Anti-SLAPP Legislation: Is it Working?
by Linda Phillips-Smith, Nicola Brankley, Noah Eklove | Oct 26, 2021
A legal proceeding intending to silence a group or individual who speaks out on matters of public interest is known as a Strategic Lawsuit Against Public Participation (SLAPP). The purpose of a SLAPP is to silence critics with less financial resources by forcing them to spend time and money to defend baseless lawsuits. Examples of SLAPPs may include claims against environmental groups for speaking out against proposed land developments, claims by politicians against critics (whether they be credentialed journalists or keyboard warriors), or claims against indigenous groups for opposing pipeline development. In 2015, in response to an increasing number of SLAPP actions, the Ontario Legislature enacted the Protection of Public Participation Act which amended the Ontario Courts of Justice Act to add Anti-SLAPP legislation.
As set out in sections 137.1 through 137.5 of the Courts of Justice Act, the aim of this legislation is to balance the protection of freedom of expression in matters of public interest with the protection of reputation and economic interests. The legislation accomplishes this goal by allowing judges, on motion, to efficiently dismiss certain actions without the time and expense of a trial.
The Anti-SLAPP motion effectively acts as a specialized form of summary judgement, where the defendant seeks an early dismissal of an action. The defendant must demonstrate that the claim has no substantial merit and that the public interest in the expression outweighs the alleged harm suffered by the plaintiff. The legislation also has a unique costs regime which recognizes the inequality of the parties’ economic conditions and favours the moving defendant – who is often the party with fewer financial resources.
Recent case law helps us understand whether the laudable goals of s.137.1 are being achieved. Although relatively new, the Supreme Court of Canada (“SCC”) and the Ontario Court of Appeal (“ONCA”) have each had several opportunities to consider this legislation, refine the applicable test, and provide some guidance on where this legislation may be headed in the future.
A. Supreme Court of Canada Jurisprudence
In 2020, the SCC considered Ontario’s Anti-SLAPP legislation in 1704604 Ontario Ltd. v Pointes Protection Association 2020 SCC 22 (“Pointes”), and Bent v Platnick 2020 SCC 23 (“Bent”).
i. 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22
Pointes Protection Association (“Pointes”), a Sault Ste. Marie environmental group, advocated against 1704604 Ontario Ltd.’s (“170 Ontario”) proposed residential development. The proposed development required approval of both the Sault Ste. Marie Regional Conservation Authority (“RCA”) and city council. After the development received approval from the RCA, Pointes applied for judicial review. Pointes and 170 Ontario eventually entered into a settlement agreement to abandon that judicial review, a term of the settlement being that Pointes would not advance in any legal proceeding a position that RCA’s decision was incorrect.
The proposed development was subsequently rejected by the city council. 170 Ontario appealed the city’s decision to the Ontario Municipal Board (“OMB”). Pointes was granted party status at the OMB hearing and the president of Pointes testified that the development would lead to a loss of wetland area and cause environmental damage to the region. The OMB ultimately dismissed the appeal, citing Pointes’ evidence as one of the contributing factors for the dismissal.
170 Ontario subsequently sued Pointes, alleging that the testimony breached the terms of the settlement. In response, Pointes brought an unsuccessful motion to dismiss under s.137.1 CJA. On appeal, the ONCA conducted an Anti-SLAPP analysis and found that the claim did not have substantial merit, thereby overturning the motion decision and dismissing 170 Ontario’s breach of contract claim.
ii. Bent v Platnick 2020 SCC 23
Maia Bent (“Bent”) is a lawyer and was the president-elect of the Ontario Trial Lawyers Association (“OTLA”) in 2015. Dr. Howard Platnick (“Platnick”), is a family physician hired through insurance companies to review and submit reports on medical specialists’ assessments of individuals injured in motor vehicle accidents.
Bent sent an email to a listserv of approximately 670 members of the OTLA, indicating that Platnick had altered important sections of the medical specialists’ reports and changed another doctor’s report to indicate that an individual was more impaired than what the medical specialist had determined. Bent’s email regarding Platnick’s alleged misconduct was anonymously leaked to the public; this leak resulted in an article about the allegations being published in a prominent insurance business magazine. Platnick sought a public apology and retraction statement from Bent, which Bent refused.
