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Civil Litigation - SLAPP - "Grounds to Believe" [CJA 137.1(4)(a)]. 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the SLAPP 'grounds to believe' element [under CJA s.137.1(4)]:[53] The two parts of subsection 137.1(a) are directed toward the same objective – they are “constituent parts of an overall assessment of the prospect of success of the underlying claim”: Pointes Protection, at para. 59.
[54] The “grounds to believe” standard is not high; it is more than mere suspicion but less than proof on a balance of probabilities: Pointes Protection, at para. 40. Accordingly, “the motion judge is not intended to wade deeply into the thicket to resolve contested factual assertions. The factual findings on a [s.137.1] motion are only provisional, based on a record that is not expected to be full”: Catalyst, at para. 40. The question is whether the court concludes from an assessment of the record on the motion “that there is a basis in fact and 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”: Pointes Protection, at para. 42. Any conclusion reached on the s. 137.1 motion is expressly limited to the motion and does not pronounce on the ultimate outcome of the action should it proceed to trial. This applies equally to the merits and the defence analysis. As the Supreme Court stated at para. 37 of Pointes Protection:[I]n 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. [Italicized emphasis in original; underlined emphasis added.] . Mondal v. Kirkconnell
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions.
In this quote the court considers the relationship between the 'merits' and the 'no valid defence' prongs of the SLAPP test, and the role of the "grounds to believe" qualifier [at CJA 137.1(4)(a)], that applies to both prongs::[44] As the Supreme Court made clear in Pointes, at paras. 46, 59, the “substantial merit” and “no valid defence” requirements are parts of an overall assessment of the prospect of success of the underlying claim. The bar cannot be set too high at the merits-based hurdle, otherwise the weighing stage will never be reached. This, the Supreme Court emphasized, “cannot possibly be what the legislature contemplated given the legislative history and intent behind s. 137.1”: at para. 63. Proportionality is the “paramount consideration” in determining whether an action should be dismissed.
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(iii) The appellant’s burden on the s. 137.1 motion
[50] As noted above, the bar cannot be set too high at the merits-based hurdle. The plaintiff is not required to establish that the defendant has no valid defence to an action. Section 137.1 requires only that the plaintiff establish that there are grounds to believe that the defendant has no valid defence. This is consistent with the early stage of proceedings in which the motion is brought.
[51] I emphasize the “grounds to believe” modifier lest the burden on the plaintiff be overstated. All that is required to satisfy s. 137.1(4)(a)(ii) is a determination that there is a basis in the record and the law for concluding that the defences asserted will not succeed: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 103; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 455 D.L.R. (4th) 525, at paras. 66-68, leave to appeal refused, [2021] S.C.C.A. No. 87. In this case, the appellant was required to establish grounds to believe that the respondents’ pleaded defence – fair comment – could not succeed. He could do so either by establishing grounds to believe that they could not establish fair comment, or grounds to believe that a fair comment defence otherwise available to them would be defeated by malice: see e.g., Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at paras. 31-34.
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[56] .... The appellant was required to establish only, on a standard less than the balance of probabilities, grounds to believe the respondents had no valid defence. In other words, “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 … there is no valid defence”: Pointes, at paras. 39-40. He was not required to establish that the respondents’ fair comment defence would inevitably fail. As this court put the matter in Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211, at para. 33, leave to appeal refused, [2019] S.C.C.A. No. 147:The burden on the appellant under s. 137.1(4)(a)(ii) is not to show that a given defence has no hope of success. To approach s. 137.1(4)(a)(ii) in that fashion risks turning a motion under s. 137.1 into a summary judgment motion.
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