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Torts - SLAPP - Public Interest Threshold (4). 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 court dismisses the appellant's first argument - ie. that the alleged defamatory statements were not related to matters of public interest:The action arises from expressions that relate to a matter of public interest
[10] I am not persuaded by the appellants’ argument on the first ground of appeal. Whether the vast majority of the tweets constitute personal invective and are accordingly of low value, the motion judge did not err in characterising the object of the expressions giving rise to the defamation action as the standard of care in long-term care homes in general, and at the Villa Colombo Vaughan in particular. The invective was not free-standing or made within the context of a private commercial dispute, such as in Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, but was made within the context of the subject of elder care in long-term care homes, or a particular long-term care home. Elder care in long-term care homes is uncontroversially a matter of public interest.
[11] It was therefore not an error for the motion judge to conclude that the defamation action arose from expressions that relate to a matter of public interest, bringing the action within the scope of s. 137.1. None of this is to conclude, however, that the impugned statements were necessarily of high value for the purposes of the remainder of the analysis. . 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 SLAPP public interest 'threshold' issue [CJA 137.1(3)]:[42] Because of the structure of s. 137.1, success by the appellant on the threshold requirement issue would require that the appeal be allowed, because if the motion judge did not properly determine that the threshold in s. 137.1(3) was met, there was no basis to dismiss the action under s. 137.1 at all. Section 137.1(3) 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 ultimate determination of whether the proceeding should be dismissed”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 21; Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25, at para. 31.
[43] If, however, the appellant fails in showing an error in the motion judge’s finding that the threshold requirement was met, the appellant must show that the motion judge erred on both the merits hurdle issue and the weighing of interests issue in a manner that justifies appellate intervention. That is because to avoid dismissal of an action that meets the threshold requirement, a plaintiff must satisfy both the merits hurdle under s. 137.1(4)(a)(i) and (ii) and the weighing of interests requirement under s. 137.1(4)(b): Pointes, at para. 33.
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The Threshold Requirement Issue
[46] There are two components of the test that must be met by a moving party seeking to establish that a proceeding arises from an expression that relates to a matter of public interest under s. 137.1(3).
[47] First, the proceeding must arise from an expression made by the moving party. This will be the case, regardless of the cause of action asserted or descriptive tag attached to it, if “[t]he expression is causally connected to the claim; there is a nexus between them; the expression grounds the claim; and the claim targets the expression”: Subway, at para. 41. As Côté J. explained in Pointes, at para. 24, the threshold requirement may be satisfied for claims beyond those asserting (or only asserting) defamation:
[W]hat does “arises from” require? By definition, “arises from” implies an element of causality. In other words, if a proceeding “arises from” an expression, this must mean that the expression is somehow causally related to the proceeding. What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1 indicates that a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework. This means that proceedings arising from an expression are not limited to those directly concerned with expression, such as defamation suits. A good example of a type 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), is the underlying proceeding here, which is a breach of contract claim premised on an expression made by the defendant [Footnote omitted.] [48] Although this component of the test was not separately addressed by the motion judge, it is clearly met in this case. Although the appellant’s proceeding asserts causes of action in addition to defamation, they are premised on and target the respondents’ expressions. Indeed, the motion judge characterized most of those causes of action (albeit when discussing the merits hurdle) as “derivative” of the defamation claim, underscoring their close connection to the expressions that are at the heart of the entire claim.
[49] The second component of the test is that the expressions that give rise to the proceeding must relate to a matter of public interest. In Pointes, at para. 28, Côté J. explained that the burden of showing this is not onerous and that the public interest is defined broadly: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. [50] The motion judge noted that the pandemic and the government’s response “affected virtually all Canadians”. He concluded that segments of the public had a genuine interest in information about a lawyer acting in litigation that challenges the government’s response to the pandemic. He considered that the challenged expressions related “to the differences between the actions commenced by [the appellant] … and the [proposed class] action commenced by [CSASPP]” and “the use of funds donated to be used in the litigation”, and that members of the public who donated funds had a genuine interest in the quality of legal representation and how the funds were used.
