Radnoff: OCA's anti-SLAPP guidance helpful to a limited extent
By Kirsten McMahon, Associate Editor
The Ontario Court of Appeal’s decisions in six cases related to the Protection of Public Participation Act highlight that plaintiffs must approach anti-SLAPP motions seriously and respond to them in a fulsome manner, Toronto commercial litigation and defamation lawyer Brian Radnoff tells AdvocateDaily.com.
The legislation — which amended various statutes including adding s. 137.1-137.4 of the Courts of Justice Act — is aimed at combating the apparent problem of “Strategic Lawsuits Against Public Participation” (SLAPP). The legislation, he says, permits defendants to move to have a plaintiff’s action dismissed when it arises from an expression that relates to a matter of public interest.
Radnoff, a partner with Dickinson Wright, has frequently noted that more direction from the province’s top court was needed, particularly around the standard of proof the responding party has to meet, so he's pleased these decisions were released.
“It's very important because s. 137 motions to dismiss these types of claims have become fairly commonplace. There was disagreement in lower court decisions on the appropriate test to be applied, so the court’s substantive analysis is helpful — but to a limited extent,” Radnoff says.
In one of its decisions, the appeal court drilled down into the threshold requirement and the applicable standard of proof, ruling that public interest evaluations required under s. 137.1(4)(b) can’t be reduced to an “arithmetic-like calculation” and assessments are qualitative and subjective.
“If a motion judge provides full reasons, an appeal court must defer to the motion judge’s balancing of the competing interests under s. 137.1(4)(b), absent an identifiable legal error, or a palpable and overriding factual error,” Justice Justice David Doherty wrote for the unanimous panel.
“Deference is important, as there is no reason to think that a simple recalibration of the competing interests by an appeal court will provide a more accurate assessment.”
Radnoff says, as a result of the broad nature of the test, plaintiffs will have to approach these pretrial procedures as if they were summary judgment motions.
“They have to put in very good and complete record,” he says. “A plaintiff will have to respond in a very full way to any potential defence raised by the defendants and they're going to have to adduce the best evidence they can provide on damages.
“The bottom line is that plaintiffs can succeed,” he says. “Maybe not the majority of the time but they certainly succeed in a number of these motions.”
One common thread that emerges from this handful of decisions, says Radnoff, who was not involved in these matters and comments generally, is that it confirms this is defendant-friendly legislation.
“Anti-SLAPP motions are an important tool for defendants to stop defamation proceedings against them,” he says. “It's hard to criticize the appeal court for interpreting the legislation in a manner that, frankly, is consistent with its goals.