What Is a SLAPP Lawsuit? How Ontario’s Anti-SLAPP Law Protects the Right to Speak Out

Imagine you post an honest review of a business online, attend a community meeting to oppose a development project, or report concerns about a public official’s conduct to a local newspaper. A few weeks later, you are served with a lawsuit. The claim is not really about recovering compensation for actual harm. It is about making you spend money on lawyers, draining your time and energy, and sending a message to anyone else thinking of speaking up: this is what happens.

This is what a SLAPP looks like in practice. SLAPPs, Strategic Lawsuits Against Public Participation, are one of the more troubling patterns in modern civil litigation. They weaponize the cost and stress of legal proceedings to silence criticism and public debate. Ontario has specific legislation designed to stop them. This post explains what SLAPPs are, how Ontario’s anti-SLAPP law works, what the courts have said about it, and what someone facing this kind of lawsuit can do about it.

What Is a SLAPP?

A SLAPP is a lawsuit brought not to vindicate a genuine legal claim, but to punish someone for speaking out on a matter of public interest and to discourage others from doing the same. The Supreme Court of Canada described this problem directly in its 2020 decision in 1704604 Ontario Ltd. v. Pointes Protection Association: litigation can be a potent weapon in the hands of the rich and powerful. A well-funded plaintiff, determined to maximize the costs of defending a lawsuit, can deter even the most committed critic from continuing to speak.

SLAPPs exploit a structural imbalance in the civil justice system. Suing someone is relatively easy and cheap. Defending a lawsuit is expensive, time-consuming, and stressful. A corporate plaintiff with significant resources can launch a defamation claim against a private citizen, an environmental activist, a community group, or a journalist, and even if the claim has very little chance of winning, the process itself becomes the punishment. The defendant has to hire lawyers, respond to demands for documents, appear at court proceedings, and live under the shadow of litigation for months or years. Most people, facing that prospect, will find it easier to simply stop saying whatever they were saying.

The hallmarks of a SLAPP are recognizable. The plaintiff is typically larger, wealthier, and more powerful than the defendant. The damages claimed are often exaggerated relative to any real harm suffered. The expression being sued over relates to something the public has a legitimate interest in knowing about, such as a proposed development, a company’s environmental practices, a politician’s conduct, or the quality of a product or service. And the plaintiff has sometimes used litigation, or the threat of it, against other critics before.

SLAPPs are not always defamation claims, but defamation law is particularly well-suited to them. Defamation actions are expensive to defend, they can be commenced quickly, and the procedural rules traditionally favour plaintiffs in the early stages of the litigation.

Ontario’s Response: The Protection of Public Participation Act

Ontario enacted the Protection of Public Participation Act, 2015, which amended the Courts of Justice Act by adding sections 137.1 through 137.5. These provisions, which came into force and apply to proceedings commenced on or after December 1, 2014, create a mechanism that allows a defendant to bring a motion to have the proceeding dismissed at an early stage, before the expense of a full trial has accumulated.

The stated purposes of the legislation are direct. The law aims to encourage individuals to express themselves on matters of public interest, promote broad participation in debates on such matters, discourage the use of litigation to unduly limit expression on matters of public interest, and reduce the risk that public participation in debate will be chilled by fear of legal action.

Ontario was not alone in recognizing this problem. British Columbia enacted virtually identical legislation in 2019. Quebec has a provision in its Code of Civil Procedure that can address abusive proceedings, though the threshold is higher and the remedy less robust than Ontario’s approach.

How the Anti-SLAPP Motion Works: The Three-Stage Test

The anti-SLAPP motion is brought by the defendant in a proceeding. Once filed, it freezes the entire litigation: no further steps can be taken by either side until the motion, including any appeal, is finally resolved. The plaintiff cannot amend their pleadings to avoid the motion or to restart the proceeding after a dismissal.

The motion must be heard within 60 days of filing, though in practice courts have not always been able to meet this timeline due to scheduling pressures. It is heard by a judge of the Ontario Superior Court of Justice, not by an associate judge or other officer of the court.