[51] These conclusions are entitled to deference. The motion judge was not required to view this matter as akin to the situation in Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, where a person claiming to be owed money by a lawyer placed a sign outside the lawyer’s office complaining about the non-payment. The statements on the sign were not considered expressions that related to a matter in the public interest, but to a private dispute: at paras. 15-16. Although the appellant seeks to characterize the Gandhi email and FAQ expressions as relating to CSASPP’s desire to have priority in leading litigation in British Columbia, doing so would not undermine the motion judge’s conclusion. CSASPP’s action was a proposed class proceeding about COVID-19 measures – why those leading it chose not to involve a high-profile lawyer who was representing clients in similar kinds of claims falls within the broad conception of a matter relating to the public interest, not a private dispute.
[52] Similarly, Toews’ complaint is an expression made in relation to a matter in the public interest. The LSO governs the legal profession in the public interest: Law Society Act, R.S.O. 1990. c. L.8, s. 4.2. Toews’ complaint went beyond her private interest in her donations to raise questions about whether donations had been remitted to the appellant and about the progress of litigation for which, she asserted, substantial funds had been solicited from the public.
[53] The motion judge’s conclusion that the respondents had satisfied the threshold requirement under s. 137.1(3) was free of reversible error. I therefore reject this ground of appeal. . Benchwood Builders, Inc. v. Prescott
In Benchwood Builders, Inc. v. Prescott (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this from a defendant-successful SLAPP CJA s.137.1 motion.
Here the court considered the key SLAPP concept of 'public interest', here directly again private interest:(1) The motion judge erred in finding that the Homeowners’ statements relate to a matter of public interest under s. 137.1(3)
[33] The motion judge found that the “expressions in question relate to a matter of public interest”. She cited a colleague’s statement that “[o]nline reviews serve an important function by offering the public information about consumer experiences dealing with professionals or businesses” and are matters of public interest.[16] This seems to be a consensus view of Superior Court judges,[17] but it is not the view of this court[18] whose legal rulings prevail. The motion judge made an error of law in failing to follow this court’s rulings on the interpretation of the “public interest” in s. 137.1.
[34] Online reviews of products and services are part of the pervasive social media milieux in which contemporary society operates. However, “[s]ocial media is not a defamation-free zone” nor do participants “consent to the risk of being defamed”.[19] With these words, Huscroft J.A. qualified the lower court judge’s observation that social media is often a nasty place; Morgan J. described one manifestation, Twitter, as “a rhetorically harsh speech environment whose very pervasive harshness reduces the seriousness with which it is taken”.[20]
[35] Section 137.1 encourages expression on matters of public interest, such as participation in debates on matters of public interest, which are protected by s. 137.1(3). But not every public expression “relates to a matter of public interest,” as Huscroft J.A. pointed out in Sokoloff, at para. 19:[I]t is not enough if expression simply makes reference to something that is of public interest, or to something that arouses the public’s curiosity. Moreover, the court’s instruction of interpretive generosity cannot be read in isolation. The scope for legitimate interpretation of vaguely worded concepts such as “public interest” must be informed by the purpose of the legislation: to safeguard the fundamental value that is public participation in democracy. The burden is on the moving party to establish that its expression relates to a matter of public interest, albeit that this burden is not an onerous one. [36] The Supreme Court said in Grant v. Torstar Corp. that:To be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown, vol. 2, at pp. 15-137 and 15-138. The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”: Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285, at para. 63, per Koenigsberg J. Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.[21] [37] The court applied Grant’s approach to s. 137.1 in 1704604 Ontario Ltd. v. Pointes Protection Association.[22]
[38] In Pointes, Côté J. said, at para. 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. [39] Pointes itself concerned an individual’s testimony in administrative proceedings before a land use tribunal, which was found to be protected as “an expression on a matter of public interest”.[23]
[40] This court has considered the “public interest” as related to online reviews of goods or services on several occasions. Online reviews are not automatically matters of public interest. As Huscroft J.A. noted in Sokoloff, at para. 32:The task of the motion judge under s. 137.1(3) is to determine “what the expression is really about”, bearing in mind the purpose of s. 137.1: protecting expression relating to matters of public interest and safeguarding the fundamental value of public participation in democracy: Pointes (SCC), at para. 30. Again, only expression relating to a matter of public interest attracts the statute’s protection; “expression that simply makes reference to something of public interest” does not: Pointes (SCC), at para. 29. [41] This court noted in Grist, at para. 19, that “the resolution of purely private disputes between more or less equals – disputes that have no immediate bearing on the rights or obligations of others – can seldom be a matter of public interest.”[24] This court’s decisions that have found an expression to relate to a purely private dispute include the following: Echelon (an employee posted an online review of internal workplace conditions, pay, and benefits); Sokoloff (the president of a company stood outside a law firm with signs claiming that the firm had failed to pay his company for fees incurred by the firm’s clients); Hamilton (a client posted an “unflattering opinion” about her lawyer online); and Dent-X Canada (a client posted a review of Dent-X on Facebook that included allegations of fraud).[25] The result in these cases is that the anti-SLAPP motion was not granted and the defamation action was left to continue.
