The recent appeal in Park Lawn Corp. v. Kahu Capital Partners Ltd. to the Court of Appeal of Ontario has thrown open the floodgates of discussions on the costs, efficiency, and economic implications of anti-SLAPP (Strategic Lawsuit Against Public Participation) motions. This appeal assumed significance due to the appellants’ attempt to recover full indemnity costs, a hefty amount of $376,567.78, associated with their anti-SLAPP motion.
The Emergence and Purpose of Anti-SLAPP Motions
In understanding the relevance of this appeal, it’s critical to contextualize the genesis of anti-SLAPP motions. Enshrined within Ontario’s Protection of Public Participation Act, 2015, and manifested as s. 137.1 in the Courts of Justice Act (CJA), the primary objective of these provisions is to dissuade the use of strategic lawsuits that intend to curtail freedom of expression on matters of public interest.
Traditionally, SLAPPs have been weaponized to intimidate or silence critics through the onerous burden of extensive legal fees. Anti-SLAPP motions were introduced as countervailing measures, ensuring an unimpeded democratic public discourse.
In the recent case of Park Lawn Corp. v. Kahu Capital Partners Ltd., the court had a valuable opportunity to apply the Supreme Court’s guidance from the 2020 cases: 1704604 Ontario Ltd. v. Pointes Protection Association and Bent v. Platnick. These decisions were instrumental in further refining the interpretation and application of anti-SLAPP provisions.
A Closer Look at Park Lawn Corp. v. Kahu Capital Partners Ltd.
The case centred around a defamation counterclaim filed by Kahu Capital Partners Ltd. against Park Lawn Corporation and its CEO, J. Bradley Green. The latter had made public statements cautioning the industry about alleged improper actions by a former Park Lawn executive, which Kahu perceived as defamatory. Park Lawn and Green retaliated with an anti-SLAPP motion seeking to dismiss the counterclaim.
Upon dismissing the anti-SLAPP motion, the judge awarded Kahu partial indemnity costs of the anti-SLAPP motion amounting to $31,012.44. Contrarily, Park Lawn and Green appealed, seeking full indemnity costs of $376,567.78.
Anti-SLAPP Motions: A Deviation from the Legislative Vision?
The hefty sum of $376,567.78, sought by the appellants as full indemnity costs, brings forth an alarming reality – the costs associated with anti-SLAPP motions have escalated significantly, straying far from the legislative vision of a quick, cost-effective resolution. This glaring mismatch between the intended purpose and practical application of these provisions necessitates a revisit of the prevailing practices.
The crux of s. 137.1 of the CJA and related sections is to create a legal landscape that encourages individuals to participate in public debates fearlessly, discourages litigation that aims to silence such expression, and mitigates the fear of legal action. Regrettably, anti-SLAPP motions have turned into expensive and protracted proceedings, mirroring preliminary trials more than swift screening procedures.
In light of these challenges, the court’s guidance in Park Lawn Corp. v. Kahu Capital Partners Ltd. is pivotal in steering practices back to the legislative intent. The court has suggested a ceiling of $50,000 on a full indemnity basis for anti-SLAPP motion costs, a move that could inspire a shift towards efficient and cost-effective procedures.
The Road Ahead: Re-aligning Anti-SLAPP Motions with Legislative Intent
A balanced approach necessitates that anti-SLAPP motions be steered back to their core purpose: safeguarding freedom of expression on matters of public interest. Courts must balance the potential harm caused by the expression with the public interest in allowing the proceeding to continue. The outcome of an anti-SLAPP motion should reflect an efficient, economical solution that discourages strategic lawsuits designed to stifle public expression.
Enforcing time restrictions can streamline the process, as the court emphasizes that anti-SLAPP motions should be heard no later than 60 days after filing the notice of motion. Such a restriction can help expedite the process and align it with the legislation’s original intent for a rapid and efficient resolution.
Importantly, it is crucial to remember that barring an error in law or a palpable and overriding error, the motion judge’s decision in an anti-SLAPP motion will receive deference on appeal. Parties should bear this standard of review in mind when contemplating an appeal from an anti-SLAPP proceeding order.
The case of Park Lawn Corp. v. Kahu Capital Partners Ltd. provides a thought-provoking analysis of the current practice of anti-SLAPP motions. It underscores the necessity to re-align these motions with their original intent: being efficient, cost-effective tools designed to preserve public participation and freedom of expression. It also highlights the need for a nuanced approach that weighs the public interest against potential harm, keeping the litigation process streamlined and economical.
While the court suggested a guideline ceiling of $50,000 for full indemnity costs in anti-SLAPP motions, it’s important to remember that this is not a strict cap. There may be circumstances when costs exceed this limit, particularly in cases involving a significant number of alleged defamatory statements. Such situations require a meticulous analysis of each statement and a thorough examination of potential defences.
Defamation proceedings are complex and multifaceted, with as many as eight different types of defences available. These range from truth or justification to absolute and qualified privilege, fair comment, responsible communication on matters of public interest, and others. The necessity to scrutinize each alleged defamatory statement and assess potential defences can complicate and lengthen the litigation process, potentially leading to higher costs.
Thus, while the $50,000 ceiling serves as a guide, it is not absolute. There will be instances where the costs exceed this benchmark due to the complexity and volume of defamatory allegations. Therefore, the court’s suggestion should be interpreted as a call for moderation and efficiency, rather than a rigid limit.
Moving forward, the lessons from Park Lawn Corp. v. Kahu Capital Partners Ltd. could prove instrumental in shaping the discourse on anti-SLAPP motions. It emphasizes the need for maintaining a delicate balance between the freedom of expression, public participation, and a person’s right to protect their reputation. In the constant effort to achieve this equilibrium, it is hoped that anti-SLAPP legislation continues to serve its original purpose, ensuring public debates can flourish unimpeded by the fear of legal retribution. As we strive to address the issues of cost, efficiency, and economy, it is crucial to ensure the continued relevance and potency of these critical legislative provisions within our legal landscape.