1704604 Ontario Limited Appellant v. Pointes Protection Association, Peter Gagnon, Lou Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen, 2020 SCC 22

SUPREME COURT OF CANADA Citation: 1704604 Ontario Ltd. v.

Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587 Appeal Heard: November 12, 2019 Judgment Rendered: September 10, 2020 Docket: 38376 Between: 1704604 Ontario Limited Appellant and Pointes Protection Association, Peter Gagnon, Lou Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini Respondents - and - British Columbia Civil Liberties Association, Greenpeace Canada, Canadian Constitution Foundation, Ecojustice Canada Society, Centre for Free Expression, Canadian Association of Journalists, Communications Workers of America / Canada, West Coast Legal Education and Action Fund, Atira Women’s Resource Society, B.W.S.S.

Battered Women’s Support Services Association, Women Against Violence Against Women Rape Crisis Center, Canadian Civil Liberties Association, Ad IDEM / Canadian Media Lawyers Association, Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, Aboriginal Peoples Television Network and Postmedia Network Inc. Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 129) Côté J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. concurring) 1704604 ontario ltd. v. pointes protection association 1704604 Ontario Limited Appellant v. Pointes Protection Association,

Peter Gagnon, Lou Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini Respondents and British Columbia Civil Liberties Association, Greenpeace Canada, Canadian Constitution Foundation, Ecojustice Canada Society, Centre for Free Expression, Canadian Association of Journalists, Communications Workers of America / Canada, West Coast Legal Education and Action Fund, Atira Women’s Resource Society, B.W.S.S.

Battered Women’s Support Services Association, Women Against Violence Against Women Rape Crisis Center, Canadian Civil Liberties Association, Ad IDEM / Canadian Media Lawyers Association, Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, Aboriginal Peoples Television Network and Postmedia Network Inc. Interveners Indexed as: 1704604 Ontario Ltd. v. Pointes Protection Association 2020 SCC 22 File No.: 38376. 2019: November 12; 2020: September 10.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Courts — Dismissal of proceeding that limits debate — Freedom of expression — Matters of public interest — Proper

interpretation and application of Ontario’s framework for dismissal of strategic lawsuits against public participation (SLAPPs) — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1 . In 2015, Ontario amended the Courts of Justice Act (“ CJA ”) by introducing ss. 137.1 to 137.5 , occasionally referred to as anti-SLAPP legislation.

These provisions were aimed at mitigating the harmful effects of strategic lawsuits against public participation (“SLAPPs”), a phenomenon used to describe lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression and deter that party, or other potential interested parties, from participating in public affairs.

Pointes Protection Association, a not-for-profit corporation, and six of its members (collectively, “Pointes Protection”) relied on s. 137.1 of the CJA to bring a pre-trial motion to have a $6 million action for breach of contract initiated against them by a land developer dismissed. The action was brought in the context of Pointes Protection’s opposition to a proposed subdivision development by the developer.

The developer claimed that the testimony of the association’s president, at a hearing of the Ontario Municipal Board, to the effect that the developer’s proposed development would result in ecological and environmental damage to the region, breached an agreement between the developer and Pointes Protection that imposed limitations on Pointes Protection’s conduct in respect of the approvals sought by the developer from the relevant authorities for its development. Pointes Protection’s s. 137.1 motion was dismissed by the motion judge, who allowed the developer’s action against Pointes Protection to proceed.

The Court of Appeal allowed Pointes Protection’s appeal, granted its s. 137.1 motion, and dismissed the developer’s lawsuit. Held : The appeal should be dismissed. Freedom of expression is a fundamental right and value; the ability to express oneself and engage in the interchange of ideas fosters a pluralistic and healthy democracy by generating fruitful public discourse and corresponding public participation in civil society.

Section 137.1 of the CJA was enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy. Applying this

framework in this case, Pointes Protection’s s. 137.1 motion should be granted and the developer’s underlying breach of contract action dismissed.

Section 137.1(3) places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the motion judge that the proceeding initiated against them arises from an expression relating to a matter of public interest. This burden is a threshold one, meaning it is necessary for the moving party to meet in order to even proceed to s. 137.1(4) for the ultimate determination of whether the underlying proceeding should be dismissed. While the term “expression” is expressly defined in the statute, other terms are in need of elaboration.

First, in accordance with the jurisprudence interpreting the word, “satisfies” requires the moving party to meet its burden on a balance of probabilities. Second, a broad and liberal

interpretation of “arises from” is warranted, which does not limit proceedings arising from an expression to those directly concerned with expression, such as defamation suits. Third, the text of s. 137.1(2) makes it abundantly clear that “expression” is defined expansively. Fourth, and finally, the term “relates to a matter of public interest” should be given a broad and liberal

interpretation, consistent with the legislative purpose of s. 137.1. Importantly, it will not be legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest — there is no qualitative assessment of the expression at this stage. The only question is whether the expression pertains to any matter of public interest, defined broadly. The principles from Grant v. Torstar Corp. , 2009 SCC 61 , [2009] 3 S.C.R. 640, apply in the present context.

Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about. To the extent that the threshold burden under s. 137.1(3) is met by the moving party (i.e. the defendant in the underlying proceeding), then the burden shifts to the responding party — (i.e. the plaintiff) — to avoid having their proceeding dismissed. Under s. 137.1(4), the plaintiff must satisfy the motion judge that (

a) there are grounds to believe that their underlying proceeding has substantial merit and the defendant has no valid defence, and that (

b) the harm likely to be or have been suffered and the corresponding public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If either (

a) or (

b) is not met, then this will be fatal to the plaintiff discharging its burden and, as a consequence, the underlying proceeding will be dismissed. However, if the plaintiff can show that both are met, then the proceeding will be allowed to continue. Unlike with s. 137.1(3), s. 137.1(4)(a) — the merits-based hurdle — is statutorily circumscribed by an express standard: “grounds to believe”. These words plainly refer to the existence of a basis or source (i.e. “grounds”) for reaching a belief or conclusion that the legislated criteria have been met.

Accordingly, “grounds to believe” requires that there be a basis in the record and law — taking into account the stage of litigation at which a s. 137.1 motion is brought — for finding that the underlying proceeding has substantial merit and that there is no valid defence. This assessment must be made from the motion judge’s perspective.

In consideration of the statutory text, the statutory context, and legislative intent, for an underlying proceeding to have “substantial merit” under s. 137.1(4)(a)(i), it must be legally tenable and supported by evidence that is reasonably capable of belief such that it can be said to have a real prospect of success — in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff.

This standard is more demanding than the one applicable on a motion to strike, which requires that the claim have some chance of success or a reasonable prospect of success. It is, however, less stringent than the likely to succeed standard, the strong prima facie case threshold, or the test for

summary judgment. It is critical to recall that a s. 137.1 motion is not a determinative adjudication of the merits of the proceeding and the motion judge should be acutely aware of the stage of the litigation process at which a s. 137.1 motion is brought. Motion judges should engage in only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings more fully developed. It must be borne in mind that even if a lawsuit clears the merits-based hurdle at s. 137.1(4)(a), it remains vulnerable to

summary dismissal as a result of the public interest weighing exercise under s. 137.1(4)(b), which provides courts with a robust backstop to protect freedom of expression. Under s. 137.1(4)(a)(ii), the plaintiff must also satisfy the motion judge that there are “grounds to believe” that the defendant has “no valid defence” in the underlying proceeding. The word “no” is absolute, and the corollary is that if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed.