[42] There are some cases involving online reviews or activities that rise above the purely private: Canadian Union of Postal Workers (an expression that dealt with “the use of union funds to take positions on the conflict in the Middle East or to help an organization that allegedly supports attacks on Israel”); Thatcher-Craig (expressions related to municipal land use matters); Levant (expressions related to climate change); Hamer (expressions about animal welfare); and VAC Developments Limited (expressions about anti-Black racism and workplace harassment).[26] Common to each of these cases is an expression that engages some broader societal concern.
[43] Assessing this case against the spectrum of cases reflected in the preceding two paragraphs leads me to conclude that the online reviews posted by the Homeowners reflect no more than an especially bitter private dispute. Consequently, although some members of the public might find it interesting, it is not a matter of public interest under s 137.1. The expression at issue does not engage some broader societal concern, such as those described above, nor, in my view, does it fall within the types of expression that were intended to be captured by the provision. . Hamilton v. Vaughan
In Hamilton v. Vaughan (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, here from a dismissal of an 'anti-SLAPP motion' in a defamation action brought by their former legal counsel:[6] On the anti-SLAPP motion, the motion judge found that the appellant failed on the first step of the anti-SLAPP test, which required her to establish that her comments related to a matter of public interest. Relying on Veneruzzo v. Storey, 2018 ONCA 688, at para. 24, the motion judge held that whether an expression is a matter of public interest requires a contextual inquiry that examines what the impugned communication is about. The motion judge did not accept the appellant’s submission that while the comments were meant to be private, they were a matter of public interest because the comments promote access to justice by allowing legal advice to be obtained for free for self-represented litigants. Instead, she found that the comments were about a legal question relating to the appellant’s personal legal issues, which was a private dispute. Therefore, the appellant did not discharge her onus of proving that the comments related to a matter of public interest and the respondent’s action was allowed to proceed.
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[8] The appellant submits that the motion judge erred by failing to give the concept of “public interest” a broad and liberal interpretation, by misapprehending the nature of the appellant’s expressions, by misconstruing the appellant’s submissions on the motion regarding the nature of the public interest engaged in the expressions, in disregarding the respondent’s pleaded meaning of the expressions, and in making a qualitative assessment of the expression in determining whether it was on a matter of public interest. We disagree.
[9] The motion judge properly conducted a contextual inquiry that focused on what the impugned communication was about, as she was required to do pursuant to this court’s direction in Veneruzzo. It is clear that the specific communication complained of related to the appellant’s personal legal issues, which was a private dispute. There was no public aspect to that communication. . Burjoski v. Waterloo Region District School Board ['counter-speech']
In Burjoski v. Waterloo Region District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from the denial of a SLAPP motion, here where a school board defendant was sued for defamation in the context of disputes over transgendered-issued books in school libraries.
The court considered the public interest, here in the form of 'counter-speech':(c) Public interest in the appellants’ speech
[86] The motion judge did not appear to attach any value to the Board Chair’s speech expressed in public media interviews after the shutdown of the respondent’s presentation. In weighing this interest anew, this court must consider both the quality of the speech, and the motivation behind it: Hansman, at para. 79. The closer the expression is connected to the core values of s. 2(b) of the Charter — “truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing” — the greater the public interest in its protection: Hansman, at para. 79.
[87] The defendants argue that the speech in question — offered in media interviews by the Board Chair — was counter-speech as defined by the Supreme Court of Canada in Hansman. They say that the Board Chair was motivated to counter the offensive statements made by the respondent, as those comments conveyed discriminatory stereotypes about transgender persons, and it was necessary to ensure that the school system was a welcoming place for all, including those in the trans community.
