Sekmadienis v. Lithuania
Closed Expands Expression
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The Court of Appeal for Ontario set aside the order of the court a quo and dismissed the action initiated by a property development company against a not-for-profit organization, finding it to be a Strategic Lawsuit to Prevent Public Participation (SLAPP) which are lawsuits brought to silence or financially punish one’s critics. The organization utilized section 137.1 of the Courts of Justice Act, 1990 to apply for a dismissal of a case brought against them by the company in response to statements the President of the organization had made questioning the environmental impact of a proposed property development. The Court held that the company had not demonstrated that its case had sufficient merit to justify overriding the public interest in allowing the organization to exercise its freedom of expression.
A Canadian property development company, 1704604 Ontario Ltd (170 Ontario), had sought permission to develop a 91-lot subdivision in the west end of Sault Ste. Marie, Ontario. 170 Ontario required the approval of the Sault Ste. Marie Region Conservation Authority (SSMRCA) and the Sault Ste. Marie City Council (City Council) (para. 14).
After 170 Ontario’s second application to the SSMRCA was successful, Pointes Protection Association (Pointes), a not-for-profit corporation formed in 2008 specifically to provide a coordinated response on behalf of some area residents to 170 Ontario’s development proposal, sought a judicial review of the SSMRCA’s decision. Pointes’s opposition to 170 Ontario’s proposed development was based on environmental concerns, and it believed that the SSMRCA’s decision was “illegal” and beyond the SSMRCA’s jurisdiction (para. 17). Meanwhile, 170 Ontario applied to the City Council for an amendment to the City’s official plan that was necessary in order to proceed with the proposed development. In July 2013, the City Council turned down the application and 170 Ontario appealed to the Ontario Municipal Board (OMB). Pointes was granted standing in this proceeding before the OMB (para. 18).
While the judicial review of the SSMRCA’s resolution and the appeal before the OMB were pending, both parties signed a Settlement Agreement (Agreement) that would dismiss the judicial review initiated by Pointes. In addition, the terms also put limitations on the future conduct of Pointes and the individual members of the executive who signed the Agreement agreeing that they would take no further legal action seeking similar relief (para. 21). The Agreement specifically stated that Pointes would no longer argue that the SSMRC’s resolutions were “illegal, invalid or contrary to the relevant environmental legislation” or that it had exceeded its jurisdiction (para. 21). The Agreement was signed by the individual members of Pointes’s executive committee and those individuals were bound by its terms (para. 19).
After the Agreement had been concluded, 170 Ontario proceeded with its appeal to the OMB and Pointes’s legal representatives called Peter Gagnon, its president and a signatory of the Agreement to testify. Gagnon testified that he believed that the proposed development would result in a significant loss of coastal wetlands, causing substantial environmental damage (para. 22). In February 2015, the OMB dismissed 170 Ontario’s appeal finding that, as Gagnon had testified, the development was “not in the public interest as it relates to the loss of coastal wetland” (para. 23). The development has therefore not proceeded.
Later in 2015, 170 Ontario sued Pointes for breach of contract, arguing that by testifying about the proposed development’s impact on the wetlands Gagnon had breached the terms of the Agreement. Pointes did not file a defense but responded with a motion under 137.1 of the Courts of Justice Act, 1990 for an order dismissing 170 Ontario’s claim. Section 137.1 was introduced into the Courts of Justice Act by the Protection of Public Participation Act 2015 and creates a pre-trial procedure by which the defendant can move for the dismissal of a claim brought about by the defendant’s expression on a matter of public interest (para. 6). Section 137.1 was an attempt by the Ontario legislature to address “Strategic Lawsuits Against Public Participation” (SLAPPs) which are generally brought by rich and powerful litigants to “silence, intimidate, and punish those who have spoken out” (para. 2). All a defendant is required to demonstrate is that their expression relates to a matter of public interest, and the plaintiff in the case then bears the onus of demonstrating that the lawsuit should be allowed to proceed because the main litigation has substantial merit and its continuance is in the public interest (para. 7). Pointes argued that Gagnon’s testimony was in the public interest because it related to the destruction of a wetland, and the Court accepted that “the lawsuit related to expression on a matter of public interest” (para. 26). As the Court found that 170 Ontario had demonstrated that the lawsuit should proceed irrespective of that public interest, it dismissed Pointes’s application and ordered the matter to proceed (para. 26).
Pointes then filed an appeal before the Court of Appeal in Ontario.
Justice Doherty delivered the judgment of the unanimous three-judge bench. The main issue before the Court was whether the lawsuit brought by 170 Ontario arguing breach of contract was a SLAPP, and if so, whether the case fell under section 137.1.
Doherty explained that this case was one of six before the court related to section 137.1, and that the Court’s analysis of the provision in this judgment would be used in its judgments in the other five cases (para. 13).
This case is the first in which the Court of Appeal analyzed section 137.1 in detail, and Doherty explained that the purpose of the provision was to create a pretrial procedure which would “quickly and inexpensively identify and dismiss those unmeritorious claims that unduly entrenched on an individual’s right to freedom of expression on matters of public interest” (para. 29). Doherty referred to the title of the legislative provision which explicitly stated that “the purpose of the legislation is to prevent the use of litigation to ‘gag’ those who would speak out or who have spoken out on matters of public interest” (para. 35).