Mirroring the “substantial merit” prong, the “no valid defence” prong requires the plaintiff to show that there are grounds to believe that the defences put in play by the defendant have no real prospect of success. The final weighing exercise under s. 137.1(4)(

b) is the fundamental crux of the analysis.

Section 137.1(4)(

b) provides courts with the ability to scrutinize what is really going on in the particular case before them: it is intended to optimize the balance between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest by open-endedly engaging with the overarching public interest implications that this statute, and anti-SLAPP legislation generally, seek to address. Harm is principally important in order for the plaintiff to meet its burden under s. 137.1(4)(b). As a prerequisite to the weighing exercise, the statutory languages requires (

i) the existence of harm and (ii) causation — the harm was suffered as a result of the defendant’s expression. Either monetary harm or non-monetary harm can be relevant, and harm is not synonymous with the damages alleged. Since s. 137.1(4)(

b) is a weighing exercise, there is no threshold requirement for the harm to be worthy of consideration: the magnitude of the harm simply adds weight to one side of the weighing exercise. The plaintiff need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. Once harm has been established and shown to be causally related to the expression, s. 137.1(4)(

b) requires that the harm and corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting the expression. The term “public interest” is used differently here in s. 137.1(4)(

b) than in s. 137.1(3). Under s. 137.1(3), the query is concerned with whether the expression relates to a matter of public interest; the assessment is not qualitative. Under s. 137.1(4)(b), in contrast, the public interest must be relevant to specific goals: permitting the proceeding to continue and protecting the impugned expression. Therefore, not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant. While judges should be wary of conducting a moralistic taste test, not all expression is created equal, thus the weighing exercises can be informed by considerations underlying s. 2(

b) of the Charter of Rights and Freedoms , such as the search for truth, participation in political decision making, and diversity in forms of self-fulfilment and human flourishing: the closer the expression is to any of these

core values, the greater the public interest in protecting it. Additional factors may also prove useful in guiding the weighing exercise.

For example, the following factors, in noparticular order of importance, may be relevant to consider: the importance of the expression, the history of litigation between theparties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expressioneither by a party or by others, the moving party’s history of activism or advocacy in the public interest, any disproportion between theresources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or theclaim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rightslegislation.

However, because the s. 137.1(4)(

b) stage is fundamentally a public interest weighing exercise and not simply an inquiry intothe hallmarks of a SLAPP, the only factors that might be relevant in guiding the weighing exercise are those tethered to the text ofs. 137.1(4)(b), which calls for a consideration of: the harm suffered or potentially suffered by the plaintiff, the corresponding publicinterest in allowing the underlying proceeding to continue, and the public interest in protecting the underlying expression. Fundamentally, s. 137.1(4)(

b) allows judges to assess how allowing individuals or organizations to vindicate their rightsthrough a lawsuit — a fundamental value in its own right in a democracy — affects, in turn, freedom of expression and its correspondinginfluence on public discourse and participation in a pluralistic democracy.

The burden is on the plaintiff to show on a balance ofprobabilities that it likely has suffered or will suffer harm, that such harm is a result of the expression established under s. 137.1(3), andthat the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expressionand public participation. The provision expressly requires that one consideration outweigh the other; this is substantively different thansimply balancing the considerations against one another.

In the present case, Pointes Protection meets its threshold burden under s. 137.1(3) with little difficulty, as the relevantexpression — testimony on the environmental impact and ecological consequences of the proposed development — relates to a matter ofpublic interest and the land developer’s breach of contract action arises from that expression. The land developer’s action must bedismissed, however, as the developer cannot meet its burden under s. 137.1(4).

First, the developer’s action lacks substantial merit: it is not legally tenable and not supported by evidence that is reasonablycapable of belief such that the claim can be said to have a real prospect of success. The land developer’s claim is based solely on analleged breach of a contract by Pointes Protection, but the

interpretation advanced by the land developer does not flow from the plainlanguage of the contract or the factual matrix surrounding it; the reading urged by the land developer would distort the ordinary meaningof the words in a manner that exceeds the bounds of appropriate judicial intervention in matters of contractual

interpretation. Second, regardless, the land developer’s underlying action can nonetheless be dismissed on the independent ground that thedeveloper cannot establish on a balance of probabilities that the weighing of the public interest favours permitting the proceeding tocontinue under s. 137.1(4)(b).

The harm likely to be or have been suffered by the developer as a result of Pointes Protection’s expressionlies at the very low end of the spectrum and, correspondingly, so too does the public interest in allowing the proceeding to continue.Indeed, the land developer’s theory of harm is conjecture and its interest in finality is dependent entirely on the correctness of itsinterpretation of the contract. In contrast, the public interest in protecting Pointes Protection’s expression is significant and falls at thehigher end of the spectrum.

The public has a strong interest in the subject matter — which relates to the ecological impact andenvironmental degradation associated with a proposed large-scale development — and strengthening the integrity of the justice systemby encouraging truthful and open testimony is inextricably linked to the freedom of participants to express themselves in the forumsconcerned without fear of retribution.

For these reasons, Pointes Protection’s s. 137.1 motion should be granted on either of the independent grounds that the landdeveloper’s action lacks substantial merit and that the land developer is unable to demonstrate that the weighing of the public interestfavours permitting the proceeding to continue. Consequently, the land developer’s underlying action should be dismissed. Cases Cited Referred to: Galloway v. A.B., 2019 BCCA 385, 30 B.C.L.R. (6th) 245; Klepper v. Lulham, 2017 QCCA 2069; Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Canada (Canadian Human Rights Commission) v.

Canada (AttorneyGeneral), 2011 SCC 53, [2011] 3 S.C.R. 471; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Topp, 2011 SCC 43, [2011] 3S.C.R. 119; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Shannon v. 1610635 Alberta Inc., 2014 ABCA 393, 588 A.R. 76; R. v.Driscoll (1987), 1987 ABCA 159 , 79 A.R. 298; Allstate Insurance Co. of Canada v. Aftab, 2015 ONCA 349, 335 O.A.C. 172;Sheppard v. Co-operators General Insurance Co. (1997), (ON CA), 33 O.R. (3d) 362; New Brunswick v. O’Leary, (SCC), [1995] 2 S.C.R. 967; Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420; Grant v.

TorstarCorp., 2009 SCC 61, [2009] 3 S.C.R. 640; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2S.C.R. 100; Ontario (Alcohol and Gaming Commission) v. 751809 Ontario Inc., 2013 ONCA 157, 115 O.R. (3d) 24; Ontario(Environment and Climate Change) v. Geil, 2018 ONCA 1030, 371 C.C.C. (3d) 149; Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; R. v. Canadian Broadcasting Corp.,2018 SCC 5, [2018] 1 S.C.R. 196; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Able Translations Ltd. v.

Express InternationalTranslations Inc., 2016 ONSC 6785, 410 D.L.R. (4th) 380, aff’d 2018 ONCA 690, 428 D.L.R. (4th) 568; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60; Lascaris v. B’nai Brith Canada,2019 ONCA 163, 144 O.R. (3d) 211; Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, 426 D.L.R. (4th) 1; Veneruzzo v.Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352; Armstrong v.

Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54; Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688;London Artists, Ltd. v. Littler, [1969] 2 All E.R. 193; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633;Avery v. Pointes Protection Assn., 2016 ONSC 6463, 60 M.P.L.R. (5th) 70; Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38. Statutes and Regulations Cited Bill 52, Protection of Public Participation Act, 2015, 1st Sess., 41st Leg., 2015.

