Civil Litigation - SLAPP - Merits Exception [CJA 137.1(4)(a)]
. Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I)
In Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I) (Ont CA, 2021) the Court of Appeal considers the SLAPP issue of whether a claim has merit, which is part of the test to allow a claim to proceed even though it challenges an expression that is in the public interest:
 The motion judge, in considering whether there are grounds to believe the negligence claim has substantial merit, used the standard applicable on a motion to strike. He did not have the benefit of the Supreme Court’s decision in Pointes, which describes the applicable standard as one that “is more demanding than the one applicable on a motion to strike, which requires that the claim have some chance of success under the ‘plain and obvious’ test. It is also more demanding than requiring that the claim have a reasonable prospect of success, which is a standard that this Court has also used to animate the ‘plain and obvious’ test” (citations omitted): at para. 50. The standard is lower, however, than that applicable on a motion for summary judgment: at para. 51.. Nanda v. McEwan
for an underlying proceeding to have “substantial merit”, it must 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. In context with “grounds to believe”, this means that the motion judge needs to be satisfied that there is a basis in the record and the law — taking into account the stage of the proceeding — for drawing such a conclusion. This requires that the claim be legally tenable and supported by evidence that is reasonably capable of belief: at para. 49.
In Nanda v. McEwan (Ont CA, 2020) the Court of Appeal considers the CJA s.137.1(4)(a) plaintiff merit's threshold:
(b) Section 137.1(4)(a): The Merits-Based Hurdle. Levant v. Day
 In Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, one of the companion cases to Pointes, Doherty J.A. summarized the requirements of s. 137.1(4)(a), at para. 43:
s. 137.1(4)(a) puts the onus on the plaintiff (responding party) to establish on the balance of probabilities that there are reasonable grounds to believe both that the plaintiff's claim has substantial merit and that the defendant (moving party) has no valid defence. Broadly speaking, the section provides a mechanism whereby claims that have little apparent merit and that potentially undermine freedom of expression can be screened out of the litigation process at an early stage. Applying that analysis, the question raised by s. 137.1(4)(a) becomes:
Could a reasonable trier conclude that [Mr. Nanda] had a real chance of establishing that he was libelled and could a reasonable trier conclude that [the defendants] had no valid defence to the allegation? In the court below, the appellants made no submission on the merits of the respondent’s defamation claim, but they submitted that they were entitled to the defences of justification, fair comment, absolute and/or qualified privilege, and public interest communication. In this court, their submissions on s. 137.1(4) are primarily that the motion judge erred in making obiter statements that could bind a trial judge.
 Only one of the appellants, Mr. Sharma, filed an affidavit on the motion. It contains nothing to support any defence to the most serious defamatory statements. It states that the respondent was “regarded by some members as a polarizing figure in the CUPW Toronto Local, with members holding the opinion that he was acting in an obstructive, intimidating manner, skirting the Rules of Order and proposing motions which could have angered the membership.” It attaches a photograph of a meeting of the Toronto Local, purporting to show that the respondent divided the membership on ethnic lines. It refers to another website containing allegations of corruption against the respondent. Nowhere do the appellants’ materials demonstrate defences to the defamatory statements concerning corruption, rigging elections, abuse of trust, and conspiracy.
 In my view, the respondent’s claim survives the merits-based hurdle. The defamation claim is supported by the evidence adduced by the respondent and the appellants’ pleading, and the evidence does not reveal a defence to the respondent’s serious complaints. A conclusion such as this does not “bind” the trial judge, who will consider the merits and defences on a full record.
In Levant v Day (Ont CA, 2019) the Court of Appeal considered the SLAPP merits exception, after the 2020 SCC case of Pointes Protection:
(2) Were there grounds to believe that the appellant had no valid defence in the proceedings?. Bondfield Construction Company Limited v. The Globe and Mail Inc.
