Do I file a defence or bring a motion to dismiss a SLAPP case?
Ontario enacted an anti-SLAPP statute to stop “strategic lawsuits against public participation” defamation cases in 2015.
In United Soils Management Ltd. v. Katie Mohammed, 2017 ONSC 904, COURT FILE NO.: CV-16-560261, the Ontario Superior Court decided that since the defendant filed her motion to dismiss before she filed her Statement of Defence, she could not later file her defence until after her motion was heard. In the end, Justice Penny ruled:
[23] Accordingly, I grant the appeal. The statement of defence and counterclaim ought not to have been delivered in the action after the defendant brought her motion to dismiss under s. 137.1. That step was contrary to s. 137.1(5) and must be set aside. However, the defendant shall be entitled to delivery a supplementary affidavit limited to attaching her proposed defence and counterclaim as an exhibit. This shall be done within 7 days. The plaintiff is at liberty to file a supplementary affidavit limited to filing its proposed reply and defence to counterclaim. This shall be done within a further 7 days. Each party may conduct one additional hour of cross-examination limited to new issues, not previously examined on, arising solely out of the proposed pleadings. There shall be no further motions before the return of the anti-SLAPP motion, subject only to the direction of the judge hearing the anti-SLAPP motion.
Costs
[24] The plaintiff was successful on the motion. However, it was an entirely technical and Phyrric victory given my disposition. The plaintiff turned a molehill into a mountain. The costs of this motion are fixed in the amount of $7,500 inclusive of all fees, disbursements and applicable taxes, payable to the defendant in the cause.
United Soils Management Ltd. v Katie Mohammed, 2017 ONSC 904
Katie Mohammed had been hit with the libel suit after she posted comments online regarding a gravel pit in her community.
Subsection 9 of the anti-SLAPP provisions of the Courts of Justice Act, s. 137.1, allows the court to award damages if the judge finds the plaintiff brought the proceeding in bad faith or for improper purpose.
In the end, Katie Mohammed won her motion to dismiss and the Justice Lederer awarded her an additional $7500 in damages.
See the details in these articles:
How an Ontario mom fended off a $120K libel lawsuit over her Facebook posts
Stouffville woman awarded damages in SLAPP case
http://canadianlawyermag.com/legalfeeds/3941/stouffville-woman-awarded-damages-in-slapp-case.html
Sabrina Callaway represented Katie Mohammed.
Big win for @sotosllp as court dismisses defamation action and awards damages to our client under anti-#SLAPP law. https://t.co/rY00vCm1RC
— David Sterns (@david_sterns) July 26, 2017
Anti-SLAPP statute amended the Courts of Justice Act
This anti-SLAPP statute amended the Courts of Justice Act by inserting section 137.1:
Dismissal of proceeding that limits debate
Purposes
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.
Definition, “expression”
(2) In this section,
“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. 2015, c. 23, s. 3.
Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c. 23, s. 3.
No dismissal
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been 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. 2015, c. 23, s. 3.
No further steps in proceeding
(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.
No amendment to pleadings
(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,
(a) in order to prevent or avoid an order under this section dismissing the proceeding; or
(b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3.
Costs on dismissal
(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.
Costs if motion to dismiss denied
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3.
Damages
(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate. 2015, c. 23, s. 3.
Section Amendments with date in force (d/m/y)
2015, c. 23, s. 3 – 03/11/2015
Procedural matters
Commencement
137.2 (1) A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced. 2015, c. 23, s. 3.
Motion to be heard within 60 days
(2) A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court. 2015, c. 23, s. 3.
Hearing date to be obtained in advance
(3) The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served. 2015, c. 23, s. 3.
Limit on cross-examinations
(4) Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants. 2015, c. 23, s. 3.
Same, extension of time
(5) A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice. 2015, c. 23, s. 3.
Section Amendments with date in force (d/m/y)
2015, c. 23, s. 3 – 03/11/2015
Appeal to be heard as soon as practicable
137.3 An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal. 2015, c. 23, s. 3.
Section Amendments with date in force (d/m/y)
2015, c. 23, s. 3 – 03/11/2015
Stay of related tribunal proceeding
137.4 (1) If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal. 2015, c. 23, s. 3.
Notice
(2) The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),
(a) notice of the stay; and
(b) a copy of the notice of motion that was filed with the tribunal. 2015, c. 23, s. 3.
Duration
(3) A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4). 2015, c. 23, s. 3.
Stay may be lifted
(4) A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,
(a) the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or
(b) the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay. 2015, c. 23, s. 3.
Same
(5) A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal. 2015, c. 23, s. 3.
Statutory Powers Procedure Act
(6) This section applies despite anything to the contrary in the Statutory Powers Procedure Act. 2015, c. 23, s. 3.
Section Amendments with date in force (d/m/y)
2015, c. 23, s. 3 – 03/11/2015
Application
137.5 Sections 137.1 to 137.4 apply in respect of proceedings commenced on or after the day the Protection of Public Participation Act, 2015 received first reading. 2015, c. 23, s. 3.
Section Amendments with date in force (d/m/y)
2015, c. 23, s. 3 – 03/11/2015
Courts of Justice Act: https://www.ontario.ca/laws/statute/90c43