Canadian Charter of Rights and Freedoms , ss. 2( b ) , 15 . Conservation Authorities Act , R.S.O. 1990, c. C.27 . Courts of Justice Act , R.S.O. 1990, c. C.43, ss. 137.1 , 137.2 , 137.3 , 137.4 , 137.5 . Planning Act , R.S.O. 1990, c. P.13, ss. 2 , 51(24) . Protection of Public Participation Act, 2015 , S.O. 2015, c. 23. Authors Cited Black’s Law Dictionary , 11th ed., by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2019, “substantial”. Driedger, Elmer A. Construction of Statutes , 2nd ed. Toronto: Butterworths, 1983. Hogg , Peter W. Constitutional Law of Canada , 5th ed. Supp.

Toronto: Thomson Reuters, 2019 (updated 2019, release 1). Ontario. Legislative Assembly. Official Report of Debates (Hansard) , No. 41A, 1st Sess., 41st Parl., December 10, 2014, pp. 1971-75. Ontario. Legislative Assembly. Official Report of Debates (Hansard) , No. 112, 1st Sess., 41st Parl., October 27, 2015, pp. 6017, 6021, 6025-27. Ontario. Ministry of the Attorney General. Anti-Slapp Advisory Panel: Report to the Attorney General . Toronto, 2010. Sheldrick, Byron. Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression .

Waterloo, Ont.: Wilfrid Laurier University Press, 2014. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Brown and Huscroft JJ.A.), 2018 ONCA 685 , 142 O.R. (3d) 161, 23 C.P.C. (8th) 312 , 426 D.L.R. (4th) 233, 46 Admin. L.R. (6th) 70 , 50 C.C.L.T. (4th) 173, 79 M.P.L.R. (5th) 179, [2018] O.J. No. 4449 (QL), 2018 CarswellOnt 14179 (WL Can.), setting aside a decision of Gareau J., 2016 ONSC 2884 , 84 C.P.C. (7th) 298 , [2016] O.J. No. 2395 (QL), 2016 CarswellOnt 7322 (WL Can.). Appeal dismissed.

Orlando M. Rosa , Paul R. Cassan and Tim J. Harmar , for the appellant. Mark Wiffen , for the respondents. Peter Kolla , Amanda Bertucci and Maia Tsurumi , for the intervener the British Columbia Civil Liberties Association. Nader R. Hasan and Priyanka Vittal , for the intervener Greenpeace Canada. Adam Goldenberg and Simon Cameron , for the intervener the Canadian Constitution Foundation. Julia Croome , Joshua Ginsberg and Sue Tan , for the intervener the Ecojustice Canada Society.

Justin Safayeni and Pam Hrick , for the interveners the Centre for Free Expression, the Canadian Association of Journalists and the Communications Workers of America / Canada. David Wotherspoon , Rajit Mittal and Amber Prince , for the interveners the West Coast Legal Education and Action Fund, the Atira Women’s Resource Society, the B.W.S.S. Battered Women’s Support Services Association and the Women Against Violence Against Women Rape Crisis Center. Alexi N. Wood and Jennifer P. Saville , for the intervener the Canadian Civil Liberties Association. Iain A. C.

MacKinnon and Justin Linden , for the interveners the Ad IDEM / Canadian Media Lawyers Association, the Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, the Aboriginal Peoples Television Network and Postmedia Network Inc.

The judgment of the Court was delivered by [ 1 ] Côté J. — Freedom of expression is a fundamental right and value; the ability to express oneself and engage in the interchange of ideas fosters a pluralistic and healthy democracy by generating fruitful public discourse and corresponding public participation in civil society. This case is about what happens when individuals and organizations use litigation as a tool to quell such expression, which, in turn, quells participation and engagement in matters of public interest.

More specifically, this Court is being asked to decide whether an action brought by 1704604 Ontario Limited (“170 Ontario”) against the Pointes Protection Association and six of its members (collectively “Pointes Protection”) can proceed, or whether it must be dismissed under s. 137.1 of the Courts of Justice Act , R.S.O. 1990, c. C.43 (“ CJA ”). For the reasons that follow, I am of the view that 170 Ontario’s lawsuit must be dismissed. I would accordingly dismiss the appeal before this Court. I.

Introduction [ 2 ] Strategic lawsuits against public participation (“SLAPPs”) are a phenomenon used to describe exactly what the acronym refers to: lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest.

SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fideclaim, but as an indirect tool to limit the expression of others.

In a SLAPP, the claim is merely a façade for the plaintiff, who is in factmanipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potentialinterested parties, from participating in public affairs. [3] In light of the increased proliferation of SLAPPs, provincial legislatures (in Ontario, British Columbia, andQuebec) have enacted laws to mitigate their harmful effects. These laws are occasionally referred to as “anti-SLAPP” legislation (2018ONCA 685, 142 O.R. (3d) 161; Galloway v. A.B., 2019 BCCA 385, 30 B.C.L.R. (6th) 245; Klepper v.

Lulham, 2017 QCCA 2069; B.Sheldrick, Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression (2014)). [4] At issue here is such a law. In November 2015, the Ontario Protection of Public Participation Act, 2015, S.O.2015, c. 23 (“Act”), came into force. The Act amended the CJA, by introducing, in relevant part, ss. 137.1 to 137.5. [5] In this appeal, the Court is effectively being asked to shed light and offer guidance on how to properly apply theframework set out in s. 137.1 of the CJA.

Accordingly, I endeavour to do so below, but not without first providing some background onthe legislation at issue in

Part II. Subsequently, in

Part III, I set out the proper legal framework for dealing with s. 137.1 motions. Finally,in

Part IV, I apply the established legal framework to the facts of this case. II. Background [6] Before I explain the parameters of the s. 137.1 framework, it is necessary, as part of the exercise of statutoryinterpretation, to outline the legislative background of the bill which brought s. 137.1 into effect. Such legislative background and historyoffer contextual clues to and insight into the legislative purpose of the bill, as well as indicia of the proper

interpretation of theprovisions at issue, which will be explored in turn below. Indeed, this Court has reiterated on numerous occasions that the modernapproach to statutory

interpretation requires that the words of a statute be read “in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger,Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27,at para. 21). [7] In 2010, the Attorney General of Ontario mandated an Anti-SLAPP Advisory Panel (“Panel”) to advise thegovernment on how to respond to the proliferation of SLAPPs.

The Panel was chaired by experts and examined a plethora of materials,including legal articles, relevant statutes from other jurisdictions, and advocacy documents. The Panel also invited comments andsubmissions from the public and interested parties. All of this culminated in the Anti-Slapp Advisory Panel: Report to the AttorneyGeneral (“APR”), which was published in October 2010. [8] The APR “concluded that it is desirable for Ontario to enact legislation against the use of legal processes that affectpeople’s ability or willingness to express views or take action on matters of public interest” (para. 10).

The APR looked extensively atthe need for such legislation (paras. 6-16), then provided suggestions on the content of the legislation and outlined the concernsunderlying that content. [9] The APR advocated a “broad scope of protection” (para. 29) that would “ensure that the full scope of legitimateparticipation in public matters is made subject to the special procedure” (para. 31). Fundamental to the APR’s proposal was the theme ofbalancing and proportionality.

While “an adverse effect on the ability of persons to participate in discussion on matters of public interestshould not be sufficient to prevent the plaintiff’s action from proceeding” (para. 36), “the fact that a plaintiff’s claim may have onlytechnical validity should not be sufficient to allow the action to proceed” (para. 37).

