he provides a judicial imprimatur to my sense of exasperation at this gap , I will be posting his remarks frequently so as to give them the wide circulation they deserve

Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555 (CanLII)

"[96]????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.

[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.

[100]??Case management will not assist on this issue. A judge at a case conference early in the process cannot know what universe of evidence is available to counsel or whether particular evidence would be sufficient. Nor would a case management judge readily second guess the amount of evidence that counsel determines is needed in her professional judgment. By contrast, a judge at a pretrial conference right before trial can often tell if two witnesses are needed to prove the same point or if multiple experts may be too many. But that is a very different task than asking a judge at the outset of a case to determine what amount of appropriate to show “grounds to believe” that the claim has “substantial merits”?and especially that the defendant has “no valid defence in the proceeding”. The statute requires assessment of the merits of the action and any available defences on evidence. Unless a bright line test can be set for “grounds to believe” to be found or not found, expressions of the desire for everyone to do less, contain costs, and move more quickly on anti-SLAPP motions will continue to be ignored by the bar as they have been to date. "

This section generates enormous problems which I will discuss in future blogs. .In my text book I discuss this section and the defences in detail . For this blog I will simply identify the defences raised for each case. It is impossible and presumptuous to generate general principles from such a limited body of law

New Dermamed Inc. v. Sulaiman, 2018 ONSC 2517 (CanLII)???CA

fair comment

910938 Ontario Inc v. Moore, 2020 ONSC 4553 (CanLII)

[31]?????With respect to the “valid defence” element incumbent on the plaintiff, the defendants do not rely on any defences to the action upon this motion with respect to the defamation aimed at the individual plaintiff. Again, the argument of the name of the business is advanced but for the reasons already stated, I do not believe that it can succeed.?The plaintiffs have shown that at this stage, there appears to be no valid defence.?

Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555 (CanLII)

DEFENCE OF TRUTH APPLIES

[115]??Mr. Akazaki submits that I should find more than a mere suspicion that there is no valid defence and that is enough to allow the action to proceed. I find that I have more than a mere suspicion that there is a valid defence. There is a triable issue of fact on contested evidence.

DEFENCE OF FAIR COMMENT IS VALID

4 Thorman et al. v. McGraw, 2021 ONSC 7671 (CanLII) ACTION DISMISSED RENOVATION OF THEIR BATH ROOM

David Potts is a Toronto barrister specializing in defamation law .He has completed writing a text book on Anti slapp Proceedings for Irwin law . Anti slapp proceedings are changing the defamation landscape in previously unimaginable ways. They are designed to be quick, cheap and simple.In fact they are costly , complex and protracted with countless pitfalls and mine fields for the unwary He can be reached at [email protected]

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