Risk Management and Crisis Response Blog

Ontario Court of Appeal applies “anti-SLAPP” framework to dismiss negligence claim

Jan 21, 2021 7 MIN READ
Authors
Kevin O’Brien

Partner, Disputes, Toronto

Graham Buitenhuis

Associate, Disputes, Toronto

The Court of Appeal for Ontario has just released a pair of noteworthy decisions [PDF] on Ontario’s anti-SLAPP legislation. They provide a useful illustration of how this powerful procedural tool can be used not only in defamation cases, but in any case (including negligence claims) that arise out of or relate to an expression on a matter of public interest.  

The anti-SLAPP legislation

SLAPP suits – or Strategic Lawsuits Against Public Participation – are actions brought by persons subject to public criticism in an effort to silence or intimidate their critics (who are often of significantly lesser financial means). In 2015 – in an effort to address the growing number of these types of suits – the Ontario Legislature enacted the Protection of Public Participation Act, 2015, which in turn introduced sections 137.1 to 137.5 to Ontario’s Courts of Justice Act (the “CJA). Section 137.1 provides an expedited, summary mechanism for defendants of SLAPP suits to seek to have those actions dismissed in a relatively expedient and less expensive manner. We have previously written about the Supreme Court’s recent rearticulation of the test under the anti-SLAPP legislation here.

Section 137.1 of the CJA allows a defendant to move at any time after a proceeding is commenced for an order dismissing the proceeding. To have the proceeding dismissed, the defendant must first “[satisfy] the judge that the proceeding arises from an expression made by the [defendant] that relates to a matter of public interest”.

The onus then shifts immediately to the plaintiff, who must satisfy the judge that there are “grounds to be believe” that:

  • the proceeding has substantial merit; and
  • the defendant has no valid defence in the proceeding.

The plaintiff must then also satisfy the judge that the harm likely to be suffered or that has been suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

A failure by the plaintiff to clear either hurdle will lead to a dismissal of its action.

Background to the cases

These decisions arose out of a 2017 broadcast of the CBC’s Marketplace, featuring an investigative report into the content of fast-food restaurant chicken sandwiches. The report was based in part on testing conducted at a Trent University lab, and Trent personnel appeared in the broadcast. The report alleged that Subway chicken sandwiches contained only slightly more than 50% chicken. The conclusion received significant attention in U.S. media (even making its way into a joke on Saturday Night Live). Subway disputed the reporting and brought claims against the CBC and Trent in defamation, as well as a negligence claim against Trent for its testing. Trent brought an anti-SLAPP motion to dismiss only the negligence claim against it (i.e., not the defamation claim), and the CBC brought an anti-SLAPP motion to dismiss the defamation case against it.

The motion judge, who did not have the benefit of the Supreme Court’s recent decisions, dismissed Trent’s motion on the principal basis that the negligence claim did not arise from an “expression that relates to a matter of public interest”, since it was based on the quality of Trent’s laboratory testing and not the reporting of the results.

The motion judge allowed the CBC’s motion and dismissed Subway’s defamation claim against it, finding that Subway had failed to establish that there were grounds to believe the CBC did not have a valid defence and that the public interest in allowing its claim to continue outweighed the public interest in protecting the CBC’s expression.

Trent and Subway both appealed. The Court of Appeal allowed both appeals, dismissing the negligence action against Trent, but reinstating the defamation action against the CBC.

The Trent decision

There were two main issues on Trent’s appeal:

  • Did the negligence claim (separate and apart from the defamation claim) arise from an expression on a matter of “public interest”?
  • Did Subway satisfy its burden of showing that there were grounds to believe its claim had substantial merit?

This case was unique in that the overwhelming majority of cases invoking the anti-SLAPP legislation are defamation claims arising out of an obvious expression, whereas the primary issue here was whether the negligence claim arose from an expression at all. The Court of Appeal reiterated earlier findings that s. 137.1 is not limited to defamation claims, but can apply to any claim that targets an expression. The Court held that it was not the quality of the testing alone, but the subsequent expression of the results of that testing, that gave rise to the lawsuit. The Court also found that the expression was by its very nature a matter of public interest. This was sufficient to satisfy the plaintiff’s threshold requirement.

However, on the issue of whether there were grounds to believe that Subway’s claim had substantial merit, the Court held that the negligence claim would obviously fail because Trent did not owe Subway a duty of care. The Court noted that at its core, Subway’s claim alleged that Trent carelessly performed a service – testing – and carelessly communicated its faulty results. As it was a claim for pure economic loss, Subway had to establish a duty of care under the heightened principles set out by the Supreme Court in Deloitte & Touche v Livent Inc (Receiver of).  The Court rejected Subway’s argument that a lab owes a duty of care to a company whose products it tests, regardless of who asks for the results of those tests. While Trent may have understood that the results of its tests could harm Subway, this was insufficient to establish the requisite close relationship to justify imposing a duty of care. On this basis, the Court found that Subway had failed to demonstrate that there were grounds to believe its claim had substantial merit, allowed the appeal, and dismissed the negligence claim against Trent.

The CBC decision

The Court granted Subway’s appeal against the CBC, and reinstated its action. There were two issues on appeal:

  • Were there grounds to believe that the CBC has no valid defence in the proceeding?
  • Did the public interest favour dismissing Subway’s action against the CBC?

The parties agreed that the communications were expressions on matters of public interest and that there were grounds to believe the proceeding had substantial merit. The Court held that the motion judge (who did not have the benefit of the recent Supreme Court decisions) applied too strict a test at the “no valid defence” stage, and concluded that a reasonable trier might find that the CBC had failed to take reasonably diligent steps to validate the accuracy of the statements it made.

On whether the public interest in permitting the proceeding to continue outweighed the public interest in protecting the CBC’s expression, the Court held that the public interest supported allowing the claim to continue. The broad dissemination of the allegedly false statements about Subway’s chicken sandwiches permitted the Court to infer that Subway likely suffered significant reputational harm (and there was also a basis for this in Subway’s evidence of harm). The Court also held that the case did not bear the hallmarks of a SLAPP suit, in that there was no evidence of an ulterior motive or otherwise improper purpose on Subway’s part in bringing the action.

Takeaways

The Trent decision is another helpful illustration of the breadth of claims to which the anti-SLAPP legislation may apply, so long as they relate to expressions on matters of public interest. Both decisions also provide helpful applications by an appellate court of the Supreme Court’s recent rearticulation of the anti-SLAPP test. We will continue to track the defamation actions as they proceed.