To reconcile these considerations, the APR proposeda multi-step test that ended up being substantively similar to the one later adopted by the legislature. [10] In November 2015, Ontario brought into force Bill 52, Protection of Public Participation Act, 2015, 1st Sess., 41stLeg., 2015, which, as noted above, amended the CJA by introducing ss. 137.1 to 137.5. The purposes of those provisions were specifiedin the legislation itself, in s. 137.1(1) of the CJA: 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. [11] This was prompted by the APR, which stated that the “legislation should include a purpose clause for the benefit ofjudicial

interpretation” (Summary of Recommendations, at para. 2). While legislative purpose bears on the exercise of statutoryinterpretation regardless of whether a purpose clause exists, the fact that the APR explicitly urged legislators to include such a clause forthe benefit of judicial

interpretation, and that legislators consciously obliged, demonstrates that the purpose clause in s. 137.1(1)commands considerable interpretative authority.

[ 12 ] Further indications of legislative intention can be gleaned from the debates in the Legislative Assembly of Ontario. At second reading of the bill, the Attorney General of Ontario at the time, the Hon. Madeleine Meilleur, stated the following: If passed, this legislation will allow courts to quickly identify and deal with strategic lawsuits, minimizing the emotional and financial strain on defendants, as well as the waste of court resources. . . . . . . Our proposed legislation strikes a balance that will help ensure abusive litigation is stopped, but legitimate action can continue.

This proposed legislation is about preventing strategic lawsuits. Anyone who has a legitimate claim of libel or slander should not be discouraged by this legislation. (Legislative Assembly of Ontario, Official Report of Debates (Hansard) , No. 41A, 1st Sess., 41st Parl., December 10, 2014, at p. 1975) [ 13 ] Ultimately, the legislative debates preceding the passage of the Act echoed the same concerns expressed by the Panel in the APR. Indeed, parliamentarians acknowledged as much: “This bill came forward as a result of a report from 2010” (p. 1975 (Ms.

Sylvia Jones)); “a made-in-Ontario approach to address the issue of strategic lawsuits based on consensus, recommendations of an expert advisory panel and extensive stakeholder consultation” (p. 1975 ( Hon. Madeleine Meilleur)). Accordingly, it should come as no surprise that the final test adopted in the legislation was very similar substantively to the test proposed in the APR.

This makes it clear that the APR had a considerable influence on the legislation which was enacted and which is now at issue before this Court. [ 14 ] For this reason, the Panel and its APR are persuasive authority for the purposes of statutory

interpretation. It must be remembered that “[l]egislative history includes material relating to the conception, preparation and passage of the enactment”, and this “may often be [an] important par[t] of the context to be examined as part of the modern approach to statutory

interpretation” ( Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471 (“ CHRC ”), at para. 43 ). Indeed, the late Peter W. Hogg defined legislative history as including the following: 1. [T]he report of a royal commission or law reform commission or parliamentary committee recommending that a statute be enacted; . . . 3. a report or study produced outside government which existed at the time of the enactment of the statute and was relied upon by the government that introduced the legislation . . . . ( Constitutional Law of Canada (5th ed.

Supp., at pp. 60-1 to 60-2) While reports like the APR are generally “admissible for any purpose the court thinks appropriate”, the weight accorded to them depends on the circumstances (R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 685; see also R. v. Summers , 2014 SCC 26 , [2014] 1 S.C.R. 575, at para. 51 ). As I have explained, the APR was the clear impetus for the legislation, and was relied upon heavily by the legislature in drafting s. 137.1 of the CJA .

Accordingly, it is a persuasive source that “provide[s] helpful information about the background and purpose of the legislation” ( CHRC , at para. 44). [ 15 ] In light of the foregoing, I turn in

Part III below to the

interpretation of the statutory text of s. 137.1(3) and (4), informed by the legislative history and the purposes that animate these provisions. As already mentioned, this is in accordance with what this Court has referred to as the modern approach to statutory

interpretation. III. Framework [ 16 ] As indicated above, s. 137.1 is the provision in the CJA that is meant to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions.

The final statutory language adopted makes it clear how the APR and the legislative debates informed the drafting of the provision: there is an invocation of the need for the expression to relate to a matter of public interest; the underlying proceeding must have substantial merit (beyond “technical validity”, as the APR noted, at para. 37); and the public interest in protecting the expression must be weighed against the public interest in permitting the underlying proceeding to continue (echoing the importance of balance repeatedly noted in the APR and the legislative debates). [ 17 ] The relevant portions of s. 137.1 are reproduced below:

(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.

(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 seriousthat the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. [18] In brief, s. 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judgethat the proceeding arises from an expression relating to a matter of public interest.

Once that showing is made, the burden shifts to theresponding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit andthe moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interestin protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motionwill be granted and the underlying proceeding will be consequently dismissed.

It is important to recognize that the final weighingexercise under s. 137.1(4)(

b) is the fundamental crux of the analysis: as noted repeatedly above, the APR and the legislative debatesemphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interestin protecting expression on matters of public interest.

Section 137.1(4)(

b) is intended to optimize that balance. [19] In the following section, I offer an explanation of each step of the s. 137.1 analysis, including what is expected ofeach party and how the relevant terms used in the provision must operate. This analysis of the framework is grounded in the words of thestatute read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, whileremaining mindful of the legislative background and informed particularly by the APR and the legislative debates. A.

Section 137.1(3) — Threshold Burden on the Moving Party [20]

Section 137.1(3) is reproduced for convenience below, with my own emphasis placed on the terms requiring furtherillumination:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding againstthe person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter ofpublic interest. [21] Fundamentally, this is a two-part analysis. The burden is on the moving party to show that (

i) the proceeding arisesfrom an expression made by the moving party and that (ii) the expression relates to a matter of public interest. This is a threshold burden,which means that it is necessary for the moving party to meet this burden in order to even proceed to s. 137.1(4) for the ultimatedetermination of whether the proceeding should be dismissed. [22] However, while the term “expression” is expressly defined in the statute, other terms are in need of elaboration inorder to understand how the moving party can satisfy its threshold burden. [23] First, what does “satisfies” require?

I am in agreement with Doherty J.A. of the Court of Appeal for Ontario that“satisfies” requires the moving party to meet its burden on a balance of probabilities (C.A. reasons, at para. 51). This is in accordancewith the jurisprudence interpreting the word “satisfied” (R. v. Topp, 2011 SCC 43, [2011] 3 S.C.R. 119, at paras. 24-25; F.H. v.McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 49 and 53; Shannon v. 1610635 Alberta Inc., 2014 ABCA 393, 588 A.R. 76, atparas. 14-15; R. v. Driscoll (1987), 1987 ABCA 159 , 79 A.R. 298 (C.A.), at paras. 17-18).

Accordingly, the moving party mustbe able to demonstrate on a balance of probabilities that (

i) the proceeding arises from an expression made by the moving party and that(ii) the expression relates to a matter of public interest. [24] Second, what does “arises from” require? By definition, “arises from” implies an element of causality. In otherwords, if a proceeding “arises from” an expression, this must mean that the expression is somehow causally related to the proceeding.[1]What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1indicates that a broad and liberal

interpretation is warranted at the s. 137.1(3) stage of the framework. This means that proceedingsarising from an expression are not limited to those directly concerned with expression, such as defamation suits. A good example of atype of proceeding that is not a defamation suit, but that nonetheless arises from an expression and falls within the ambit of s. 137.1(3), isthe underlying proceeding here, which is a breach of contract claim premised on an expression made by the defendant (this is explored infurther detail in

Part IV of these reasons). Indeed, the APR explicitly discouraged the use of the term “SLAPP” in the final legislation inorder to avoid narrowly confining the s. 137.1 procedure (at para. 22), and the legislature obliged. [25] Third, what does “expression” mean? The term “expression” is defined broadly in s. 137.1(2) of the CJA itself: “Inthis section, ‘expression’ means any communication, regardless of whether it is made verbally or non-verbally, whether it is madepublicly or privately, and whether or not it is directed at a person or entity.” This is not in need of further clarification, as the text makesit abundantly clear that “expression” is defined expansively.