The governing test has three stages, and the burden of proof shifts between the parties as the analysis moves through each one.

Stage One: The Defendant’s Threshold

The moving defendant goes first. To get the motion off the ground, the defendant must satisfy the judge on a balance of probabilities that two things are true: they made an expression, and that expression relates to a matter of public interest.

“Expression” is defined broadly in the legislation as any communication, whether verbal or non-verbal, public or private, and whether or not it was directed at a specific person or entity. This covers social media posts, letters, petitions, speeches, reviews, news articles, and essentially any form of communication.

“Matter of public interest” is also interpreted broadly. The courts have confirmed that it is not limited to government or political topics. It covers any subject in which some segment of the community has a genuine interest beyond mere curiosity, including matters that affect the welfare of citizens, questions of public controversy, and subjects about which people have a right to comment. Online reviews of businesses have been held to relate to matters of public interest. Criticism of a corporation’s practices, commentary on a public official’s decisions, and reports on scientific testing have all qualified. The expression does not need to be in the public interest or to serve some social good. The question is only whether the topic is one the public cares about.

Importantly, the judge does not assess at this stage whether the expression was accurate, fair, or appropriate. The quality and content of the expression are not relevant until later. The only question is whether the subject matter qualifies as a matter of public interest.

Stage Two: The Plaintiff’s Merits Burden

Once the defendant clears the threshold, the burden shifts entirely to the plaintiff. To prevent dismissal, the plaintiff must satisfy the judge of two things on a balance of probabilities.

First, the plaintiff must show there are reasonable grounds to believe the claim has substantial merit. This does not mean winning the case on the motion, but it is more than showing the claim is theoretically possible. The Supreme Court of Canada confirmed in Pointes Protection that substantial merit means the claim has a real prospect of success: the evidence must tend to weigh in the plaintiff’s favour. A claim that has only technical legal validity, or that rests on unsubstantiated allegations, will not meet this standard.

Second, and at the same time, the plaintiff must show there are reasonable grounds to believe the defendant has no valid defence. This is where the motion interacts directly with defamation law. In a defamation context, the defendant would typically put forward defences such as truth, fair comment, responsible communication, or privilege. The plaintiff must show a reasonable basis for believing a court could reject all of those defences. If even one of the defences could go either way, the plaintiff has not met its burden on this part of the test.

To make this work, the defendant has a prior, evidentiary obligation: they must put their defences “into play” by either filing a statement of defence or identifying the defences in their motion materials. The plaintiff cannot be required to disprove defences the defendant has not yet articulated.

If the plaintiff fails to satisfy either of these two requirements, the motion succeeds and the proceeding is dismissed. The plaintiff does not get another chance through a pleadings amendment.

Stage Three: Weighing the Public Interest

Even if the plaintiff meets the merits burden, the motion can still succeed if the plaintiff cannot satisfy the judge on a third and final question: whether the harm to the plaintiff from the defendant’s expression is sufficiently serious that the public interest in allowing the proceeding to continue outweighs the public interest in protecting the defendant’s expression.

The Supreme Court called this the crux of the legislation. It is a qualitative and somewhat subjective balancing exercise. The judge weighs the plaintiff’s harm on one side against the value of protecting the defendant’s expression on the other.

On the harm side, the plaintiff must do more than assert damages in their pleading. They need to provide material that gives the judge a basis to assess what harm has actually been suffered or is likely to be suffered, and to link that harm causally to the defendant’s expression. Serious defamatory statements that obviously damage a reputation may justify an inference of harm without detailed financial evidence, but vague claims that the expression was damaging will not suffice.

On the expression side, factors that increase the public interest weight include the quality of the expression, the motivation of the speaker, and the broader chilling effect that allowing the proceeding to continue would have on others who might otherwise speak on the same or similar topics. A private citizen speaking out at a community meeting about a local development carries different public interest weight than an anonymous online attack motivated by personal grievance.

