Anti-SLAPP motions often an expensive endeavour when unsuccessful: report

Ontario and British Columbia continue to frequently use their anti-SLAPP legislation, according to a new report analyzing the data from every motion heard by a court in 2023.

Anti-SLAPP laws, which are only enacted in Ontario and BC, protect against strategic lawsuits against public participation (SLAPP). SLAPPs seek to intimidate and silence parties speaking, publishing, or broadcasting on issues of public concern with costly and time-consuming litigation. Defendants in a defamation suit can bring an anti-SLAPP motion to ask the court to dismiss the case.

The report found courts in Ontario and BC released 39 decisions related to their anti-SLAPP legislation.

“It's a tremendous volume of cases… It’s quite extraordinary,” says Ryder Gilliland, a litigator at DMG Advocates LLP in Toronto, whose practice focuses on commercial litigation, defamation, and privacy law.

In an anti-SLAPP motion, the moving party must first show the court that the expression giving rise to the defamation allegation related to a “matter of public interest.” The data from 2023 shows that 86 percent of moving parties met this threshold test.

If the moving party meets the threshold, the onus flips to the plaintiff to demonstrate to the court that their claim is worth pursuing, whether or not the expression is related to a matter of public interest.

To do this, the plaintiff first must demonstrate that there are grounds to believe the defamation proceeding has substantial merit. According to the report, plaintiffs were successful on this hurdle 66 percent of the time.

Next, the plaintiff must show that the defendant has no valid defence, which plaintiffs achieved in just over half of the cases.

The plaintiff’s final hurdle is the weighing element of the test. They must show that the harm resulting from the defendant’s expression is serious enough that the public interest in permitting the proceeding’s continuation outweighs the public interest in protecting the expression. As the report states, the Supreme Court of Canada called this part of the test “the heart of the legislation.” The report showed that in 57 percent of the cases, plaintiffs succeeded in the weighing exercise.

Gilliland says that a 57-percent success rate at this stage of the motion is “a bit of a failing.” Litigating an anti-SLAPP motion costs defendants around $100,000. In 43 percent of cases, defendants have spent around $100,000 and have lost the motion because the courts found that the claim should proceed.

“That's not what the idea was behind the legislation,” he says.

According to the report, both Ontario and BC’s anti-SLAPP legislation has a costs regime that “strongly favours the moving party.” If the mover is successful, they are presumptively entitled to full indemnity costs. Costs on successful motions varied from under $50,000 to $273,111 but were mostly in the $100,000-$200,000 range. Successful responding parties were awarded costs in two cases.

The moving party sought damages in five cases, and were awarded damages in one case, said the report.

In 2023, 12 appellate decisions stemming from anti-SLAPP motions were made in Ontario. In four of the five allowed appeals, the court overturned a decision dismissing an anti-SLAPP motion.

The report also assesses the media’s use of anti-SLAPP legislation. In 2023, media companies brought five motions and were successful on all of them. Media sources brought another three and were successful on two. Publishers brought two motions and succeeded in one of them.