Law Times

Law Times • OcTOber 2, 2017 Page 11 www.lawtimesnews.com Cases include a constitutional challenge Wave of anti-SLAPP rulings to come BY SHANNON KARI For Law Times T he Ontario Court of Appeal is expected to is- sue rulings this fall in a half-dozen cases related to the province's so-called anti- SLAPP legislation, which was enacted in the fall of 2015. The cases, including a consti- tutional challenge to the provi- sions in one of the appeals, were all heard at the same time at the end of June. Andrea Gonsalves, a partner at Stockwoods LLP in Toronto, says there have been different applications by Superior Court judges of legislation that is not even two years old and guidance from the Court of Appeal will be helpful. "Where do we set the needle? What is the threshold for the defendant to meet?" are some of the questions the Court of Ap- peal will hopefully answer, says Gonsalves, who specializes in civil and Charter-based litiga- tion and has previously acted for media outlets in defamation proceedings. The legislative changes, known as the Protection of Public Participation Act, are contained within the Courts of Justice Act. At the time the pro- visions were passed, the Ontario government said it was an at- tempt to reduce the risk of indi- viduals being sued for speaking out on matters of public interest — actions often referred to as "strategic litigation against pub- lic participation." David Sterns, a partner at Sotos LLP in Toronto, was part of an Ontario Bar Association working group on the provisions before they became law. "It was an attempt to help people who were targeted [by a SLAPP suit]. Often, the defen- dants in these actions do not have a lot of money," Sterns says. The legislation permits someone who is a defendant in a libel action to bring a motion to dismiss it at an early stage. The person must satisfy the court that the allegedly defamatory expression related to a matter of public interest. If that is the case, then a judge "shall" dismiss the action unless the plaintiff can persuade the court that its law- suit has "substantial merit" and "there is no valid defence to the proceeding." The plaintiff must also be able to show that the harm caused by the expression is "sufficiently serious" that the public interest is greater to continue with the proceeding than to protect the expression. "Early on, the rulings were far more pro-plaintiff," says Gon- salves. The analysis appears to have shifted in more recent decisions, she notes. She cites rulings in this area by Superior Court jus- tices Sean Dunphy and Thomas Lederer. "Their approach is consistent with the intent of the statute," Gonsalves suggests. Dunphy issued a ruling last fall in a case where a doctor who was often an expert witness filed a lawsuit against the then-pres- ident elect of the Ontario Trial Lawyers Association for post- ings she made about his credibil- ity on an association listserv. The Superior Court judge in Platnick v. Bent dismissed the libel action filed by the doctor and also a Charter challenge to the legislation (his ruling is one of the cases before the Court of Appeal this summer). The independence of experts in legal proceedings is a matter of significant public importance, stated Dunphy. He rejected the doctor's argument that whether an expression is in the public in- terest should require a "clear and convincing" standard of proof to be met. The ruling then set out the bar for the plaintiff to meet if an expression has been found to be in the public interest. "The responding party bears the burden of establishing on objective evidence that shows beyond mere suspicion and based on 'compelling and cred- ible information' both that the claim has 'substantial merit' and that there is 'no valid defence.' How high a probability of suc- cess in establishing the claim or the affirmative defence must be made out is something that will have to be worked out on a case- by-case basis," Dunphy wrote. The ruling by Lederer in United Soils Management Ltd v. Mohammed stated that the new provisions did more than "tilt the balance somewhat" in favour of expression. "The legislature created a steep hill for the plaintiff to climb before an action like this FOCUS Andrea Gonsalves says there have been different applications by Superior Court judges of legislation that is not even two years old. See Guidance, page 12 Often, the defendants in these actions do not have a lot of money. 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