Platnick then commenced a $16.3-milion defamation lawsuit. Bent successfully brought a motion to dismiss the lawsuit pursuant to s.137.1. On appeal, the ONCA reversed the decision, finding that the potential harm to Platnick outweighed the public interest in protecting Bent’s freedom of expression.
iii. Appeals of Pointes and Bent to the Supreme Court of Canada
The plaintiff in Pointes and the defendant in Bent both sought leave to appeal to the SCC. In Bent, the defendant asked the SCC to consider the proper scope of inquiry into the merits of claims and defences in the summary dismissal process and to provide guidance on how to weigh seriousness of harm and the importance of the public expression at stake. In Pointes, the plaintiff asked the SCC to determine whether the Anti-SLAPP legislation applies to breach of contract cases and to provide further guidance on how to conduct the merits-based analysis and public interest analysis.
The SCC agreed to hear these cases as there had been a lack of clear guidance on how the test should be applied, which resulted in inconsistent decisions in by lower courts. The SCC decisions in Pointes and Bent are meant to delineate and refine the motion to dismiss test in the context of Ontario’s Anti-SLAPP legislation, as well as similar legislative frameworks across Canada.
iv. Anti-SLAPP Framework
In Pointes, Justice Côté, writing for the unanimous Court, set out a three-step test for Anti-SLAPP motions. Steps one and two examine whether the action is technically sound. Step three examines the balance between public and private interests. In Bent, Justice Côté added to the understanding of the test by noting that the Anti-SLAPP legislation has two overarching goals: 1) to screen out lawsuits that limit expression on matters of public interest and 2) to ensure a plaintiff with a legitimate claim is not unduly denied the opportunity to pursue it. These two primary considerations must be kept in mind when applying the s.137.1 framework.
Step 1- s.137.1(3) Threshold Burden
Step 1 involves a two-pronged analysis, whereby the moving party must establish (1) that the “proceeding arises from an expression” made by the defendant, which (2) “relates to a matter of public interest.”
In establishing in the first prong that the proceeding arises from their expression, the term, ‘arises from’ is given a broad definition and only requires that the expression be causally related to the proceedings. Where the underlying proceeding is a breach of contract claim, the term ‘expression’ is defined expansively under s.137.1(2) to encompass any form of verbal or non-verbal, public or private, communication made by the defendant.
Under the second prong of the analysis, the SCC again encouraged a broad and liberal interpretation for the term “relates to a matter of public interest”, in accordance with the legislative purpose of s.137.1(3). While there is no single test to determine ‘public interest’, the SCC found that courts ought to assess the expression “as a whole”, by asking whether “some segment of the community would have a genuine interest in receiving information on the subject.” Accordingly, this is not to be a qualitative assessment of the expression, but rather a determination of whether, on a balance of probabilities, the content of the expression is a matter of public interest.
Step 2- s.137.1(4)(a) Merits-Based Hurdle
At Step 2, the burden shifts to the responding plaintiff to show both that there are grounds to believe that the plaintiff’s claim has substantial merit and that the defendant has no valid defences. If the plaintiff fails to meet its burden at this Step, then the underlying claim should be dismissed. The Court interprets the expression ‘grounds to believe’ as a standard that is higher 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 higher than the “reasonable prospect of success standard […] used to animate the ‘plain and obvious’ test.” The ‘grounds to believe” standard is, however, less demanding than the standard required on a motion for summary judgment.
This is a subjective test based on the motion judge’s determination. The motion judge must conclude from their assessment of the record that there is basis in fact and in law to support that the claim has substantial merit and all the proposed defences are invalid.
Section 137.1(4)(a)(i)- Substantial Merit
To establish substantial merit, the plaintiff must demonstrate that the claim has a real prospect of success, which requires that the “claim be legally tenable and supported by evidence that is reasonably capable of belief.”
In the context of a defamation claim (the most common Anti-SLAPP action) it is not necessary at this stage of the analysis to provide actual reputational damage, only that “a realistic threat that the statement, in its full context, would reduce a reasonable person’s opinion of the plaintiff.” The plaintiff does not need to establish that the harm caused by the defendant was intended or careless, as defamation is a strict liability tort.
