Simon's Megalomaniacal Legal Resources

Torts - SLAPP - "Grounds to Believe" [CJA 137.1(4)(a)]

. Universalcare Canada Inc. v. Gusciglio

In Universalcare Canada Inc. v. Gusciglio (Ont CA, 2025) the Ontario Court of Appeal allowed a SLAPP appeal, this from an order which "dismissed the [SS: defamation] action, finding that the respondent established that the proceeding arises from expression that, taken “as a whole”, related to the topic of elder care in long-term homes, which she concluded is a matter of public interest".

Here the "motion judge omitted any [SS: 137.1(4)(a)] analysis of whether the appellants had met their onus of establishing “grounds to believe” (1) that the action had merit and (2) that the respondent had no valid defence, and dismissed the action on the basis that in any event the appellants could not prevail on the motion because they had not persuaded the motion judge “that they likely have suffered any harm, or will suffer harm from Ms. Gusciglio’s tweets, let alone serious harm sufficient to outweigh the deleterious effect of stifling her expression on a matter of public interest.” [CJA 137.1(4)(b)]:

The motion judge made reviewable errors in her s. 137.1(4) analysis

[12] The appellants are correct, however, that the motion judge made reviewable errors in her analysis under s. 137.1(4), such that it is necessary to allow the appeal and restore the action, without prejudice to the respondent refiling her motion if she chooses, to be heard by a different judge on the same record or as directed by the motion judge.

[13] No doubt mindful of this court’s repeated admonition that anti-SLAPP motions are intended to operate as an efficient, preliminary screen to filter out abusive claims, and not to descend to the depths of a summary judgment motion (see for example 40 Days for Life v. Dietrich, 2024 ONCA 599, at paras. 43 and 45, leave to appeal refused, [2024] S.C.C.A. No. 396), the motion judge attempted an analytical shortcut that restricted her analysis to the question of whether the appellants had satisfied their burden (under s. 137.1(4)(b)) of establishing that they had suffered sufficient harm. She concluded that the appellants had not done so, and therefore could not prevail at the balancing step, irrespective of whether they could have established that there were grounds to believe the action was meritorious and the respondent lacked any valid defence. Unfortunately, the motion could not be resolved on this basis.

[14] The motion judge’s analysis of the s. 137.1(4)(b) issue was brisk, immediately moving from the finding that “[t]he sum of the Plaintiffs’ evidence reveals little or no harm from Ms. Gusciglio’s tweets” to the conclusion that “[t]he reasonable inference is that the lawsuit is designed to address Ms. Gusciglio’s behaviour at the home … teach her a lesson, stand behind staff, and to deter others from behaving as she did.” The balancing analysis required by s. 137.1(4)(b) was then simply a matter of reporting that the effect of the action was to “curb her commentary on a matter of public interest”, with the assumed conclusion that the public interest in permitting the expression necessarily outweighed the public interest in allowing the appellants to continue the action to vindicate their claims.

[15] The motion judge made two errors. First, she made an error of mixed fact and law in finding the evidence revealed “little or no harm” from the tweets. To assess the harm from defamation, the motion judge was required to consider the sting of the words used, if not in every tweet then at least according to some representative samples drawn from a recognizable scheme of characterization. By not conducting the s. 137.1(4)(a) analysis, this was left undone. This left in shadow, at the s. 137.1(4)(b) stage, facts that could have led the motion judge “‘to draw an inference of likelihood’ of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression”: Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 67. Relevant facts might have included that Mr. Gulizia is the CEO of a company that operates in a highly regulated field, and whose business depends on a high degree of trust from both the public and regulatory bodies, and that the respondent made allegations of very serious wrongdoing (including the commission of serious crimes) against Mr. Gulizia personally, against the company he operates, and against Villa Colombo Vaughan. The likelihood of harm resulting from these allegations of wrongdoing must be assessed in light of the Supreme Court’s repeated emphasis on the “weighty importance that reputation must be given”, and that a person’s good reputation “is closely related to the innate worthiness and human dignity of the individual”: Bent v. Platnick, 2020 SCC 23 at para 146, (citing Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, at para 107.)

[16] In concluding that the evidence of harm adduced was insufficient, the motion judge applied too high a standard. At the public interest hurdle, “the plaintiff need not prove harm or causation; the court is tasked at this stage with drawing inferences of likelihood in respect of the existence of harm, its magnitude, and the relevant causal link”: Mondal v. Kirkconnell, 2023 ONCA 523, 485 D.L.R. (4th) 90, at para. 30; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 71. It was therefore an error to find the appellants had not, for the purpose of s. 137.1(4)(b) balancing, discharged their burden with respect to the likelihood of harm suffered. The standard applied was too stringent and failed to take sufficient account of the alleged harm to Mr. Gulizia’s professional reputation, even if not quantifiable at this stage.

[17] Second, the motion judge concluded that the insufficiency of evidence of harm was determinative of the balancing step because she assumed the respondent’s expression had value. This assumption was another error.

