He expects cost and time to prevent litigants from filing anti-SLAPP motions
Canadian anti-SLAPP legislation has failed in one of its primary goals: letting the courts deal more quickly and efficiently with defamation actions, says lawyer Howard Winkler.
“There are many defendants, in particular media outlets, who choose not to use the anti-SLAPP legislation because it creates such extreme expense and delay that many are simply deciding to just let the litigation run its course. That’s a better alternative for them. But unfortunately, to not use the legislation defeats the purpose of the legislation,” says Winkler, founder of Toronto-based Winkler Law and defamation expert.
“The legislation used a number of phrases and set out a number of tests which used language which has never been traditionally considered. The problem there is that it’s just an invitation to litigation. Instead of creating certainty, where practitioners could look at the legislation and say, with a high degree of predictability, ‘I can tell you what the result will be, through the application of this legislation,’ it created great uncertainty.”
He says there has been a proliferation of Courts of Justice Act s. 137.1 anti-SLAPP motions filed in Ontario, costing the court time and resources. Similarly, BC courts are also experiencing the same thing – a problem that courts in the UK and Australia don’t suffer as their anti-SLAPP actions are handled differently.
As Winkler sees it, the Supreme Court of Canada interpreted anti-SLAPP legislation well, establishing the thresholds for the various tests, with one exception. He explains that the first test under the legislation is “Does the expression relate to a matter of public interest?” The court set a low threshold, referring to earlier court decisions, especially those on qualified privilege.
The next test, the first merit-based test, also has a low bar set for it, says Winkler. “It was a little bit more than a pleadings-motion test because not only did you have to correctly plead the cause of action, but you had to have some evidence to support each element to the cause of action. But it was a really low threshold. And so, again, that was a good thing.”
The problem, as Winkler sees it, is with the second merit-based test.
“Where I think the court, regrettably, created problems with the legislation is when it went to consideration of whether there were no valid defences. And there, instead of setting a really low threshold, they set… a really high threshold. When they interpreted that provision, it comes down to a consideration of whether each defence raised weighed more in favour of the plaintiff so that there was no valid defence.
“But by setting the test that way, it required parties to make significant arguments with respect to the merits of each and every defence pleaded because how else can you determine whether the defence weighs more in favour of one party than another without getting into a significant consideration of the underlying factual dispute? And even though the Supreme Court of Canada said it’s not intended to be a deep dive when you’re counsel to the parties, how can you do anything other than put your best foot forward?”
And when lawyers put their best foot forward, evidence mounts, cases become more complex, and costs rise. According to Winkler, costs in anti-SLAPP cases can easily be $100,000 or more. He says that courts recognize the problem, and in one instance, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, Justice Sarah Pepall of the Court of Appeal for Ontario provided guidance on cost awards. She wrote: “With this direction in mind and recognizing that an anti-SLAPP motion is meant to be efficient and economical, I would suggest that, as a guideline, the costs of such a motion should not generally exceed $50,000 on a full indemnity basis, although there will be exceptions and motion judges always have the power to award less, more or nothing as they see fit in the circumstances of each case. If the parties and the motion judge focus on the purposes that animate the anti-SLAPP provision, the inquiry will not generally be a difficult one for a motion judge. Indeed, typically, the conclusion should be obvious and one readily reached by a motion judge.”
She continued: “I would also add that the cost of litigation is a plague that has infected our system of justice and serves to undermine its efficacy. Here, the Legislature enacted a provision designed to help people avoid a costly defamation lawsuit and preserve the opportunity for public discourse and expression, but at the same time, allow legitimate actions to proceed. The procedure was to be efficient and inexpensive. Ironically, a procedure intended to avoid costly, unmeritorious, protracted defamation lawsuits has developed into a platform for sometimes costly, unmeritorious and protracted litigation. This is not to say that anti-SLAPP motions should not be brought, but rather, the parameters of the ensuing litigation should be limited in scope. Providing a guideline for costs may serve to dampen the enthusiasm, no doubt well-intentioned, to over-litigate an anti-SLAPP motion.”
Winkler understands the intent of the guidance, but he still sees it as a problem. He says that as a defence lawyer, he will either lose money bringing his client’s full defence to the court or have to do a “less than adequate” job in mounting the defence.
Additionally, he feels it could weaponize the use of the legislation against “little guys” who are often bullied by big corporate interests.
“The legislation says that if you’re successful as the defendant on a motion, you get full indemnity costs. It’s inconsistent with that provision to limit or provide a guidance to motion judges that, generally, the costs awarded shouldn’t exceed $50,000. I mean, what is it? Is it full indemnity? Or is it fixed? Is there a ceiling on the indemnification? It’s an example of the Court of Appeal struggling with the [effects of the] legislation to make it work consistently with the intent of the legislation, but creating problems in their judicial activism.”
While he feels that anti-SLAPP motions have caused difficulties in Canadian courts, Winkler says courts in the UK and Australia have avoided the same pitfalls. Referencing the UK, Winkler explains that the legislation “basically provided a precondition or created a new element to the cause of action of defamation. It’s really elegant and simple. It says that a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant.” That provision, in his view, solves the issue of SLAPP litigation.
Although Winkler doesn’t expect Canada to enact a similar provision, he believes that with enough people talking about the SLAPP situation, the conversation may nudge governments to make amending the legislation a legislative priority.
“The law of defamation deals with two fundamental pillars of a democratic society. One is freedom of expression and freedom of the press, which are constitutional principles, and the other is the protection of one’s reputation. And the Supreme Court of Canada has talked about that as being a fundamental principle of our society. We’re dealing with issues that go to the core and the nature of who we are as a society.
“On the other hand, we’re dealing with the law of defamation, which, for the most part, is considered to be a somewhat narrow area of law… I’m not sure that the law of defamation per se and the amendment of the law of defamation is treated with the same priority as some of the other areas of law… I would argue my first point, and that is that we’re dealing with two fundamental principles of our society, and we ought to get the balance of those two interests right. And at the moment, I don't think we do.”