The classic indicia of a SLAPP are also relevant at this stage: a history of the plaintiff using litigation to silence critics, a significant financial or power imbalance favouring the plaintiff, a punitive or retributory purpose behind the claim, and minimal or nominal actual damages. These factors can tip the balance toward dismissal even where the merits burden is technically met.

The judge is not required to work through both Stage Two and Stage Three in sequence. Where the harm is clearly minimal and the proceedings obviously designed to punish rather than compensate, a judge may move directly to the balancing exercise and dismiss on that basis alone, without engaging in the full merits analysis.

What Happens If the Motion Succeeds

If the judge dismisses the proceeding on an anti-SLAPP motion, the defendant is entitled to costs on a full indemnity basis for both the motion and the proceeding as a whole. Full indemnity is significantly higher than the partial indemnity costs that typically apply in ordinary civil litigation. It is a deliberate legislative choice designed to make defendants whole and to discourage plaintiffs from launching SLAPPs in the first place.

Full indemnity costs do not necessarily equal the defendant’s actual out-of-pocket expenses in every case. The Ontario Court of Appeal has noted that even full indemnity costs awards should be fair and reasonable, and the judge retains discretion. The Ontario Court of Appeal has also provided guidance that costs on anti-SLAPP motions should rarely exceed $50,000 on a full indemnity basis, in recognition that the anti-SLAPP procedure was intended to be quick and relatively inexpensive, not a vehicle for protracted preliminary litigation on its own.

In addition to costs, if the judge finds the plaintiff brought the proceeding in bad faith or for an improper purpose, the judge may award the defendant compensatory damages. These damages are not punitive in nature but compensate the defendant for harm suffered as a result of the abusive litigation. Courts have awarded damages in cases where defendants experienced health consequences, financial hardship, and public humiliation as a result of a proceeding brought to stifle legitimate public comment.

What Happens If the Motion Fails

If the motion is dismissed and the proceeding is allowed to continue, the cost rules flip in an unusual way. Unlike most contested motions where the winner receives some portion of their costs from the loser, a plaintiff who successfully defeats an anti-SLAPP motion is generally not entitled to any costs from the defendant. The default position is that each party bears its own costs of the motion.

This asymmetry is intentional. If unsuccessful defendants faced automatic costs liability, the threat of that outcome would discourage defendants from bringing anti-SLAPP motions in the first place, which would undercut the entire purpose of the legislation. A defendant who genuinely believes they are being SLAPPED should be able to bring the motion without risking a large costs award if it does not succeed.

The no-costs presumption can be displaced in exceptional circumstances where the defendant’s motion was itself frivolous or brought in bad faith. But courts have set a high bar for overcoming it.

The Supreme Court Settles the Law: Pointes Protection and Bent v. Platnick

Before 2020, Ontario courts had developed a substantial body of jurisprudence on the anti-SLAPP provisions, but there were areas of inconsistency and disagreement, particularly about the standard of proof and how the merits burden should be applied. The Ontario Court of Appeal clarified the test in a series of decisions released in 2018, led by the Pointes Protection case.

In 2020, the Supreme Court of Canada issued its first decisions on Ontario’s anti-SLAPP provisions in the companion cases 1704604 Ontario Ltd. v. Pointes Protection Association and Bent v. Platnick. These decisions confirmed the Ontario Court of Appeal’s approach and provided authoritative guidance on several contested questions.

The Supreme Court confirmed that the balance of probabilities standard governs all stages of the test. The “compelling and credible” standard that some courts had previously applied was definitively rejected. The Court clarified that substantial merit requires a real prospect of success, not merely a technically viable legal argument. It confirmed that the public interest in the expression, at the balancing stage, engages Charter values including the search for truth, participation in political decision-making, and diversity in forms of self-fulfillment and human flourishing. And it confirmed that the classic SLAPP indicia are relevant to the balancing exercise but are not themselves requirements for the motion to succeed.

The Pointes Protection case itself arose from a dispute in northern Ontario where a landowner company sued a community association that had spoken out against a proposed subdivision at a tribunal hearing. The Supreme Court upheld the dismissal of the lawsuit as a SLAPP, finding that the public interest in protecting community participation in planning processes outweighed any harm to the developer from the association’s expression.

