In Ontario, to sue someone for defamation can be an expensive and complex process.

This is especially so due to a powerful Ontario law that allows defendants to bring a motion to quickly dismiss strategic defamation lawsuits initiated to suppress legitimate criticism and dissent (also known as Strategic Lawsuits Against Public Participation, or “SLAPP”), and then to seek their full legal costs.

If the plaintiff succeeds in fending off the defendant’s “anti-SLAPP” motion, the general presumption is that they are not entitled to any compensation of their own legal costs. This presumption on legal costs completely upends the traditional “loser pays” rule in Ontario.

Ontario’s Anti-SLAPP Law Loses Focus

The purpose of Ontario’s anti-SLAPP law was to provide defendants with a powerful tool to safeguard their freedom of expression rights, to send a warning to plaintiffs who would use legal proceedings to silence critics, and to deal with an abusive proceeding quickly and efficiently.

In reality, anti-SLAPP motions are lengthy and expensive, and although the law requires such motions to be heard within 60 days, in practice the wait can be several months, or even a year.

Where defendants have succeeded with their anti-SLAPP motions, plaintiffs have been ordered to pay eye-wateringly high legal costs, sometimes in the hundreds of thousands of dollars. The high legal costs are a consequence of the complex nature of such motions.

Due to the motions definitively dismissing defamation lawsuits if successful, it is also not uncommon to see the unsuccessful party appealing the motion judge’s decision, leading to further delay and expense at the appeal courts.

Unsurprisingly, anti-SLAPP motions have become popular with defendants, and it has created an expensive and time-consuming roadblock for plaintiffs seeking to advance a genuine defamation lawsuit.

ONCA Reasserts the Purpose Of Anti-SLAPP Motions

The Ontario Court of Appeal, in its recent decision in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, has however reaffirmed the original purpose of anti-SLAPP motions and set new limits that may give defendants some pause before bringing such motions.

Most significantly, the Ontario Court of Appeal in Park Lawn has ruled that anti-SLAPP motions should be focused on the “crux” of the litigation, and accordingly costs for the motion should generally not exceed $50,000 on a full indemnity basis.

The Court has further reaffirmed that such motions must be heard within 60 days, as required by the law.

Finally, the Court – noting the “proliferation of anti-SLAPP appeals” – confirmed that it will give deference to the motion judge’s decision, absent any error in law or a palpable or overriding error.

The Ontario Court of Appeal’s decision in Park Lawn may be the first indication that our courts are losing patience with the abundance of anti-SLAPP motions.

The decision reaffirms that the original purpose of the anti-SLAPP motion was to quickly determine whether a lawsuit’s purpose is to silence critics, and not to be an expansive examination of the lawsuit at a very early stage.

The days of extensive and expensive anti-SLAPP motions may be coming to an end, but it may take some time before we can fully appreciate the impact that this decision has on defamation proceedings in Ontario.

If you have an issue surrounding defamation that you want resolved, our litigation group would be happy to help.

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