[ 26 ] Fourth, and finally, what does “relates to a matter of public interest” mean? These words should be given a broad and liberal

interpretation, consistent with the legislative purpose of s. 137.1(3). Indeed, the APR clearly stated that a “broader test will ensure that the full scope of legitimate participation in public matters is made subject to the special procedure” (at para. 31) and that therefore a “broad scope of protection” is preferable (para. 29). [ 27 ] In Grant v. Torstar Corp. , 2009 SCC 61 , [2009] 3 S.C.R. 640, this Court considered the question of how public interest in a matter is to be established.

While that case concerned the defence of responsible communication to a defamation action, it also involved determining what constitutes a “matter of public interest”. The same principles apply in the present context. The expression should be assessed “as a whole”, and it must be asked whether “some segment of the community would have a genuine interest in receiving information on the subject” (paras. 101-2). While there is “no single ‘test’”, “[t]he public has a genuine stake in knowing about many matters” ranging across a variety of topics (paras. 103 and 106). This Court rejected the “narrow”

interpretation of public interest adopted by courts in Australia, New Zealand, and the United States; instead, in Canada, “[t]he democratic interest in such wide-ranging public debate must be reflected in the jurisprudence” (para. 106). [ 28 ] The statutory language used in s. 137.1(3) confirms that “public interest” ought to be given a broad

interpretation. Indeed, “public interest” is preceded by the modifier “ a matter of”. This is important, as it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest — there is no qualitative assessment of the expression at this stage. The question is only whether the expression pertains to any matter of public interest, defined broadly.

The legislative background confirms that this burden is purposefully not an onerous one. [ 29 ] Nonetheless, expression that relates to a matter of public interest must be distinguished from expression that simply makes reference to something of public interest, or to a matter about which the public is merely curious. Neither of the latter two forms of expression will be sufficient for the moving party to meet its burden under s. 137.1(3) (see Torstar , at para. 102). [ 30 ] Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about.

The animating purpose of s. 137.1 should not be forgotten: s. 137.1 was enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy. If the bar is set too high at s. 137.1(3), the motion judge will never reach the crux of the inquiry that lies in the weighing exercise at s. 137.1(4)(b).

Thus, in light of the legislative purpose and background of s. 137.1 , it is important to interpret an “expression” that “relates to a matter of public interest” in a generous and expansive fashion. [ 31 ] In conclusion, s. 137.1(3) places a threshold burden on the moving party to show on a balance of probabilities (

i) that the underlying proceeding does, in fact, arise from its expression, regardless of the nature of the proceeding, and (ii) that such expression relates to a matter of public interest, defined broadly. To the extent that this burden is met by the moving party, then s. 137.1(4) will be triggered and the burden will shift to the responding party to show that its underlying proceeding should not be dismissed. I proceed to analyze that provision below. B.

Section 137.1(4) — Shifting of the Burden to the Responding Party [ 32 ]

Section 137.1(4) is reproduced for convenience below:

(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. [ 33 ] As the text of this provision makes explicit, the burden is on the responding party (i.e. the plaintiff in the underlying proceeding) to satisfy the motion judge of both (

a) and (b). Therefore, if either (

a) or (

b) is not met, then this will be fatal to the plaintiff [2] discharging its burden and, as a consequence, the underlying proceeding will be dismissed. However, if the plaintiff can show that both (

a) and (

b) are met, then the proceeding will be allowed to continue. While (

a) directs a judge’s specific attention to the merit of the proceeding and the existence of a valid defence, (

b) is open-endedly concerned with what is at the heart of the legislation at issue and anti-SLAPP legislation generally: the weighing of the public interest in vindicating legitimate claims through the courts against the resulting potential for quelling expression that has already been determined under s. 137.1(3) to be related to a matter of public interest.

(1) Section 137.1(4)(a) — Merits-Based Hurdle [ 34 ] In brief, s. 137.1(4)(

a) requires the plaintiff to “satisf[y] the judge” that there are “grounds to believe” that (

i) its underlying proceeding has “substantial merit” and that (ii) the defendant has “no valid defence”.

[ 35 ] Unlike with s. 137.1(3), “satisfies” is statutorily circumscribed in s. 137.1(4)(

a) by an express standard: “grounds to believe”. In other words, since the statutory language of s. 137.1(3) required that the motion judge simply be “satisfie[d]”, this necessitated a determination of what is sufficient to satisfy the motion judge. What is sufficient for the motion judge to be satisfied for the purposes of s. 137.1(4)(a)? Here, the legislature has expressly answered the question — the motion judge must be satisfied that there are grounds to believe . Therefore, at this juncture, before I explore what exactly is required by s. 137.1(4)(a)(

i) and (ii), it must be determined what “grounds to believe” requires. This necessitates a consideration of the words themselves and their statutory context. [ 36 ] The words “grounds to believe” plainly refer to the existence of a basis or source (i.e. “grounds”) for reaching a belief or conclusion that the legislated criteria have been met. In the context of a s. 137.1 motion, that basis or source must be anchored in the nature of the procedure and record contemplated by the legislative scheme.

It must be borne in mind that a s. 137.1 motion can be brought at “ any time ” after a proceeding has commenced (see s. 137.2(1)). [ 37 ] Accordingly, in determining whether there exist grounds to believe at the s. 137.1(4)(

a) stage, courts must be acutely aware of the limited record, the timing of the motion in the litigation process, and the potentiality of future evidence arising. Introducing too high a standard of proof into what is a preliminary assessment under s. 137.1(4)(

a) might suggest that the outcome has been adjudicated, rather than the likelihood of an outcome. To be sure, s. 137.1(4)(

a) is not a determinative adjudication of the merits of the underlying claim or a conclusive determination of the existence of a defence. [ 38 ]

Section 137.1(4)(

a) may therefore be interpreted by distinguishing a motion made under s. 137.1 from a motion to strike and a motion for

summary judgment, both of which are tools that remain available to parties notwithstanding the existence of s. 137.1. The very fact that the legislature created s. 137.1 as a mechanism indicates that a s. 137.1 motion was meant to fulfil a different purpose than these other motions. While a

summary judgment motion allows parties to file a more extensive record and a motion to strike is adjudicated solely on the pleadings, s. 137.1 contemplates that the parties will file evidence and permits limited cross- examination. This suggests that the parties are expected to put forward a record, commensurate with the stage of the proceeding at which the motion is brought, that lends itself to the inquiry mandated under s. 137.1(4)(a).

