Vitriol or Value? ONCA Provides Direction on Anti-SLAPP Analysis

  • March 17, 2023
  • Landan Peleikis

Introduction

In Thorman v. McGraw,[1] the Ontario Court of Appeal clarified section 137.1(4)(b) of the Courts of Justice Act and further narrowed the class of public expression deemed worthy of protection under Ontario’s anti-SLAPP legislation.

Background

In December 2013, the respondent entered into an agreement with the appellants to renovate her bathroom. The respondent was dissatisfied with the appellants’ work and posted highly critical online reviews about the appellants and their businesses. Some of these postings referred to the appellants as fraudsters and scammers. The appellants subsequently commenced an action against the respondent, seeking over $500,000.00 in damages for defamation. The action was dismissed after the respondent successfully brought a motion under section 137.1 of the Courts of Justice Act.[2] The appellants appealed the dismissal of their action, while the respondent cross-appealed, seeking to increase the costs awarded by the motion judge.

Section 137.1 of the Courts of Justice Act

Commonly referred to as the anti-SLAPP (strategic lawsuits against public participation) provision of the Courts of Justice Act, section 137.1 was enacted to prevent individuals from weaponizing lawsuits to silence expression on matters of public interest.[3]

A motion under section 137.1 of the Courts of Justice Act requires the moving party to establish on a balance of probabilities that (1) the underlying proceeding arose from an expression they made that (2) relates to a matter of public interest.

Once the moving party satisfies the threshold burden, the burden shifts to the responding party, who must satisfy the merits-based hurdle and public-interest hurdle. This is done by demonstrating on a balance of probabilities that (1) there are grounds to believe their claim has substantial merit and (2) that the moving party has no valid defences. The responding party satisfies the public-interest hurdle by establishing that (1) they have suffered harm or are likely to suffer harm, (2) such harm was suffered as a result of the moving party’s expression, and (3) the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation.[4]  

The underlying action will be dismissed under section 137.1 if the moving party satisfies the threshold burden and the responding party fails to satisfy both the merits-based hurdle and public-interest hurdle.[5]