[88] The concept of counter-speech was described by the Supreme Court in Hansman, at para. 82:Counter-speech motivated by the defence of a vulnerable or marginalized group in society also engages the values at the core of s. 15(1); namely, the equal worth and dignity of every individual. Targets of degrading expression belonging to a vulnerable group in society may lack the ability or authority to effectively combat the harmful speech themselves. Discourse can then take on an uneven quality, making protective counter-speech by the group or individual’s more powerful advocates all the more influential and important. [Citations omitted.] [89] The motion judge, while referring to the concept of “counter speech”, found that the Board Chair was not motivated by a desire to defend persons from a marginalized group. He proceeded on the basis that the Board Chair was trying to justify his own behaviour in shutting down the respondent’s presentation. On the motion judge’s analysis, the Board Chair’s statements were rooted more in self-interest than a desire to vindicate the rights and dignity of transgender students.
[90] This characterization of the Board Chair’s motivation was undoubtedly influenced by the motion judge’s view that it was improper to shut down the respondent’s presentation, a view that was later rejected by the Divisional Court, albeit in different litigation. Even setting that aside, however, the motion judge was not moved by the argument that the Board Chair was acting in defence of a marginalized group. As he put it, “[r]egard for the historical and present plight of the transgendered, as articulated in paragraph 85 of Hansman, does not negate section 2(b) of the Charter.”
[91] There may well have been an element of self-justification in the Board Chair’s motives for speaking, but this is not necessarily nefarious. Public officials should explain their decisions to the communities that they serve. The Board Chair was pressed to explain why he had shut down the respondent’s presentation and it was appropriate for him to explain that decision to the public. The evidence would also support a finding that the Board Chair was motivated to respond to what he perceived to be inappropriate and discriminatory remarks.
[92] There is, accordingly, some public interest attaching to the Board Chair’s remarks, both as explanatory comment and as speech aimed at countering what he perceived to be the respondent’s “transphobic” remarks. To the extent that the Board Chair’s speech was aimed at countering speech that undermined the equal worth and dignity of a marginalized group, it has some of the hallmarks of counter speech.
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[98] However, it is one thing to counter discriminatory speech; it is quite another to counter speech that was not expressed. The mischaracterization of what the respondent said is at the core of the action. The Board Chair’s remarks would have led members of the public to perceive that the respondent said something far more insidious than she did. There is a public interest in defending the rights of those who are stigmatized, but this does not license speech that derogates from truth.
[99] In Hansman, the court, while recognizing the public interest in counter-speech, stressed that this does not translate into “open season” on reputation. As the court put it, at para. 92:Although one’s engagement in counter-speech does not amount to “open season” on reputation and speakers must always choose their words carefully, on the whole, Mr. Hansman’s words were not a disproportionate or gratuitous response to Mr. Neufeld’s statements. When confronted with views a person believes to be discriminatory, individuals often use words such as “bigoted”, “intolerant”, or even sometimes “hateful”. I note that Mr. Hansman’s expression generally focused on the views that Mr. Neufeld expressed, and not who he is as a person. [Citations omitted.] [100] Here, as in Hansman, the Board Chair’s comments focused on the respondent’s views rather than who she was as a person. However, here, unlike in Hansman, the Board Chair’s words could be seen as disproportionate or gratuitous in their characterization of the respondent’s remarks. The level of protection afforded to any particular expression will vary, but the public interest will invariably diminish for statements that contain deliberate misrepresentations or gratuitous attacks on a person’s reputation: Marcellin, at para. 102; Pointes Protection, at para. 75.
[101] The responsibility to be accurate took on an enhanced importance in this case, given that the Board chose not to post the recording of the meeting. As a result, the respondent’s words were not available to those members of the public who might want to check what she said for themselves. The public had only the Board Chair’s speech to rely upon. When he gave his interview to 570 News on January 19, 2022, the Board Chair knew that the recording was not available, and this ought to have reinforced the importance of accuracy in his own rendition of the respondent’s statements. In these circumstances, the public interest in protecting the Board Chair’s expression falls at the lower to middle range of the spectrum.
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