 The respondent satisfied the motion judge that there were grounds to believe that the appellant had no valid defences. The appellant had advanced the defences of fair comment and failure to provide notice pursuant to s. 5(1) of the Libel and Slander Act (the “Act”). The motion judge characterized the impugned Twitter posts as statements of fact, not comment based on facts: Levant, at para. 38. She observed that the statements were repeated, even after the appellant knew the statements were untrue: Levant, at para. 40. She concluded that the statements were motivated by malice and that there were reasonable grounds to believe that no defence of fair comment was made out: Levant, at paras. 41-42. With respect to the notice defence, the motion judge was of the view that s. 5(1) of the Act did not apply to Twitter posts: Levant, at paras. 45-47. In particular, the motion judge found that s. 5(1) of the Act refers to libel in a newspaper and broadcast, and noted that the appellant failed to provide any evidence regarding the functioning of Twitter or provide policy reasons to justify extending the meaning of “broadcast” to include content disseminated via Twitter: Levant, at paras. 45-47. The motion judge also declined to take judicial notice of such facts: Levant, at para. 46.
 Pointes instructs that “[s]ection 137.1 does not provide an alternate means by which the merits of a claim can be tried, and it is not a form of summary judgment intended to allow defendants to obtain a quick and favourable resolution of the merits of allegations involving expressions on matters of public interest”: at para. 73. Rather, the motion judge must decide whether a conclusion that the defendant has no valid defence falls within “the range of conclusions reasonably available on the motion record”: Pointes, at para. 75. Here, a trier could reasonably conclude that some of the defamatory statements made amounted to factual assertions, were not recognisable as comment and could reasonably conclude that the statements were made with malice. A trier might also reasonably conclude that s. 5(1) of the Act does not apply to the Twitter posts. Thus, the respondent has demonstrated that a conclusion that the appellant has no defence to the action is amongst the range of reasonable conclusions which might be reached by a trier and as such has met the test in s. 137.1 (4)(a)(ii), as explained in Pointes. Since the respondent has surmounted this hurdle, an analysis of the balancing test in s. 137.1(4)(b) is required.
In Bondfield Construction Company Limited v. The Globe and Mail Inc. (Ont CA, 2019) the Court of Appeal considered the SLAPP merits exception, after the Pointes case was released from the Ontario Court of Appeal:
III. DID THE MOTION JUDGE ERR IN HIS INTERPRETATION OF THE “NO VALID DEFENCE” PROVISION?. Lascaris v. B’nai Brith Canada
 The motion judge did not have the benefit of this court’s reasons in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, and related cases. His interpretation of s. 137.1(4)(a)(ii) has been overtaken by those cases. As explained in Pointes, at para. 84:
The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. The motion judge placed the onus on Bondfield to show that “the Globe has no valid defence whatsoever.” As explained in Pointes, s. 137.1(4)(a)(ii) imposes a significantly less onerous burden on Bondfield. Bondfield was required to show that a reasonable trier could conclude that the Globe did not have a valid defence. Bondfield would meet that onus if it showed that a reasonable trier could reject all of the various defences put in play by the Globe. A determination that a defence “could go either way” in the sense that a reasonable trier could accept it or reject it is a finding that a reasonable trier could reject the defence. That is as far as Bondfield had to go to meet its onus under s. 137.1(4)(a)(ii). The motion judge erred in law in holding that Bondfield was required to show that the Globe had no valid defence. Bondfield was only required to show that a reasonable trier could reject the defences advanced by the Globe.
 On my reading of the motion judge’s reasons, had he had the benefit of the analysis in Pointes, he would have found that Bondfield had met its onus to show grounds to believe that the Globe had no valid defence. The motion judge accepted that the Globe had “a potentially valid defence of fair comment.” However, he also accepted that Bondfield had a “serious and meritorious claim.” The motion judge saw this as a case that “could go either way.”
 My assessment of the record arrives at the same conclusion. The Globe advanced at least two defences, fair comment and responsible communication, that could reasonably be accepted by a trier. However, the ultimate success of those defences depended on whether the trier would make certain findings. For example, in respect of the fair comment defence, a reasonable trier could view the statements suggesting corruption and collusion in the bidding process as factual assertions or as statements of opinion. If the trier characterized them as the former, the fair comment defence would not succeed. If the trier characterized them as statements of opinion, the defence could well succeed. In short, there was a reasonable prospect that the Globe’s fair comment defence could succeed or could fail. That was enough to get Bondfield past s. 137.1(4)(a)(ii).