How the Law Has Been Applied: Real Examples

The range of situations in which anti-SLAPP motions have been brought illustrates the breadth of the legislation’s intended reach.

In the United Soils decisions, an excavation and remediation company sued private citizen defendants who had complained about the company’s operations. The Ontario Court of Appeal upheld the dismissal as a SLAPP, finding the proceedings were classic examples of a powerful plaintiff trying to silence individual critics with limited means. Damages were awarded against the company in one of the cases based on findings of bad faith.

In the New Dermamed case, an individual had posted negative online reviews of a cosmetic treatment clinic. The clinic sued. The motion to dismiss was ultimately granted, with the Court finding that reviews of services offered to the public are matters of public interest and that the clinic could not meet its merits burden.

In contrast, in Bondfield Construction and Lascaris v. B’nai Brith Canada, the Court of Appeal allowed the proceedings to continue. In those cases, the defendants were large institutional entities, the Globe and Mail and a major charitable organization, rather than individuals, and the cases lacked the hallmarks of a classic SLAPP such as a power imbalance favoring the plaintiff and minimal genuine harm.

In the Subway v. CBC case, the Ontario Court of Appeal extended the anti-SLAPP provisions to a negligence claim, not just defamation. Subway had sued Trent University in negligence over laboratory tests used in a CBC documentary about chicken content in Subway’s sandwiches. The Court found that the negligence claim arose from an expression on a matter of public interest, that the expression was at the heart of Subway’s claim, and that Subway could not demonstrate substantial merit because it could not establish a duty of care between itself and the university. The motion to dismiss succeeded. This decision confirmed that the anti-SLAPP provisions are not limited to defamation claims.

Practical Considerations for Defendants Facing a Potential SLAPP

If you have been sued, or threatened with a lawsuit, over something you said or wrote on a matter that the public has a genuine interest in, the first question to consider is whether the anti-SLAPP provisions might apply. They apply to proceedings commenced on or after December 1, 2014, to virtually any type of expression, and to any civil proceeding, not just defamation claims.

Timing matters significantly. The anti-SLAPP motion is intended to be brought early, often before a statement of defence has been delivered. Once the notice of motion is filed, the entire proceeding is frozen. The motion must be heard within 60 days, though this deadline has not always been observed in practice. The defendant should not wait too long before deciding whether to bring the motion, as delay can complicate the analysis and give the impression the claim is not truly abusive.

The evidentiary preparation for the motion is critical. The defendant needs affidavit evidence addressing why the expression relates to a matter of public interest, what defences are available, and the specific public interest served by the expression in the particular circumstances. The plaintiff will respond with evidence on the merits of their claim, the harm they have suffered, and the causal connection between the expression and that harm. Both sides are limited to seven hours of cross-examination on affidavits in total across all parties on their respective side.

Costs protection runs in both directions. If the motion succeeds, the defendant will recover full indemnity costs. If it fails, the defendant will generally not owe costs to the plaintiff. This asymmetry makes the motion relatively attractive to defendants who genuinely believe they are facing abusive litigation, even if the outcome is uncertain.

A Note on the Limits of Anti-SLAPP Law

Anti-SLAPP provisions are a powerful tool, but they are not a complete solution to the problem of abusive litigation. The Supreme Court of Canada and the Ontario Court of Appeal have both noted that, in practice, anti-SLAPP motions themselves have become expensive and time-consuming, which to some extent defeats the purpose of having a quick and inexpensive screening mechanism. Both courts have attempted to reinforce the principle that these motions should be proportionate and focused, and the costs guideline of $50,000 is intended to discourage over-litigation of the motion itself.

The provisions also do not apply to every lawsuit over public expression. Not every defamation claim is a SLAPP. Where the plaintiff is a private individual who has suffered genuine harm from false and damaging statements, and where the merits of the claim are solid and the defences weak, the proceeding should and will continue. The anti-SLAPP provisions are specifically calibrated to target abuse of process, not to give defendants an automatic exit from legitimate defamation claims.