Court Grapples with Anti-SLAPP Legislation
New legislation intended to curb Strategic Lawsuits Against Public Participation (SLAPPs) was recently put to the test in a decision on a motion allowing a developer to continue its breach of contract case following an OMB hearing. This represents the first reported decision under the Protection of Public Participation Act, 2015 which was passed in November, 2015.
In 1704604 Ontario Ltd. v. Pointes Protection Association et al., representatives of a residents’ group entered into a memorandum of understanding with the would-be developer of a subdivision. The memorandum included a provision that at any hearing before the OMB, the residents’ group would not take the position that the local Conversation Authority, which provided an approval with respect to impacts to an on-site wetland, acted illegally, invalidly, or contrary to their mandate. Despite the contract, the developer alleges, a member of the residents’ group gave evidence before the OMB that the development would result in a loss of wetland and cause significant environmental damage. The Board refused the subdivision application.
Following the OMB hearing, the developer sought damages in Court for the alleged breach of contract. The residents’ group then brought a motion to dismiss the action under the anti-SLAPP legislation. The new provisions allow a Court to dismiss an action if the moving party proves that the lawsuit arises from an expression made by the person that relates to a matter of public interest. The residents’ group successfully met this burden.
The legislation then shifts the burden to the respondent, here the developer, to prove there are grounds to believe that (i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding. The responding party must further prove that the harm likely to be suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
In this case, the developer was able to show that there were grounds to believe that the breach of contract proceeding had substantial merit. Further, since a defence to the breach of contract proceeding had yet to be proffered by the residents’ group, the Court was unable to determine the existence of a valid defence. The judge resolved the test balancing the public interest in favour of the developer.
The judge was critical of the new legislation, commenting, “I was surprised to find this legislation buried in the Courts of Justice Act given the substantive nature of its provisions and the significance of the remedies provided in it. I would have thought it would be stand-alone legislation or part of the legislation to which it is most applicable, such as the Libel and Slander Act”. Also problematic was that there is no definition for the term “a matter of public interest”. Lastly, and most importantly, the Judge commented that the bar that the responding party, here the developer, must meet to save their case from early dismissal is low. In the Judge’s words, “In my view, the threshold for the responding party to meet the test … must be a low one given the significant remedies in Section 137.1 and the protection for litigants to bring legitimate claims before the court.”