Kevin O’Brien
Sep 11, 2018
The Court of Appeal for Ontario recently released its long-awaited decisions in a series of appeals addressing the limits of the province’s “anti-SLAPP” legislation. Canadian Lawyer looks at the legislation and the Court’s rulings, which included four that were considered “strategic lawsuits against public participation.”
According to Canadian Lawyer, the “purpose of the anti-SLAPP legislation is to encourage public dialogue and debate with broad participation on matters of public interest, to prevent litigation aimed at stifling public discourse and prevent a chill from the threat of legal action harming public debate.”
“This was the rigorous appellate analysis of the legislation that people were looking for,” Kevin O’Brien, a partner in Osler’s Litigation Group, tells Canadian Lawyer.
The decision “answered the big legal questions,” says Kevin, and “appropriately set out and summarized what the purpose of the legislation was and given meaning to those provisions, in a way that helps to achieve the balancing that the legislation tried to strike … most importantly, what the appropriate burden of proof was.”
Kevin points out that, in earlier cases involving anti-SLAPP motions, many felt the legislation was interpreted in a way that made it too easy for the defendants to earn a dismissal.
“The key exercise in this legislation that a judge is asked to make is one of balancing,” he says. “Not only is a legislation trying to balance the right of freedom 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.”
For more information, read Aidan Macnab’s full article “Ontario Court of Appeal decision answers 'big legal questions' on SLAPP suits.”