Supreme Court of Canada provides further guidance on anti-SLAPP laws
The Supreme Court of Canada released its latest decision interpreting anti-SLAPP legislation in Canada. A 6-1 majority of the Court in Hansman v Neufeld, 2023 SCC 14 restored an order dismissing a plaintiff’s claim under British Columbia’s anti-SLAPP legislation. The Court’s decision centered on the part of the analysis that calls for the balancing of the public interest in protecting the defendant’s impugned expression against the plaintiff’s right to protect their reputation. The Court had specific reference to Charter jurisprudence under ss. 2(b) and 15(1) in determining the level of protection that should be afforded to certain expressions. In particular, where the impugned expression is “counter-speech” intended to respond to ignorant or harmful expressions against a vulnerable or marginalized group, that may weigh more heavily in the balancing exercise in favour of protecting that speech.
The decision provides further guidance on the test for anti-SLAPP motions first set out by the Court in 1704604 Ontario Ltd. v. Pointes Protection Association and Bent. v. Platnick - decisions we have previously written about here.
Section 4 of the Protection of Public Participation Act
SLAPP suits – or Strategic Lawsuits Against Public Participation – are actions typically brought by persons subject to public criticism in an effort to silence or intimidate their critics. A number of Canadian provinces have introduced legislation seeking to address these types of suits in Canada.
In 2019, British Columbia introduced the Protection of Public Participation Act (the Act), legislation “nearly identical” to sections. 137.1 of the Courts of Justice Act in Ontario. The Act permits a defendant to move for an order dismissing a proceeding against them if it can satisfy the court that the proceeding arises from an expression that relates to a matter of public interest. If it does so, the burden then shifts to the plaintiff to satisfy both the “merits based hurdle” and the “public interest hurdle” (as they were described in Pointes):
- Merits based hurdle: the plaintiff must satisfy the court that there are “grounds to believe” that:
- The proceeding has substantial merit, and
- The defendant has no valid defence in the proceeding.
- Public interest hurdle: Plaintiffs must satisfy the court that the harm they are likely to have suffered or are likely to suffer due to the defendant's expression outweighs the public interest in protecting that expression.
The plaintiff, a public school board trustee in British Columbia, posted online criticisms of a provincial government initiative designed to equip educators to instruct students about gender identity and sexual orientation. His comments were controversial and sparked a public backlash and calls for his resignation. The defendant, a teacher and former president of the British Columbia Teacher’s Federation, responded to these statements saying, among other things, that the plaintiff’s views were bigoted and transphobic, and questioned his suitability to hold public office. The plaintiff sued for defamation. The defendant responded with an anti-SLAPP motion. The chambers judge dismissed the plaintiff’s claim, finding that (a) the defendant had a valid fair comment defence, and (b) the public interest in protecting the defendant’s expression outweighed the harm allegedly suffered by the plaintiff. The British Columbia Court of Appeal disagreed with both findings and set aside that decision.
The Supreme Court’s decision
A majority of the Court allowed the appeal and dismissed the plaintiff’s defamation action. The Court found that the chambers judge correctly concluded that the public interest weighing exercise favoured the defendant and that the plaintiff could not show that the defendant’s fair comment defence was invalid.
In reiterating the applicable test on an anti-SLAPP motion, as set out in Pointes, the Court expressly held that lower courts have the discretion to consider either the merits prong or the public interest prong of the test first. The majority also reiterated that the weighing of the public interest is at the core of the analysis.
The Court’s primary focus was on the public interest hurdle. Its weighing analysis rested on three main issues: (a) the harm suffered by the plaintiff, (b) the potential chilling effect on the plaintiff’s speech if his action was dismissed, and (c) the public’s interest in protecting the defendant’s expression.
On the issue of harm, the Court explained that, while damages are presumed in defamation law, the presumption of damages is insufficient for the weighing exercise required by the public interest hurdle. Otherwise, the test would presumptively favour plaintiffs and render the weighing exercise meaningless. Accordingly, a plaintiff must lead evidence that enables the judge to infer that there is a likelihood of harm sufficiently serious to outweigh the public interest in protecting the defendant’s expression. The Court also emphasized the importance of proving a causal link between the defendant’s statements and the alleged harm suffered – especially where, as in this case, the defendant was one of several voices speaking out against the plaintiff. The Court found that the plaintiff had lead virtually no evidence of the harm he allegedly suffered or a causal link with the defendant’s statements.
The Court forcefully rejected the Court of Appeal’s argument that the Chambers Judge ought to have considered the “chilling effect” dismissing the proceeding would have on others like the plaintiff who wished to sue to protect their reputation. The Court held that the relevant chilling effect underlying anti-SLAPP legislation is the potential disincentive to persons who may otherwise speak up on matters of public interest, not to those who may wish to sue in defamation. The Court of Appeal’s finding “turned the concept on its head”. The Court emphasized that there is no chilling effect in barring potential plaintiffs from silencing their critics and collecting damages through a defamation suit.
Finally, and most noteworthy, the Court found that the weighing exercise strongly favoured protecting the defendant’s speech. The majority identified the defendant’s speech as “counter-speech” that was intended to counter harmful expressions against a vulnerable and marginalized group (in particular transgender youth) with an informed or compassionate response. It ruled that counter-speech is in close proximity to the values at the core of s. 2(b) of the Canadian Charter of Rights and Freedoms. The Court went on to note that counter-speech motivated by the defence of a vulnerable or marginalized group also engages the core values of s. 15(1)’s equality protections.The Court affirmed its view that transgender Canadians are one of the most marginalized groups in Canadian society. Within this context, the Court found that there was a great public interest in protecting the defendant’s impugned speech in this particular case.
This decision provides important clarification on the approach to anti-SLAPP motions. The Court definitively found that, in resisting an anti-SLAPP motion or application, plaintiffs are required to lead evidence of specific harm they have suffered, as well as evidence that the harm was caused by the defendant’s statements; plaintiffs cannot simply rely on the presumption of harm to meet their onus.
The decision is also important for its finding that Charter principles, including s. 15 equality guarantees, may render certain communications more worthy of protection under the public interest hurdle of the test. The nature of the impugned expressions at issue, which the Court held were borne of a desire to counter expressions perceived to be prejudicial to transgender Canadians, was a critical factor in the Court’s decision.