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Keeping Tabs October 2018

Stay up-to-date on news and events from our Young Advocates' Standing Committee (YASC) with Keeping Tabs.  In this issue: Chair Chat - Victoria Creighton, Osler, Hoskin & Harcourt LLP In The News Legislation Update - Julie Mouris, Conway Baxter Wilson LLP/s.r.l. YASC Report - Carlo Di Carlo, Stockwoods LLP Barristers Interview - Compiled by Alexandra Shelley, Torys LLP YouTube Series - Erin H. Durant, Borden Ladner Gervais LLP

Stay up-to-date on news and events from our Young Advocates' Standing Committee (YASC) with Keeping Tabs. 

In this issue:
Chair Chat - Victoria Creighton, Osler, Hoskin & Harcourt LLP
In The News
Legislation Update - Julie Mouris, Conway Baxter Wilson LLP/s.r.l.
YASC Report - Carlo Di Carlo, Stockwoods LLP Barristers
Interview - Compiled by Alexandra Shelley, Torys LLP
YouTube Series - Erin H. Durant, Borden Ladner Gervais LLP

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LEGISLATION UPDATE<br />

First wave of Ontario Court<br />

of Appeal rulings on<br />

anti-SLAPP legislation<br />

Julie Mouris, Conway Baxter Wilson LLP/s.r.l.<br />

Introduction<br />

On August 30, <strong>2018</strong>, the Court of Appeal for Ontario released six<br />

highly-anticipated decisions interpreting Ontario’s anti-SLAPP [Strategic<br />

Litigation Against Public Participation] legislation. 1 Section<br />

137.1 of the Courts of Justice Act, in force since the fall of 2015, allows<br />

a defendant in a proceeding to bring a motion, at any time after the<br />

proceeding has been commenced, to have the action dismissed. This<br />

tool is commonly used in defamation cases. The Court of Appeal has<br />

clarified the application of the two-part test under s. 137.1(3) and (4).<br />

The Two-Part Test: sections 137.1(3) and (4)<br />

First, under s. 137.1(3), a defendant must satisfy<br />

the judge that the proceeding arises from<br />

an expression that is a matter of public interest.<br />

Second, if the defendant succeeds, the<br />

onus shifts to the plaintiff under s. 137.1(4) to<br />

satisfy the judge that:<br />

(a) there are grounds to believe that,<br />

(i) the proceeding has substantial<br />

merit, and<br />

(ii) the moving party has no valid defence<br />

in the proceeding; and<br />

(b) the harm likely to be or have been suffered<br />

by the responding party as a result<br />

of the moving party’s expression is sufficiently<br />

serious that the public interest in<br />

permitting the proceeding to continue<br />

outweighs the public interest in protecting<br />

that expression.<br />

The Court of Appeal held that in assessing<br />

the “merits-based hurdle” (s.<br />

137.1(4)(a)), a judge must avoid taking<br />

a deep dive into the ultimate merits of<br />

the claim and the defences. Rather, the<br />

judge must determine in a preliminary<br />

way whether a trier of fact could reasonably<br />

conclude that the claim has a<br />

real chance of success, and that none<br />

of the defences advanced would succeed.<br />

The applicable standard of proof<br />

for both inquiries is the balance of<br />

probabilities.<br />

Of particular interest is the Court’s<br />

interpretation of the “public interest<br />

hurdle” (s. 137.1(4)(b)), which involves a<br />

balancing test of harm. Justice Doherty<br />

described that provision as “the heart<br />

of Ontario’s Anti-SLAPP legislation. The<br />

section declares that some claims that<br />

target expression on matters of public<br />

interest are properly terminated on a s.<br />

137.1 motion, even though they could<br />

succeed on their merits at trial.” 2 The<br />

Court held that to demonstrate harm,<br />

a plaintiff must show a causal link between<br />

the impugned expression and<br />

the alleged damages, and that bald allegations<br />

of damages in pleadings or<br />

affidavits will not be sufficient.<br />

Overall, the Court has given effect to<br />

the purpose of the anti-SLAPP legislation,<br />

which is to encourage expression<br />

on matters of public interest while balancing<br />

the protection of reputation.<br />

Justice Doherty captured the spirit of<br />

the legislation well: “not every foot over<br />

the defamatory foul line warrants dragging<br />

the offender through the litigation<br />

process. By enacting s. 137.1, the Legislature<br />

acknowledged that, in some<br />

circumstances, permitting the wronged<br />

party to seek vindication through litigation<br />

comes at too high a cost to freedom<br />

of expression.” 3<br />

10 11

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