Thus, although the limited record at this stage does not allow for the ultimate adjudication of the issues, it necessarily entails an inquiry that goes beyond the parties’ pleadings to consider the contents of the record (the extent of such consideration will be explored further in the next section). [ 39 ] Accordingly, I conclude that “grounds to believe” requires that there be a basis in the record and the law — taking into account the stage of litigation at which a s. 137.1 motion is brought — for finding that the underlying proceeding has substantial merit and that there is no valid defence. [ 40 ] The foregoing conclusion is consistent with the

interpretation this Court has given to the expression “grounds to believe” in other contexts. Indeed, this standard has been found to require “something more than mere suspicion, but less than . . . proof on the balance of probabilities” ( Mugesera v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100, at para. 114 ). This

interpretation has been adopted in the regulatory context as well (see, e.g., Ontario (Alcohol and Gaming Commission) v. 751809 Ontario Inc. , 2013 ONCA 157 , 115 O.R. (3d) 24, at paras. 18-24 ; Ontario (Environment and Climate Change) v. Geil , 2018 ONCA 1030 , 371 C.C.C. (3d) 149). [ 41 ] Importantly, the assessment under s. 137.1(4)(

a) must be made from the motion judge’s perspective. With respect, I am of the view that the Court of Appeal for Ontario incorrectly removed the motion judge’s assessment of the evidence from the equation in favour of a theoretical assessment by a “reasonable trier” (para. 82). The clear wording of s. 137.1(4) requires “the judge” hearing the motion to determine if there exist “grounds to believe”. Making the application of the standard depend on a “reasonable trier” improperly excludes the express discretion and authority conferred on the motion judge by the text of the provision.

The test is thus a subjective one, as it depends on the motion judge’s determination. [ 42 ] Taking all of the foregoing together, what s. 137.1(4)(

a) asks, in effect, is whether the motion judge concludes from his or her assessment of the record that there is a basis in fact and in law — taking into account the context of the proceeding — to support a finding that the plaintiff’s claim has substantial merit and that the defendant has no valid defence to the claim. [ 43 ] I turn now to consider what s. 137.1(4)(a)(

i) and (ii) mean in substantive terms and how the plaintiff can satisfy its burden under s. 137.1(4)(a). (

a) Section 137.1(4)(a)(i) — Substantial Merit [ 44 ] The question under s. 137.1(4)(a)(

i) is whether the underlying proceeding has “substantial merit”. I proceed to elucidate what “substantial merit” means and what the responding party (i.e. plaintiff) needs to show in order to satisfy its burden. [ 45 ] I begin with an analysis of the statutory text. The legislature’s express choice to use the specific word substantial as a qualifier must be given effect. Indeed, the use of the word substantial functions markedly differently than a qualifier such as having some merit, any merit, or just merit absent a qualifier.

Black’s Law Dictionary acts as an interpretive aid in discerning the exact meaning of “substantial”, which it defines as follows: 1. Of, relating to, or involving substance, material <substantial change in circumstances>. 2. Real and not imaginary; having actual, not fictitious, existence <a substantial case on the merits>. 3. Important, essential, and material; of real worth and importance <a substantial right>. ( Black’s Law Dictionary (11th ed. 2019), at p. 1728) [ 46 ] This definition of “substantial” must be read in the context of s. 137.1(4)(a)(i), in which this word modifies “merit”.

Accordingly, it must be asked what is meant by “merit”. The use of the word “merit” in the context of a s. 137.1 motion fundamentally calls for a determination of the prospect of success of the underlying proceeding. Indeed, what is at stake here is the potential dismissal of the proceeding without any opportunity to amend it: while the threshold burden under s. 137.1(3) is concerned with identifying an expression relating to a matter of public interest for protection, s. 137.1(4) engages the competing interest at play — ensuring that a

plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it; this is why the burden is on the plaintiff to ensurethat its claim is not dismissed. Thus, given its ordinary meaning and when read in context, “merit” refers fundamentally to the strength ofthe underlying claim, as a stronger claim corresponds with a weaker justification to dismiss the underlying proceeding. [47] Legislative intent provides a further indication of how “substantial merit” ought to be interpreted.

Indeed, “statutoryinterpretation cannot be founded on the wording of the legislation alone” (Rizzo & Rizzo Shoes, at para. 21). The APR did not offer muchguidance on the meaning of “substantial merit”. It stated, however, that “the fact that a plaintiff’s claim may have only technical validityshould not be sufficient to allow the action to proceed” (para. 37 (emphasis added)).

This was echoed in the Legislative Assembly ofOntario: “I do not believe that a mere technical case — without actual harm — should be allowed to suppress the kind of democraticexpression that is crucial for our democracy” (p. 1972 (emphasis added) (Hon. Madeleine Meilleur)); “[i]t is also important that werecognize the strain that frivolous lawsuits place on our province’s busy court system” (p. 1973 (emphasis added)(Mr. Lorenzo Berardinetti)); “this legislation protects the people from frivolous lawsuits” (p. 1975 (emphasis added)(Mr.

Randy Pettapiece)); “if someone does have a legitimate claim that is not frivolous . . . you can still bring that type of lawsuit”(Official Report of Debates (Hansard), No. 112, 1st Sess., 41st Parl., October 27, 2015, at p. 6025 (emphasis added)(Mr. Jagmeet Singh)). While I acknowledge that the above excerpt from the APR is from the “Balancing interests”

section of that report,the consistency of the language used in the legislative debates shows that the same concern informed the legislature’s understanding ofhow s. 137.1 would operate. It was clearly of the view that even if a proceeding was not merely frivolous or vexatious, or was technicallyvalid, this should not be sufficient to allow the proceeding to continue. This is fundamentally a question that depends on the merits of theunderlying proceeding, which makes the foregoing references well-suited as an interpretive aid under s. 137.1(4)(a)(

i) given the statutorylanguage ultimately used in the provision. Accordingly, it is clear from the legislative context that the words “substantial merit” areanimated by a concern with making sure that, at a minimum, neither “frivolous” suits nor suits with only “technical” validity aresufficient to withstand a s. 137.1 motion. Substantial merit must mean something more. [48] However, while frivolous suits are clearly insufficient, “something more” cannot require a showing that a claim islikely to succeed either, as some parties have posited.

Neither the plain meaning nor the legal definition of “substantial” comports with a“likely to succeed” standard. The legislative and statutory context does not support such a standard either. If “substantial merit” requiresa showing of being likely to succeed, this could unduly prevent cases from proceeding to the crux of the inquiry that is the weighingexercise under s. 137.1(4)(b). Given the importance of the weighing exercise in the legislative history, this cannot possibly be what thelegislature contemplated.

Indeed, nothing in the legislative history — whether in the APR or in the legislative debates — points to a“likely to succeed” standard as the threshold for the plaintiff to prevail at the merits-based hurdle of s. 137.1.

While the plaintiff need notdefinitively demonstrate that its claim is more likely than not to succeed, the claim must nonetheless be sufficiently strong thatterminating it at a preliminary stage would undermine the legislature’s objective of ensuring that a plaintiff with a legitimate claim is notunduly deprived of the opportunity to vindicate that claim. [49] Therefore, I conclude from the foregoing exercise of statutory

interpretation that for an underlying proceeding tohave “substantial merit”, it must have a real prospect of success — in other words, a prospect of success that, while not amounting to ademonstrated likelihood of success, tends to weigh more in favour of the plaintiff. In context with “grounds to believe”, this means thatthe motion judge needs to be satisfied that there is a basis in the record and the law — taking into account the stage of theproceeding — for drawing such a conclusion.

This requires that the claim be legally tenable and supported by evidence that is reasonablycapable of belief. [50] Importantly, this standard is more demanding than the one applicable on a motion to strike, which requires that theclaim have some chance of success under the “plain and obvious” test (Hunt v. Carey Canada Inc., (SCC), [1990] 2S.C.R. 959). It is also more demanding than requiring that the claim have a reasonable prospect of success, which is a standard that thisCourt has also used to animate the “plain and obvious” test (R. v.

Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, atparas. 17-20). In light of the existence of a record, the substantial merit standard calls for an assessment of the evidentiary basis for theclaim — this is why the claim must be supported by evidence that is reasonably capable of belief. This is consistent with the APR’sreferences to “substantive” merit, which inherently calls for an assessment of the basis or evidentiary foundation for a claim. I reiterate,however, that a claim with merely some chance of success will not be sufficient to prevail.

Nor will a claim that has been merely nudgedover the line of having some chance of success. A real prospect of success means that the plaintiff’s success is more than a possibility; itrequires more than an arguable case. As I said in the preceding paragraph, a real prospect of success requires that the claim have aprospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff.

Fora judge undertaking this inquiry, it is critical to recall that a s. 137.1 motion is not a determinative adjudication of the merits of theproceeding and, rather than having to be established on a balance of probabilities, substantial merit is instead tempered by a “grounds tobelieve” burden. [51] The substantial merit standard is less stringent, however, than the “strong prima facie case” threshold, whichrequires a “strong likelihood of success” (R. v.

Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196), or the test forsummary judgment, under which a legally sound claim supported by evidence reasonably capable of belief may nonetheless raise “nogenuine issue requiring a trial” (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87). While Hryniak was admittedly decided in thecontext of

summary judgment motions, which call for an ultimate determination of the merits of a proceeding, that case is relevant at thisjuncture in order to assess the role of s. 137.1 motions: such motions do not exist in a vacuum and must necessarily be fulfilling afunction different than other motions. Although too low a standard risks defeating the purpose of the distinct process for dismissalestablished by s. 137.1, too high a standard risks promoting a counter-productive culture whereby parties are forced to routinely compiledetailed records similar to those expected on

summary judgment motions or even trials. [52] It is therefore important to recognize how s. 137.1 motions differ from

summary judgment motions, as brieflytouched on in the preceding section.

Section 137.1 motions are made at an earlier stage in the litigation process, with much more limitedevidence and corresponding procedural limitations (see s. 137.2). As a result, a motion judge deciding a s. 137.1 motion should engage inonly limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive intothe evidence to a later stage, where judicial powers of inquiry are broader and pleadings more fully developed.

This is not to say that themotion judge should take the motion evidence at face value or that bald allegations are sufficient; again, the judge should engage inlimited weighing and assessment of the evidence adduced. This might also include a preliminary assessment of credibility — indeed, the

legislative scheme allows limited cross-examination of affiants, which suggests that the legislature contemplated the potential for conflicts in the evidence that would have to be resolved by the motion judge. However, s. 137.1(4)(a)(

i) is not an adjudication of the merits of the underlying proceeding; the motion judge should be acutely conscious of the stage in the litigation process at which a s. 137.1 motion is brought and, in assessing the motion, should be wary of turning his or her assessment into a de facto

summary judgment motion, which would be insurmountable at this stage of the proceedings. [ 53 ] Finally, in determining the ambit of “substantial merit”, the statutory context of s. 137.1 must be borne in mind: even if a lawsuit clears the merits-based hurdle at s. 137.1(4)(a), it remains vulnerable to

summary dismissal as a result of the public interest weighing exercise under s. 137.1(4)(b), which provides courts with a robust backstop to protect freedom of expression. [ 54 ] In

summary, in light of the foregoing analysis, to discharge its burden under s. 137.1(4)(a)(i), the plaintiff must satisfy the motion judge that there are grounds to believe that its underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success. (

b) Section 137.1(4)(a)(ii) — No Valid Defence [ 55 ]

Section 137.1(4)(a)(ii) requires the responding party (i.e. plaintiff) to satisfy the motion judge that there are “grounds to believe” that the moving party (i.e. defendant) has “no valid defence” in the underlying proceeding. [ 56 ] While the burden has admittedly shifted to the plaintiff under s. 137.1(4), it would be unreasonable to encumber the plaintiff at the s. 137.1(4)(a)(ii) stage with the task of anticipating every defence the defendant might raise and then rebutting those defences.

Instead, s. 137.1(4)(a)(ii) operates as a de facto burden-shifting provision in itself, under which the moving party (i.e. defendant) must first put in play the defences it intends to present and the responding party (i.e. plaintiff) must then show that there are grounds to believe that those defences are not valid. [ 57 ] In other words, once the moving party has put a defence in play, the onus is back on the responding party (i.e. plaintiff) to demonstrate that there are grounds to believe that there is “no valid defence”. [ 58 ] The word no is absolute, and the corollary is that if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed.

As with the substantial merit prong, the motion judge here must make a determination of validity on a limited record at an early stage in the litigation process — accordingly, this context should be taken into account in assessing whether a defence is valid. The motion judge must therefore be able to engage in a limited assessment of the evidence in determining the validity of the defence. [ 59 ] I interpret the query on validity under s. 137.1(4)(a)(ii) as mirroring the query on substantial merit under s. 137.1(4) (a)(i).

Fundamentally, both entail an assessment by the motion judge of the strength of the claim or of any defences as part of an overall assessment under s. 137.1(4)(

a) of the prospect of success of the underlying claim. Having (

i) and (ii) mirror each other to the extent possible makes sense given the fact that a prototypical s. 137.1 motion will be made in relation to a defamation or tort action and that affirmative defences to such an action normally involve well-articulated tests. The legislative drafting that nests both (

i) and (ii) under s. 137.1(4)(

a) confirms this

interpretation. Indeed, in a defamation action, for example, a claim must be made out, and then the burden shifts to the defendant to identify any affirmative defences to the claim. The way that (

i) and (ii) are nested under (

a) reflects this: the substantial merit of the claim is analyzed and then the validity of any potential defences.

For this reason, I interpret (ii) as an extension of (i), and I would analyze both in a similar fashion whereby the motion judge must first determine whether the plaintiff’s underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success, and must then determine whether the plaintiff has shown that the defence, or defences, put in play are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success.

In other words, “substantial merit” and “no valid defence” should be seen as constituent parts of an overall assessment of the prospect of success of the underlying claim. [ 60 ] In

summary, s. 137.1(4)(a)(ii) operates, in effect, as a burden-shifting provision in itself: the moving party (i.e. defendant) must put potential defences in play, and the responding party (i.e. plaintiff) must show that none of those defences are valid in order to meet its burden. Mirroring the “substantial merit” prong, under which the plaintiff must show that there are grounds to believe that its claim has a real prospect of success, the “no valid defence” prong requires the plaintiff, who bears the statutory burden, to show that there are grounds to believe that the defences have no real prospect of success. This makes sense, since s. 137.1(4)(

a) as a whole is fundamentally concerned with the strength of the underlying proceeding.

(2) Section 137.1(4)(b) — Public Interest Hurdle [ 61 ] At last, I arrive at what is the crux of the analysis.

