In the recent decision, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, the Ontario Court of Appeal (“ONCA”) provides welcome guidance on s. 137.1 of the Courts of Justice Act, a provision introduced in 2015 to prevent strategic lawsuits against public participation (“SLAPP”).
The decision under review by the ONCA is that of a judge’s dismissal of a motion brought by the appellants under s. 137.1 (“anti-SLAPP motion”). In particular, the appellants took issue with the motion judge’s conclusion that the plaintiff had proven sufficient harm caused by the defamatory statements. The appellants alleged that the motion judge failed to properly weigh the harm to the plaintiff against the public interest in protecting the appellants’ expression on matters of public interest.
In dismissing the appeal, the ONCA found no reviewable error in the motion judge’s analysis, and advised that the motion judge “correctly described the legal principles applicable to the third part of the test on an anti-SLAPP motion” and “made numerous findings of harm and causation”. The motion judge also properly engaged in the weighing exercise contemplated by s. 137.1 by weighing the harm to the plaintiff arising from the alleged defamation against the public interest in protecting the appellants’ expression on matters of public interest. The ONCA concluded that the “motion judge stepped back and determined what this anti-SLAPP motion was all about” and thus “he did what he was supposed to do”.
The ONCA advised that unfortunately the cost of litigation is “a plague that has infected our system of justice and serves to undermine its efficacy”, and in particular when it comes to anti-SLAPP motions, the regime which was meant to be efficient and inexpensive, and to prevent “costly, unmeritorious, protracted defamation lawsuits” has ironically itself “developed into a platform for sometimes costly, unmeritorious and protracted litigation”.
With that in mind, and in the face of a claim for costs by the appellants of $376,567.78, the ONCA opined that costs of anti-SLAPP motions should not generally exceed $50,000 on a full indemnity basis (as the procedure was meant to be “efficient and inexpensive”). The ONCA left it open to judges to use their discretion on such motions, and for judges to award more or less than the $50,000 general rule.
To learn more, see our online defamation webpage, our online takedown webpage, our injunction webpage and our other blogs on defamation related matters.
At Gilbertson Davis LLP, our lawyers can assist in matters involving the removal of defamatory material from the internet. Our lawyers can represent you, your business, company, partnership or corporation in your defamation dispute, whether you are the person being defamed or the alleged defamer. Such representation may include claims or the defence of claims for particular losses or damages additional to damages for defamation itself. Gilbertson Davis LLP lawyers have experience in Defamation, Civil Litigation, Business Torts, Business Litigation, Arbitration and Mediation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients on defamation disputes. Please contact Gilbertson Davis LLP to schedule a consultation.
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