Section 137.1(4)(a)(ii)- No Valid Defence
On an Anti-SLAPP motion, the onus is initially on the defendant to raise all of the defences upon which it intends to rely. The burden then shifts to the plaintiff to provide grounds to believe that none of the defences have a “real prospect of success” by showing that there is a basis in law and in the record “to support a finding that the defences do not tend to weigh more in favour” of the defendant.  In this analysis, “the word no is absolute… if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed.” Of note, in claims for defamation a defence may not be considered valid if, for example, the allegation is not substantially true (rendering void the defence of justification) or the scope of the occasion of privilege has been exceeded (and thus defeating a defence of qualified privilege, as in Bent).
Step 3- s.137.1(4)(b) Public Interest Hurdle
Step 3, the Public Interest Hurdle, is the crux of Anti-SLAPP and provides the motion judge the ability to dismiss claims that technically have merit on the basis that they are not in the public interest. To do so requires the judge to determine whether there is more weight to the harm suffered by the plaintiff or the public interest in protecting this expression. At this stage of the analysis, it is a “weighing exercise” rather than a “balancing exercise”, meaning that one consideration must outweigh the other.
Public Interest Hurdle- s.137.1(4)(b)(i) Harm Analysis
The plaintiff must demonstrate the existence of harm and that the harm was suffered as a result of the defendant’s expression. Harm at this stage can be either monetary or non-monetary, such as damage to the plaintiff’s reputation. Damage to a plaintiff’s reputation will typically be given significant weight, as reputation is “one of the most valuable assets a person/business can possess” and a person’s reputation should be protected by society’s law just as much as freedom of expression.
Public Interest Hurdle- s.137.1(4)(b)(ii) Weighing of the Public Interest
The term ‘public interest’ is defined differently under s.137.1(4)(b) than it is under s.137.1(3). Section 137.1(3) is concerned with whether the expression relates to a matter of public interest which is an objective, rather than qualitative, assessment. Under s.137.1(4)(b), the quality and motivation of the expression are relevant in determining the level of protection afforded. The weighing exercise should be guided by the core values of s.2(b) of the Charter, such as “the search for truth, participation in political decision-making, and diversity in forms of self-fulfilment and human flourishing.” The closer “the expression is to any of these core values, the greater the public interest in protecting it.”
The form of the expression will also impact weight. For example, testimony before an adjudicative tribunal is entitled to a high level of protection as it would undermine the integrity of the justice system to deter participation in this process through fear of legal retaliation. An unverified allegation that casts doubt on a plaintiff’s professional reputation will fall on the lower end of the spectrum. Conversely, the motivation of the expression, such as to protect the administration of justice by advising colleagues of inaccurate conclusions in expert reports, may fall on the higher end of the spectrum.
v. Outcome of Pointes and Bent
The SCC dismissed the appeals in both Pointes and Bent, although Pointes was the result of a unanimous Court while Bent was a 5-4 split.
The SCC’s decision and analysis in Pointes was consistent with the ONCA’s decision, suggesting that the ONCA’s analyses on this matter are relatively sound and are unlikely to be reviewed again soon by the SCC in the context of this legislation. Pointes is a clear cut example of the Anti-SLAPP legislation being used for its intended purpose: to dismiss a claim with questionable legitimacy issued against a defendant who was acting in the public interest.
The 5-4 decision in Bent demonstrates the high value that is placed on reputational damage and seems to indicate that when a plaintiff suffers significant reputational harm, they should be given the opportunity to vindicate their reputation in court. The strong dissent provides some further areas for consideration in the context of defamation claims, particularly as it relates to the application of the defence of qualified privilege, and whether it is reasonable to require a person to be named explicitly in order for this defence to apply.
B. Subsequent Ontario Court Decisions
Motions and appeals heard after the release of Pointes and Bent have continued to utilize the framework provided by the SCC and have begun to provide further nuance to shape the legal landscape moving forward.
In Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation et al., 2021 ONCA 25, CBC aired a program which reported that chicken sandwiches sold at Subway were only slightly more than 50% chicken. CBC had hired Trent University (“Trent”) to conduct the testing and the results formed the basis of the statements made on the broadcast. Subway sued Trent in defamation and negligence on the basis that the reports were false and that Trent’s testing was inaccurate. Trent brought an unsuccessful Anti-SLAPP motion to dismiss the negligence claim, with the motion judge finding that Trent did not meet the initial Threshold Burden because the negligence claim was brought with respect to Trent’s testing methodology, which did not constitute an expression on a matter of public interest. The motion judge interpreted the statute as being “designed to address expressive torts, not wrongdoing at large.” In overturning this decision, the ONCA clarified that it was an “error of law to view s.137.1 as aimed at a limited category of torts like defamation”; what is important is that there is a nexus between the expression and the plaintiff’s claim. While confirming that claims in negligence can fall within the scope of s.137.1, the ONCA dismissed Subway’s claim as it had no real prospect of success on the issue of whether a relationship of proximity and a duty of care existed necessary to support its claim for pure economic loss against Trent.
In Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, the defendant (“Tru-Path”) was an occupational therapy service involved in a payment dispute with the law firm Sokoloff Lawyers (“Sokoloff”). Tru-Path displayed signs outside Sokoloff’s office alleging that Sokoloff owed Tru-Path over $1,300,000 in outstanding payments. Sokoloff brought a libel action against Tru-Path and Tru-Path responded with a motion to dismiss under the Anti-SLAPP legislation, arguing that the expression related to a matter of public interest as the signs contained information about the alleged unethical conduct of Sokoloff, professionals regulated by the Law Society of Ontario. Tru-Path’s motion was dismissed, as the expression at issue was a private commercial dispute between the parties and did not relate to a matter of public interest. The decision was upheld on appeal, although the ONCA found the motion judge’s analysis to be inappropriate as it considered the motivation and quality of Tru-Path’s expression. Following Pointes, the analysis at the Step 1 Threshold Burden is contextual and should not consider the quality of the expression at this stage; “it is not legally relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest.”
In Schwartz et al. v. Collette, 2021 ONSC 2138, the plaintiff brought an action for defamation and interference with economic relations arising from online comments made by the defendant regarding the plaintiff’s outfitting business and environmental impacts, as well as harassment stemming from the defendant yelling and screaming profanities at the plaintiff in person on several occasions. The defendant brought an Anti-SLAPP motion to dismiss. The ONSC dismissed the plaintiff’s claims that related to expressions made by the defendant on various online forums, as they related to a matter of public interest and the plaintiff did not meet the burden to avoid dismissal under s.137.1(4). The question remained as to whether s.137.1 required the court to dismiss the entire proceeding, as the harassment claim was “unrelated to an expression made with respect to a matter of public interest.” At the second hearing, the ONSC found that dismissal under the Anti-SLAPP framework is not an “all or nothing” proposition and a motion judge is not required to dismiss the entire action simply because a substantial portion is based on public interest expression. The ONSC concluded that “unless the remaining claims can be said to be grounded in matters related to public interest expression” the motion judge does not have discretion to dismiss pursuant to s.137.1, “despite having previously found that the entire action is motivated by a desire to silence public interest expression” of the defendant.  Accordingly, the defendant’s motion to dismiss the harassment claim was denied.
C. Costs Awards
The Anti-SLAPP legislation includes costs provisions whereby a defendant who successfully brings an Anti-SLAPP motion is presumptively entitled to recover full indemnity costs from the plaintiff and is presumptively protected from a negative costs award if their motion is unsuccessful. The costs provisions are an important aspect of this legislation as they provide an additional level of protection for parties advocating in the public interest who may have fewer financial resources to defend a SLAPP brought against them.
As with costs awards on other motions, however, the court ultimately retains discretion to award costs that they deem “appropriate in the circumstances”. In practice, it appears that Courts are reluctant to apply these legislative presumptions, resulting in uncertainty for those both bringing and responding to such motions.
In Pointes, the ONCA ordered 170 Ontario to pay full indemnity costs of the motion per s.137.1(7). However, the ONCA held that the cost presumptions in s.137.1 did not apply on appeal and only required 170 Ontario to pay those costs on a partial indemnity basis. Following 170 Ontario’s unsuccessful appeal to the SCC, it was again ordered to pay appeal costs on a partial indemnity basis. No explanation for this was provided, but it would appear that the SCC has at least tacitly endorsed the ONCA’s determination that s.137.1(7) does not apply to appeal costs and that the ordinary presumption of partial indemnity costs will apply.
