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September 3, 2018

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Page 2 September 3, 2018 • Law timeS purposes that are outside the legitimate reach of the laws that govern electric car subsidies in Ontario." Myers called the gov- ernment's actions "arbitrary" and "egregious" and said they "singled out Tesla for reproba- tion and harm." In his conclusion, Myers said the government singled out Tes- la without providing the com- pany "any opportunity to be heard or any fair process what- soever." Myers also ordered the prov- ince to pay Tesla costs in the amount of $125,000 on a par- tial indemnity basis. Tesla had asked for $185,000 in costs on a partial indemnity basis. Myers' decision examined when the court has the author- ity to review a policy decision made by an elected government, says Ewa Krajewska, partner in the litigation practice at Borden Ladner Gervais LLP in Toronto, who was not involved in the case. "That is a pretty fundamen- tal question," Krajewska says. "And it's not always clear where that line is drawn." Tesla's lawyers referred to two statements by Ontario gov- ernment officials that they said vilified the company. On July 31, the parliamen- tary assistant to the minister of the Environment, Conserva- tion and Parks said the previous government had used the cap and trade program to balance its budget and provide "Tesla subsidies" and that the chief of staff of her department's previ- ous minister was given a job at Tesla, according to the decision. Tesla also referred to a state- ment from Premier Doug Ford, who said, "I have a message for Tesla. Stop trying to get rebates for your millionaire buddies and putting it on the backs of the hardworking people of Ham- ilton and the rest of the hard- working people of Ontario." Myers wrote in the deci- sion that Ford's interview and speeches are not admissible for the purpose of proving that the transition program had a "co- lourable or improper purpose." Nevertheless, Myers wrote, it was clear that the program had a "distinct and unique effect on Tesla" and that the effect "was known and intended through- out." Matthew Fleming, a partner at Dentons LLP, says that suc- cessfully challenging a policy the way Tesla did is difficult be- cause the government has wide discretion or wide latitude when it is exercising its discretionary authority. Evidence provided by the government, such as the letter Tesla received, can be key, says Fleming, who was not in- volved in the case. "There has to be something beyond a politician's state- ments on the issue, even if that might give a clear indication of why the government is taking a certain course of action. And often times, as was the case here, executive privilege is claimed over the documents that were generated and delivered to cab- inet or a minister, which led to a decision at issue," Fleming says. Brian Gray, spokesman for the Ministry of the Attorney General, said via email, "We are reviewing the ruling and will make a decision on how to pro- ceed in the coming days." LT — With files from Anita Balakrishnan many issues and components of the legal test." A defendant can bring an anti-SLAPP motion at the be- ginning of the trial before they have filed a statement of defence. When having done so, the de- fendant has to satisfy the judge that the suit has arisen from an expression that relates to a mat- ter of public interest. It is then up to the plaintiff to refute the public interest argu- ment, show the proceeding has "substantial merit," show the defendant is without a valid de- fence for claim of libel and show the harm of the defendant's ac- tion renders the public interest in permitting the proceedings greater than the public interest of protecting the expression. The court has confirmed the appropriate legal standards by which the plaintiff shows his claim has substantial merit and the defendant has no reasonable defence as a "regular balance of probability standards," says O'Brien. The plaintiff 's onus to show the claim has substantial merit and the defendant is without a valid defence raises the question of whether these two aspects "are within the range of reasonable conclusions, available on the re- cord," says Ben Kates, associate at Stockwoods LLP Barristers. "I think there's a question that remains as to how that analysis is going to play out," he says. Also remaining unanswered, says Kates, is the competing in- terests between the public inter- est of permitting the proceed- ings and that of protecting the expression. "The public interest evalua- tions required under s. 137.1(4) (b) cannot be reduced to an arithmetic-like calculation. It would be misleading to pretend they can be. The assessments are qualitative and, to some extent, subjective," wrote Doherty in the decision. "How is that analysis, which the Court of Appeal admits con- tains an element of subjectivity, how that's going to be f leshed out, particularly given the signal from the court that the balanc- ing of competing public interests will often be determinative of the outcome of the anti-SLAPP motion." O'Brien says Doherty made it clear in the decision that "most of these cases" will turn on the second element, where the onus is put back on the plaintiff. The decision makes clear that the plaintiff does not have to prove their opponent lacks a valid de- fence, they need to "show on the evidence that there's reasonable grounds to believe that they may not be able to make out a de- fence," O'Brien says. Those claiming defamation "must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant's free- dom of expression," Doherty wrote in the decision. "That's saying if you're going to bring a claim that encroaches on freedom of expression and matters of public interest, you better be ready to defend that right away," says Kates. "You can't just sort of start these things willy nilly and not be an- swerable for them." In earlier cases involving an- ti-SLAPP motions, many felt the legislation was interpreted in a way that made it too easy for the defendants to earn a dismissal, says O'Brien. "The key exercise in this leg- islation that a judge is asked to make is one of balancing," says O'Brien. "Not only is a legislation try- ing to balance the right of free- dom of expression with the need for people to be able to defend and protect their reputation, but it's also trying to balance how rigorous a standard a plaintiff has to meet in order not to have their action dismissed at an early stage." O'Brien says a SLAPP mo- tion, which is made under s. 137.1(1) of the Courts of Justice Act, is not meant to be a replace- ment for a trial or summary judgment motion but to oper- ate as a screening mechanism, so that unmeritorious claims are rejected at an early stage. Doherty writes that judges must "avoid taking a 'deep dive' into the ultimate merits of the claim under the guise of the much more limited merits of the required analysis." In determining whether a matter is in the public interest, the motion judge is to apply the principles from the Supreme Court case Grant v. Torstar Corp. Lawyers now have a frame- work with which they can ad- vise their clients on the risks and chances of success when it comes to whether to commence liti- gation or bring an anti-SLAPP motion, Kates says. But the test will be developed over time in future decisions, he says. "But like all of these cases, the facts are going to be what really matter. Every one of these de- cisions is going to be very fact specific," says O'Brien. "But now we know we've had an appellate court affirm what the appropri- ate legal tests and standards are so everyone knows what the rules are." LT NEWS Offices on Bloor Street/Yorkville with collegial Law Firms, full service suite. Call Teresa (416) 866-4144 ext. 225. 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