 In respect of the responsible communication defence, the Globe was required to show first that the subject matter of the publications was of public interest, and second, that the publication was responsible, in the sense that reasonable steps were taken to ensure the overall fairness of the publication and the accuracy of any factual assertions in the publication: Grant v. Torstar Corp., 2009 SCC 61,  3 S.C.R. 640, at para. 98; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 28. On my review of the record, both the overall fairness of the Globe’s articles and the reasonableness of the steps taken to validate the accuracy of any factual assertions in the articles are open to legitimate dispute. A trier could reasonably find for or against the Globe on these issues. Bondfield established grounds to believe that the responsible communication defence would fail.
 I would hold that Bondfield met its onus under s. 137.1(4)(a)(ii) to show grounds to believe that a reasonable trier could conclude that the Globe did not have a valid defence. Bondfield cleared both merits hurdles in s. 137.1(4)(a).
In Lascaris v. B’nai Brith Canada (Ont CA, 2019) the Court of Appeal considered the SLAPP merits exception, after the Pointes case was released from the Ontario Court of Appeal:
 Before I begin my analysis, I should note that the motion judge heard and decided the s. 137.1 motion before this court released a series of judgments interpreting s. 137.1 in some detail: see 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, and the related cases that were released simultaneously. To a large degree, the motion judge’s analysis has been overtaken by Pointes and those related authorities.. New Dermamed Inc. v. Sulaiman
 I begin with two observations regarding the purpose behind s. 137.1. As this court observed in Pointes, at para. 73, s. 137.1 operates as a screening device. It is not to be used as a surrogate for summary judgment: Pointes, at para. 78. The motion is intended to be brought at the outset of the proceeding before either the plaintiff or the defendant has had the opportunity to marshal the type of evidence that they would for a trial. Indeed, motions under s. 137.1 will often be heard before there has been any form of pre-trial discovery.
 The other observation is that this action has none of the recognized indicia of a SLAPP lawsuit. As pointed out in Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, at para. 99, those indicia are:
• a history of the plaintiff using litigation or the threat of litigation to silence critics; There is no history of the appellant using litigation or the threat of litigation to silence critics. If there is any financial or power imbalance, it would appear to be in favour of the respondent, not the appellant. There is no evidence that the appellant has a punitive or retributory purpose in bringing this action and, as I discuss further below, the potential damages to the plaintiff are significant.
• a financial or power imbalance that strongly favours the plaintiff;
• a punitive or retributory purpose animating the plaintiff's bringing of the claim; and
• minimal or nominal damages suffered by the plaintiff.
 In my view, the motion judge erred in her analysis in one principal respect. 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. Rather, all that the appellant need show is that it is possible that the defence would not succeed. As Doherty J.A. stated in Pointes, at para. 84:
The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonably available on the record, the plaintiff has met its onus. In my view, a reasonable trier could conclude that the defence of fair comment would not succeed. It would be open to a trier to conclude that the statements made about the appellant – namely, that he supported terrorists – were uttered as statements of fact, not as statements of opinion. Further, even if the statements are viewed as opinion, a trier could also conclude that, on the available facts, a person could not honestly express that opinion based on the proved facts. The fact that a person supports a parent, whose child has committed a terrible act, does not make that person a supporter of the child’s actions. A trier might also conclude that the respondent’s repetition of the statements, after the appellant expressly disavowed support for terrorism, made the defence of fair comment unavailable.
 While the motion judge did not deal with the other defences raised because of her conclusion on the defence of fair comment, I must do so given the error that I have found in the motion judge’s analysis. For the same reasons that I have just outlined in dealing with the defence of fair comment, those realities could serve to defeat any defence of justification.