Section 137.1(3) provides for the dismissal of a proceeding which arises from an expression made that is in public interest, but this is subject to section 137.1(4) which allows the continuation of proceedings which would otherwise be dismissed under subsection (3) if the plaintiff can demonstrate that the case has merit and that the public interest of continuing with the case outweighs the public interest in protecting the initial exercise of freedom of expression (paras. 41-42). The merit-based hurdle, in section 137.1(4)(a) has two steps: the plaintiff must demonstrate that the proceeding has “substantial merit” and that the defendant has no valid defence. The public interest hurdle, in section 137.1(4)(b) requires that the plaintiff demonstrate that the harm caused to him or her by the defendant’s exercise of expression is “sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression” (para. 43). The onus is on the defendant to prove that the expression made was in the public interest, and the onus then shifts to the plaintiff to overcome the merit-based and public interest hurdles.
Doherty noted that the purpose of section 137.1 was “crystal clear”, which was that “[l]itigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage” (para. 45). He added that the provision means that plaintiffs who claim to have been wronged by the defendant’s exercise of freedom of expression “must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression” (para. 45).
Doherty provided an analysis of the threshold that a defendant would need to meet in order to bring a section 137.1 application. He noted that the definition of “expression” in the legislation included non-verbal and private conversations but that “public interest” was not defined in the legislation. However, Doherty made it clear that section 137.1 does “not require that the expression actually furthers the public interest” and that “[a]n expression that relates to a matter of public interest remains so if the language used is intemperate or even harmful to the public interest” (para. 55). Doherty acknowledged that this is an expansive interpretation of “public interest”, but that passing this threshold test does not entitle the defendant to any relief on its own: it simply shifts the burden to the plaintiff to demonstrate that the matter has “substantial merit” and that proceeding would be in the public interest (as set out in section 137.1(4)) (para. 56).
Doherty declined to define the range of issues that would fall within “public interest” and stated that this must be determined based on the context of a specific case (para. 60). With reference to the Canadian case of Grant v. Torstar Corp. 2009 SCC 61 he stressed that a “matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest” (para. 61).
In respect of the two hurdles the plaintiff would have to address, Doherty noted that for the merits-based hurdle the plaintiff must demonstrate the merits of the case “on a balance of probabilities” (para. 68). The Judge characterized the public interest hurdle as “the heart of Ontario’s Anti-SLAPP legislation” (para. 86) because it “reflects the legislature’s determination that the success of some claims that target expression on matters of public interest comes at too great a cost to the public interest in promoting and protecting freedom of expression” (para. 68). This hurdle requires the plaintiff to demonstrate “sufficiently serious” harm as a result of the defendant’s expression, and Doherty stated, with reference to the Canadian cases of Hill v. Church of Scientology of Toronto  2 S.C.R 1130 and Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, that this harm need not be monetary and can include harm to the plaintiff’s reputation or privacy (para. 88). Doherty held that the harm 170 Ontario suffered was an interference in its reasonable expectation of finality in the litigation, and that this did constitute “harm” under section 137 (para. 89).
In examining the public interest hurdle Doherty explained that the quality and the motivation of the speaker are both relevant in determining the public interest of protecting that expression (para. 94). This is then balanced against the consequences of that expression (para. 95). Doherty noted that a court is under no obligation to address both hurdles: if the court determines that the plaintiff has “not suffered any significant harm and has brought the lawsuit to silence or punish the defendant” the court need not engage in the merit-based analysis (para. 99).
Although in respect of the present case Doherty commented that interpretations of a contract are best suited to summary judgment procedures and that this case could have been resolved through that procedure rather than by invoking section 137.1 (para. 101), he did also reject 170 Ontario’s argument that the case did not constitute a SLAPP case (para. 102). The Judge explained that in cases where litigation is brought to target expression it does not matter whether the case fits within the “traditional notion of a SLAPP” or not (para. 103).
Doherty disagreed with the court a quo’s finding that 170 Ontario’s litigation had substantial merit and so should proceed despite the public interest of Gagnon’s expression. Doherty rejected 170 Ontario’s argument that it was an “implicit” term of the Agreement that Gagnon could not raise his concerns about the impact of the development on the wetland and held that the Agreement could not be interpreted as preventing Pointes from raising its environmental concerns before the OMB (para. 114). Accordingly Doherty held that 170 Ontario had not demonstrated that the main case had substantial merit, and that, therefore, Pointes was entitled to have the matter dismissed in terms of section 137.1 (para. 117).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This is this first case in which the Ontario Court of Appeal analyzed the legislation designed to prevent Strategic Lawsuits Against Public Participation (SLAPPs). The Court noted that defendants in cases which may not fit within the traditional notion of a SLAPP can still utilize the legislation and this interpretation extends the reach of the legislation to protect against any litigation that acts to silence the exercise of freedom of expression.
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