In Bent, the majority held that neither party was entitled to costs in accordance with s.137.1(8), noting that the defendant’s motion was legitimate, especially in light of the lack of judicial guidance at the time the motion was brought and it was not an appropriate circumstance to depart from the legislation. However, other Courts have not felt so beholden to the legislative presumption following an unsuccessful motion.
In Sokoloff, Tru-Path was ordered to pay costs of the motion on a partial indemnity basis. The ONCA denied the defendant leave to appeal these costs, noting that exercising discretion to award costs contrary to the legislative scheme is more appropriate in circumstances where “the assertion of the public interest is wholly lacking in merit.” The Court further clarified that an Anti-SLAPP motion is not meant to be used as a screening device to eliminate claims early in the litigation process and as such it is “important to maintain a sense of proportionality where costs are concerned.” Accordingly, the ONCA found that the motion judge’s decision to grant partial indemnity costs was appropriate.
In Subway, the motion judge ordered Trent, the unsuccessful moving party, to pay costs to the plaintiff, contrary to the presumptive no-cost rule in s.137.1(8). The rationale provided was that since Trent did not meet the “relatively low” threshold of showing the proceeding arose from an expression on a matter of public interest, the policies underlying s.137.1 and its no costs provision were inapplicable. In overturning the motion judge’s decision and costs award, the ONCA made no comment on this logic, thus leaving unsuccessful moving parties susceptible to costs awards against them if their motion fails at Step 1.
Finally, in Schwartz, the ONSC ordered the plaintiff to pay substantial indemnity costs for the first hearing and no costs for the second hearing.
The result of these decisions is that while the Anti-SLAPP legislation appears to provide a relatively clear roadmap of what costs to expect for any outcome, the result in practice is that there is no clear knowledge at the outset of what one’s cost exposure on an Anti-SLAPP motion may be. As always, careful consideration must therefore be given to the merits and risks of bringing such a motion.
D. Where Do We Go From Here?
As we have seen, while Ontario’s Anti-SLAPP legislation is primarily engaged in defamation actions, it is also applicable in other types of claims, such as breach of contract or negligence. There is limited Canadian jurisprudence on this topic given the relatively short history of Canadian Anti-SLAPP legislation and the inconsistent application of the framework prior to the SCC guidance in Pointes and Bent. As such, American case law may offer some insight with respect to how this legislation may impact parties to contractual disputes – including insurers – as it becomes more integrated into the Canadian legal system.
Travelers Casualty Insurance Company of America v. Hirsh interpreted California’s Anti-SLAPP statute in the context of a dispute between an insurer (“Travelers”) and independent counsel (“Hirsh)” appointed for Travelers’ insured. Travelers brought a claim against Hirsh for unjust enrichment for failing to provide non-privileged settlement information which denied Travelers’ set off of fees owed to Hirsh. Hirsh brought a motion to strike under California’s Anti-SLAPP statute which provides protection for lawyers for litigation-related speech and activity. The District Court denied the motion as Hirsh’s actions related to post-settlement conduct rather than litigation conduct protected under the statute. The Ninth Circuit affirmed this decision, finding that Travelers “made a prima facie showing of facts supporting [its] cause[s] of action” and established a “probability of prevailing on the merits sufficient to survive the motion to strike.”
In Miller Marital Deduction Trust v. Zurich American Insurance Company, the plaintiff (“Miller Trust”) commenced an action where its insurer (Zurich) was an adverse party. Another defendant brought a counter-claim against Miller Trust and Zurich agreed to provide representation in this claim subject to an extensive reservation of rights. Miller Trust requested that Zurich allow a specific law firm to represent it as independent cumis counsel given Zurich’s reservation of rights and alleged conflict of interest. Zurich denied this request and appointed a lawyer to represent just one of the trustees. Miller Trust commenced an action against Zurich for breach of contract and breach of good faith and fair dealing. Zurich brought an Anti-SLAPP motion challenging both causes of actions on the basis that the claims “arise from allegations about the conduct of attorneys representing Zurich’s insured” which is a protected activity under California’s Anti-SLAPP statute. The trial court dismissed Zurich’s motion.
The California Court of Appeal upheld this decision, finding that the claims did not arise from a protected expression given the only evidence was counsel’s representation of Miller Trust, rather than the underlying basis of the claim. As the claim was not grounded in an expression protected by the statute, this was not an appropriate case to dismiss the plaintiff’s claim.