 For qualified privilege to apply, the respondent must have “an interest or a duty, legal, social, or moral, to make [the impugned statements] to the person to whom [those statements are] made”: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC),  2 S.C.R. 1130, at para. 143. It is unclear what duty, of that type, the respondent could point to in order to qualify its statements as falling within a situation of qualified privilege, which in any event is rarely available for widely circulated publications Indeed, I note that the respondent did not pursue this defence on the appeal.
 In the end result, in my view, the appellant has met his burden under s. 137.1(4)(a)(ii) to show that a reasonable trier might conclude that none of the defences advanced would succeed.
In New Dermamed Inc. v. Sulaiman (Ont CA, 2019) the Court of Appeal considered the SLAPP merits exception:
 The motion judge concluded that the proceeding had substantial merit but that the appellant had failed to establish that the defence of fair comment was invalid. On that point, he found that the reviews were comments or opinions; that there was a sufficient factual basis for the comments; that the appellant had failed to show that no person in the respondent’s circumstances could have honestly held the opinions that she expressed; and that the respondent had not made the comments out of malice.. Able Translations Ltd. v. Express International Translations Inc.
 In reaching his conclusion, the motion judge interpreted the onus on the appellant under s. 137.1(4)(a)(ii) as requiring the appellant to show that the defence of fair comment could not succeed: at paras. 38-40. That is not the onus that was on the appellant as this court’s decision in Pointes now makes clear. As stated in Pointes, at para. 84:
The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonably available on the record, the plaintiff has met its onus. Put another way, the onus on the appellant was not to show that there was no possibility that the defence of fair comment could succeed but, rather, just that it was reasonably possible that a trier could conclude that the defence would not succeed.
 We do not agree with the motion judge that a trier could only conclude that the comments made by the respondent were matters of opinion, rather than matters of fact. Having regard to the entirety of the respondent’s comments, and the context in which they were made, we are satisfied that a reasonable trier could conclude that she was stating facts and not opinions. Specifically, a reasonable trier could view her claims of volume loss in her face, as a result of the laser treatments, as statements of fact. If a trier concluded that the respondent was making a factual assertion, then the defence of fair comment would not be available: WIC Radio Ltd. v. Simpson, 2008 SCC 40,  2 S.C.R. 420, at paras. 26-28. Consequently, the appellant had met its burden under s. 137.1(4)(a)(ii).
In Able Translations Ltd. v. Express International Translations Inc. (Ont CA, 2018) considered the two parts of the SLAPP merits exception:
(ii) Section 137.1(4)(a)(i) – Are there Grounds to Believe that Able’s Claim Has Substantial Merit?
 Able had the onus of showing, on the balance of probabilities, that there were grounds to believe that its claim had substantial merit. I have examined s. 137.1(4)(a)(i) at length in Pointes, at paras. 73-82. My analysis in Pointes reflects the arguments advanced on this appeal. I will not re-summarize the arguments made on this appeal, or repeat my analysis in Pointes.
 As observed by the motion judge (para. 51), in addition to establishing that the statements complained of were made by one or more of the defendants, Able had to establish three things to make out its claim:
• The words complained of were defamatory; I agree with the motion judge (para. 52) that, apart from the bald pleading, there is nothing in the motion record to connect the posts to the corporate respondent, Express. Mr. Vitu denies any connection in his affidavit. In the absence of anything in the motion record capable of connecting Express to the posts, there could be no “grounds to believe” that the defamation action against Express had any merit, much less “substantial merit”.
• The words complained of referred to Able; and
• The words were published to at least one other person.
 The appellant’s reliance on Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC),  3 S.C.R. 3, to support its claim against Express is misplaced. In Botiuk, some of the libellous documents were mailed out by the company’s principal on envelopes with the corporate name and address. As slim as that evidentiary connection to the company might have been in Botiuk, there is no evidentiary connection to Express here. The claim against Express was properly dismissed.