[18] It is hazardous to dispense with the s. 137.1(4)(a) analysis except in the clearest of cases, which this is not. Had the motion judge engaged in the preliminary step of assessing whether there were grounds to believe the defamation action had substantial merit and grounds to believe a defence would not succeed, the motion judge would have had to come to some preliminary assessment of the value of the respondent’s expression and whether it was motivated by malice. This would have assisted in the public interest balancing analysis. It is not sufficient, for the purposes of the balancing analysis, to simply note that the expression addressed a matter of public interest. It cannot be assumed that all expressions that address matters of public interest are necessarily of high value, let alone outweigh the public interest in permitting plaintiffs to pursue an action seeking a remedy for alleged harm suffered: Marcellin v. London (Police Services Board), 2024 ONCA 468, 498 D.L.R. (4th) 438, at paras. 96-97.

[19] Because of these two errors, the balancing analysis must be redone. As the parties argued before us, because we do not have the necessary findings that would permit us to conduct the analysis afresh, it is necessary to remit the matter to the Superior Court for a rehearing, should the respondent choose to continue with the motion.

. Galati v. Toews

In Galati v. Toews (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here where the appellant-plaintiff "commenced an action against the respondents alleging that their statements caused him harm and that the respondents were liable to him on several bases, including defamation, conspiracy, unlawful means, intentional infliction of mental suffering and harassment" and the defendants successfully moved for a CJA 137.1(3) dismissal.

Here the court considers the CJA 137.1(4)(a) 'grounds to believe' element of the SLAPP test:

[54] To satisfy the merits-based hurdle in s. 137.1(4)(a), a responding party must establish grounds to believe that the proceeding has substantial merit and that the moving party had no valid defence. The “grounds to believe” standard is lower than a balance of probabilities. It requires there to be some basis in the evidentiary record and the law, taking into account the stage of the proceeding, for the required conclusions. This is not a high bar: Bent, at paras. 87-88, Marcellin v. London (Police Services Board), 2024 ONCA 468, 498 D.L.R. (4th) 438, at paras. 10-11.

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[61] ... The substantial merit question under s. 137.1(4)(a)(i) asks whether the plaintiff could meet its initial burden. The valid defence question under s. 137.1(4)(a)(ii) asks whether there are grounds to believe the defence could meet its burden if called upon to do so: Bent, at paras. 101-102, 107. The motion judge did not always consider whether the statements were defamatory in this sense before proceeding to consider whether there was a defence.

[62] However, reading the reasons as a whole, the error is not germane. Subsections (i) and (ii) of s. 137.1(4)(a) must both be met before the merits hurdle is cleared. As long as the analysis respects the respective burdens of proof applicable to the claim and any defence, a finding of grounds to believe that the respondents have a valid defence still means the merits hurdle was not cleared, even if it was not preceded by a proper finding that, absent such a defence, there are grounds to believe the action has substantial merit. Here, the motion judge found the appellant had failed to show an absence of grounds to believe the respondents had valid defences.

. Hamer v. Jane Doe

In Hamer v. Jane Doe (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a successful SLAPP CJA s.137.1 motion.

Here the court considers the CJA s.137.1(4)(a) 'grounds to believe criteria:

[53] The motion judge’s treatment of s. 137.1(4)(a)(i) contains analytical error that permeates her analysis under ss. 137.1(4)(a) and (b). Specifically, the motion judge did not carry out the requisite robust analysis of the issue of whether there were grounds to believe that the appellants’ action had substantial merit. Rather, she considered the impugned statements and comments in isolation of each other and effectively required the appellants to prove each was defamatory on an individual basis. This led her to misapprehend the overall sting or main thrust of the defamation in issue and to undervalue the merit of the appellants’ action. While that analytical error may not have affected her conclusion that the appellants met their onus under s. 137.1(4)(a)(i), it skewed her overall assessment of s. 137.1(4)(a), as well as her final weighing of the factors under s. 137.1(4)(b).

[54] I am not persuaded by the respondents’ argument that when read as a whole, the reasons show that the motion judge applied the correct standard. In her consideration of s. 137.1(4)(a)(i), the motion judge did not refer to the “grounds to believe” standard but stated that the appellants “must show their claim has substantial merit” and that they “must show that they have a real chance of proving that the words were published, that they referred to the [appellants] and that they are defamatory in the sense that they would lower the [appellants’] reputation in the eyes of a reasonable person” (emphasis added).

[55] In failing to apply the correct “grounds to believe” standard in her assessment of the criteria under s. 137.1(4)(a)(i), the motion judge erred in law by applying a standard that was higher than the legislated standard and inconsistent with the nature of the required preliminary assessment.

[56] Applying the correct approach, in assessing whether the appellants’ defamation proceeding has substantial merit for the purposes of s. 137(4)(a)(i), the following three criteria must be met, as noted in Bent, at para. 92:

1. The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;

2. The words complained of referred to the plaintiff; and

3. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

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[69] Accordingly, the appellants could satisfy their burden to establish that there were grounds to believe that the respondents’ defence of fair comment would not succeed, either by establishing grounds to believe that the respondents 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, at paras. 31-34; Mondal, at para. 51.

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[79] To be clear, the appellants may not ultimately succeed at trial in establishing malice; however, on a motion under s. 137.1(4)(a) and (b), the appellants only need to establish that there are grounds to believe that the respondents’ fair comment defence will not succeed in order to clear the merits-based hurdle: Mondal, at para. 57; Canadian Union of Postal Workers, at para. 32. In my view, they have done so.

. 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.