These American decisions provide an interesting perspective on how Canadian Anti-SLAPP jurisprudence may continue to develop and impact insurers. Although the Ontario legislation differs from its American counterparts, it is certainly possible that defendants may begin attempting to apply the Anti-SLAPP framework to insurance disputes in a similar manner now that the SCC has provided a framework with respect to how this legislation can be utilized.
While still in its relative infancy, it would appear that Ontario’s Anti-SLAPP legislation is effectively achieving its purpose of screening out lawsuits that limit public expression, while also ensuring plaintiffs are able to pursue legitimate claims. The decision in Pointes demonstrates the importance of freedom of expression as a cornerstone of our democracy, while the decision in Bent recognizes that this freedom is not absolute. These competing goals are reflected in the subsequent Ontario jurisprudence. In Schwartz and Sokoloff, the courts recognize the importance of protecting a plaintiff’s right to pursue a legitimate claim against harmful expression that does not benefit the public interest. In Subway, the ONCA demonstrates how the Anti-SLAPP framework can be applied to claims beyond the typical ‘expressive torts’, to protect parties from meritless claims brought in response to expressions on matters of public interest. The potential costs consequences of such motions remain something of a wild card, but approaching the decision with strategic advice from counsel will help ensure an appropriate, risk-relevant decision is made. With the Supreme Court of Canada releasing two recent decisions interpreting the Anti-SLAPP legislation and largely endorsing the decisions of the ONCA, it would be rare to see cases of this type progress further than the ONCA for the near future.
 Ontario, Parliament, Legislative Assembly of Ontario Debates, 41st Parl, 1st Sess, (10 December 2014).
 Protection of Public Participation Act, 2015, S.O. 2015, c. 23 – Bill 52.
 S.137.1(7) and (8).
 1704604 Ontario Ltd. v. Pointes Protection Association 2020 SCC 22 [“Pointes”].
 Bent v Platnick 2020 SCC 23 [“Bent”].
 Bent at para 74.
 Pointes at para 103.
 Pointes at para 24.
 Pointes at para 25.
 Pointes at para 26.
 Pointes at para 27, citing Grant v Torstar Corp., 2009 SCC 61,  3 S.C.R 640, [“Grant”] at paras 101-102.
 Bent at para 84.
 Pointes at para 58.
 Pointes at para 50.
 Pointes at para 51.
 Pointes at para 42.
 Pointes at para 42.
 Pointes at para 49.
 Bent at para 96.
 Bent at para 103.
 Pointes at para 58.
 Pointes at para 62.
 Pointes at para 66.
 Pointes at para 68.
 Bent at para 146.
 Pointes at para 74.
 Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982 (“Charter”).
 Pointes at para 77 citing R v Sharpe, 2001 SCC 2 at para 182.
 Pointes at para 77.
 Subway v. CBC, 2019 ONSC 6758 at para 104.
 Subway at para 38.
 Sokoloff at para 20, citing Pointes at para 28.
 The ONSC acknowledged at para 1 that “harassment” is not a standalone tort and the plaintiff intended to amend the pleading to a claim for “intentional infliction of mental/emotional suffering”.
 Schwartz & Red Lake Outfitters v. Collette, 2020 ONSC 6580.
 Schwartz at para 8.
 Schwartz at para 19.
 Schwartz at para 21.
 Sokoloff at para 45.
 Sokoloff at para 47.
 The ONCA overturned the costs award to align with its decision to allow Trent’s appeal on the merits. Costs in the amount of $45,000 were then awarded to Trent in accordance with a written agreement between the parties.
 Schwartz et al. v. Collette, 2021 ONSC 5620 at paras 21, 27, 28 and 46.
 Travelers Casualty Insurance Company of America v. Hirsh (Aug. 3, 2016) 2016 WL 4120689, [“Travelers”].
 Travelers at 1182.
 Miller Marital Deduction Trust v. Zurich American Insurance Company, 41 Cal. App. 5th 247 (2019), [“Miller”].
 A term used in California state court litigation to refer to independent counsel retained by a defendant in a lawsuit where there is an insurance policy but there is a conflict of interest between the insurance company and the insured defendant, Miller at 252.
 Miller at 255.
 Miller at 255.