 Insofar as the claim against Mr. Vitu is concerned, it is conceded that he authored the posts and that they were communicated to at least one other person. The only question was whether the language in the posts was potentially defamatory in that it could, when considered in its ordinary meaning by a reasonable and fair-minded reader, lower Able’s reputation in the eyes of reasonable people: see Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at paras. 37-38; Botiuk, at para. 62.
 The motion judge considered the possible meanings of the posts. He noted the absence of evidence to support the interpretation of the posts advanced by Able, and the absence of any details about Able’s business practices (paras. 63-68). He concluded, at para. 69:
The “sting” of the words used is slight to non-existent for those unfamiliar with the allegations of the translators and interpreters assembled by Mr. Vitu in his affidavit; for those familiar with them, Mr. Vitu’s words provided no basis for a reasonable person’s opinion of Able’s reputation to be raised or lowered. It is arguable that the motion judge went beyond the scope of the merits inquiry contemplated by s. 137.1(4)(a)(i) and effectively tried the ultimate merits of the allegation. Mr. Vitu’s posts could reasonably be understood by a fair-minded person as an assertion that Able’s business practices were so disreputable that anyone involved in the senior management of Able was thereby rendered unfit for public office. That interpretation could injure Able’s business image and lower its reputation in the eyes of ordinary reasonable members of the community. If there was a real chance that a reasonable trier could take that view of the posts, Able had met its onus to show its case had “substantial merit”: Pointes, at para. 80.
 I need not come to any firm conclusion on whether the motion judge erred in his application of s. 137.1(4)(a)(i), as I am satisfied that he properly dismissed the claim under s. 137.1(4)(b).
(iii) Section 137.1(4)(a)(ii) – No Valid Defence
 Mr. Vitu advanced several defences in his Statement of Defence and the material filed on the motion. In considering whether Able had provided grounds to believe that Mr. Vitu did not have a valid defence, the motion judge considered only the fair comment defence (paras. 76-80). He concluded that Mr. Vitu had established that the defence was “a serious one” with “a reasonable chance of success” (para. 80). Consequently, Able had failed to meet its burden of satisfying the motion judge that there were reasonable grounds to believe that Mr. Vitu had no valid defence.
 As explained in Pointes, at para. 84, a motion judge is required to determine whether a trier could reasonably conclude, based on the motion record, that Mr. Vitu had no valid – that is, successful – defence to the alleged defamatory statements. The motion judge’s reference to the fair comment defence as having “a reasonable chance of success” seems tantamount to a finding that Able failed to show that there were reasonable grounds to believe that Mr. Vitu did not have a valid defence. Once again, I need not come to any firm conclusion on that question, as I am satisfied that the claim was properly dismissed under s. 137.1(4)(b).
 Before leaving s. 137.1(4)(a)(ii), I will, however, address one submission made by the appellant. I agree with the contention that the motion judge’s analysis of the fair comment defence is flawed in one respect. To succeed on the defence, a defendant must provide the factual basis upon which the allegedly defamatory opinion is based. Mr. Vitu’s posts provide no insight – express, implied, or by reference to other material – into the factual basis upon which his negative opinion of Able’s business reputation is based. Absent a factual foundation, fair comment cannot succeed as a defence: see WIC Radio Ltd. v. Simpson, 2008 SCC 40,  2 S.C.R. 420, at para. 31; Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2d ed., vol. 5 (Toronto: Carswell, 1999), at pp. 15-54 to 15-56; Rogacki v. Belz (2004), 2004 CanLII 21439 (ON CA), 243 D.L.R. (4th) 585, at p. 593 (Ont. C.A.).
 The motion judge recognized that the posts contained no factual basis for Mr. Vitu’s opinion. He held, however, that the facts on which the opinion was based would be well-known to the audience to whom the blog was directed (para. 78). With respect, there is no evidence that the blog was directed to any particular group, or that persons reading the blog would necessarily know any of the facts upon which Mr. Vitu’s opinion may have been based. Absent any evidence of the basis upon which Mr. Vitu advanced his negative opinion of Able’s business reputation, there were no reasonable grounds to believe that he had a valid fair comment defence to the allegations. That was, of course, not the only defence advanced.