Section 137.1(4)(

b) provides that, to avoid having its proceeding dismissed, the responding party must satisfy the motion judge that 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. [ 62 ] As I have often mentioned in these reasons, this provision is the core of s. 137.1 . The purpose of s. 137.1 is to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions. While s. 137.1(4)(

a) directs a judge’s specific attention to the merit of the proceeding and the existence of a valid defence in order to ensure that the proceeding is meritorious, s. 137.1(4)(

b) open-endedly engages with the overarching concern that this statute, and anti-SLAPP legislation generally, seek to address by assessing the public interest and public participation implications. In this way, s. 137.1(4)(

b) is the key portion of the s. 137.1 analysis, as it serves as a robust backstop for motion judges to dismiss even technically meritorious claims if the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue. [ 63 ] Statutory

interpretation is a contextual exercise that requires reading a provision with and in light of other provisions:

accordingly, if the bar is set too high at s. 137.1(4)(a)(

i) or (ii), a motion judge will never reach s. 137.1(4)(b) — this cannot possibly be what the legislature contemplated given the legislative history and intent behind s. 137.1. The legislature repeatedly emphasized proportionality as the paramount consideration in determining whether a lawsuit should be dismissed. Weighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim is a theme that runs through the entire legislative history, and this informs how s. 137.1 should be judicially understood. [ 64 ] The import of s. 137.1(4)(

b) is made abundantly evident by looking at the context in which s. 137.1 was enacted. For example, the APR urged that “[t]here should be no special safeguards to prevent abuse. The balancing of interests at the heart of the remedy will allow appropriate disposition of cases” (Summary of Recommendations, at para. 20 (emphasis added)). This goal of achieving balance was echoed during the readings of the bill in the Legislative Assembly of Ontario.

At second reading, the Attorney General of Ontario stated the following: [ translation ] Balance has been a recurring theme: the need to strike a balance that will dismiss abusive lawsuits while permitting legitimate actions. I can assure you that we have heard everything that has been said to us. Balance is a key feature of this bill. (Legislative Assembly of Ontario (2014), at p. 1971 (Hon. Madeleine Meilleur)) The theme of balance was raised frequently throughout the debates by multiple members across party lines (Legislative Assembly of Ontario (2014), at pp. 1972-74 (Mr. Lorenzo Berardinetti); p. 1974 (Mr.

Chris Ballard); p. 1975 (Hon. Madeleine Meilleur); see also Legislative Assembly of Ontario (2015), at p. 6017 (Hon. Madeleine Meilleur); p. 6021 (Mr. Lorenzo Berardinetti); pp. 6025-27 (Mr. Jagmeet Singh)). [ 65 ] I pause here to explain my use of the expression “weighing exercise” and to briefly address whether there is a substantive difference between a weighing exercise and a balancing exercise, and which exercise s. 137.1(4)(

b) requires. This concern was raised by the British Columbia Civil Liberties Association as an intervener before this Court. [ 66 ] Here, the provision expressly requires that one consideration “ outweig[h] ” the other. I am of the view that this is substantively different than if the statute had required that the two considerations be balanced against one another.

The difference can be illustrated by the following quantification of weighing and balancing: where one factor must outweigh the other, the ratio between the two must be at least 51/49; in contrast, where one factor must be balanced against the other, a ratio of 50/50, or even 45/55, might be sufficient for a judge to rule in favour of the former.

The word “outweighs” necessarily precludes such a conclusion. [ 67 ] While I do not purport to decide for all statutes the definitive difference between weighing and balancing, the fact that the statute here requires that one consideration outweigh the other, and not simply that the considerations be balanced against one another, should be relevant to a motion judge’s consideration of whether the plaintiff has satisfied its burden under s. 137.1(4)(b). (

a) Harm Analysis [ 68 ] Harm is principally important in order for the plaintiff to meet its burden under s. 137.1(4)(b). The statutory provision expressly contemplates the harm suffered by the responding party as a result of the moving party’s expression being weighed against the public interest in protecting that expression. As a prerequisite to the weighing exercise, the statutory language therefore requires two showings: (

i) the existence of harm and (ii) causation — the harm was suffered as a result of the moving party’s expression. [ 69 ] Either monetary harm or non-monetary harm can be relevant to demonstrating (

i) above. I am in agreement with the Attorney General of Ontario at the time the legislation was debated, who recognized at second reading “that reputation is one of the most valuable assets a person or a business can possess” (Legislative Assembly of Ontario (2014), at p. 1971 (Hon. Madeleine Meilleur)). Accordingly, harm is not limited to monetary harm, and neither type of harm is more important than the other. Nor is harm synonymous with the damages alleged. The text of the provision does not depend on a particular kind of harm, but expressly refers only to harm in general. [ 70 ] Further, since s. 137.1(4)(

b) is, in effect, a weighing exercise, there is no threshold requirement for the harm to be sufficiently worthy of consideration. The magnitude of the harm becomes relevant when the motion judge must determine whether it is “sufficiently serious” that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. In other words, the magnitude of the harm simply adds weight to one side of the weighing exercise. [ 71 ] This does not mean that the harm pleaded by the plaintiff should be taken at face value or that bald assertions are sufficient.

But I would not go so far as to require a fully developed damages brief, nor would I require that the harm be monetized, as the question here relates to the existence of harm, not its quantification. The statutory language employed in s. 137.1(4)(

b) is “harm likely to”, which modifies both “be” and “have been”; this indicates that the plaintiff need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link.

The evidentiary burden might depend on the nature of the substantive law that is applied, although it must be borne in mind that a s. 137.1 motion is not an adjudication on the merits: for example, in a defamation action, harm (and therefore general damages) is presumed, but the plaintiff would still have to support a claim for special damages.

Importantly, though, no definitive determination of harm or causation is required. [ 72 ] I add that, naturally, evidence of a causal link between the expression and the harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm (C.A. reasons, at para. 92). Causation is not, however, an all-or-nothing proposition, in the sense that while the causal chain between the defendant’s expression and the harm suffered by the plaintiff may be weaker for some elements of the harm suffered, it might nonetheless be strong for other elements.

This is a case-by-case inquiry undertaken by the motion judge. (

b) Weighing of the Public Interest [ 73 ] Once harm has been established and shown to be causally related to the expression, s. 137.1(4)(

b) requires that the

harm and corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting theexpression. Therefore, as under s. 137.1(3), public interest becomes critical to the analysis. [74] However, the term “public interest” is used differently in s. 137.1(4)(

b) than in s. 137.1(3). Under s. 137.1(3), thequery is concerned with whether the expression relates to a matter of public interest. The assessment is not qualitative — i.e. it does notmatter whether the expression helps or hampers the public interest. Under s. 137.1(4)(b), in contrast, the legislature expressly makes thepublic interest relevant to specific goals: permitting the proceeding to continue and protecting the impugned expression. Therefore, notjust any matter of public interest will be relevant.

Instead, the quality of the expression, and the motivation behind it, are relevant here. [75] Indeed, “a statement that contains deliberate falsehoods [or] gratuitous personal attacks . . . may still be anexpression that relates to a matter of public interest. However, the public interest in protecting that speech will be less than would havebeen the case had the same message been delivered without the lies [or] vitriol” (C.A. reasons, at para. 94, citing Able Translations Ltd.v.

Express International Translations Inc., 2016 ONSC 6785, 410 D.L.R. (4th) 380, at paras. 82-84 and 96-103, aff’d 2018 ONCA 690,428 D.L.R. (4th) 568). [76] While judges should be wary of the inquiry descending into a moralistic taste test, this Court recognized as early asR. v.

Keegstra, (SCC), [1990] 3 S.C.R. 697, that not all expression is created equal: “While we must guard carefullyagainst judging expression according to its popularity, it is equally destructive of free expression values, as well as the other valueswhich underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b)” (p. 760). [77] The weighing exercise under s. 137.1(4)(

b) can thus be informed by this Court’s s. 2(

b) Canadian Charter of Rightsand Freedoms jurisprudence, which grounds the level of protection afforded to expression in the nature of t

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