Section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) was enacted in response to strategic litigation against public participation (“SLAPP”) lawsuit. Such lawsuits use the court system to limit the effectiveness of the opposing party’s speech or conduct. The stated purpose of sections 137.1 to 137.5 of the CJA is to:
Encourage individuals to express themselves on matters of public interest;
• Promote broad participation in debates on matters of public interest;
• Discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and,
• Reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
Section 137.1(2) defines “expression” broadly as “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publically or privately, and whether or not it is directed at a person or entity”.
The phrase “public interest” is not defined in the CJA. However, in Grant v. Torstar Corp., the Supreme Court stated that there is no single test for public interest. Rather, to be in the public interest, some segment of the public must have a genuine stake in knowing about the matter published.
The onus, initially, is on the moving party to satisfy the judge that the proceeding arises from an expression that relates to a matter of public interest.
The burden then shifts to the responding party to show (i) that the proceeding has “substantial merit”; (ii) the moving party has no valid defence; and (iii) the expression caused it to suffer harm sufficiently serious that there is greater public interest in allowing the claim to proceed than in protecting the expression.
The Case Of Ed Smith
In Niagara Peninsula Conservation Authority v. Smith, the Court applied section 137.1 of the CJA to dismiss the defamation actions brought against the defendant, Ed Smith.
Mr. Smith had published a report titled – “A Call for Accountability at the Niagara Peninsula Conservation Authority” (the “Report”) – which, among other things, raised questions about the governance of the Niagara Peninsula Conservation Authority (“NPCA”). In particular, the Report contained information about two contracts between the plaintiffs, alleging that these “contracts may have been given as consideration for each other, or swapped”.
In dismissing the plaintiffs’ defamation claim, the Court stated, among other things, that there are no grounds to believe that the proceeding has substantial merit, because a government entity (the NPCA) cannot sue an individual for defamation. Moreover, the Report is an expression that relates to a matter of public interest: the governance of the NPCA, a publically funded government body. Lastly, Mr. Smith had the defence of qualified privilege available to him, together with a lack of malice on his part in publishing the Report.
Ultimately, the NPCA was ordered to pay Mr. Smith full indemnity costs, totalling more than $130,000, for having to defend the defamation action. This case is a good example of how the courts have used s.137.1 of the CJA to protect citizens, who express themselves on matters of public interest, without motivation of malice or hatred.
  S.C.J. No. 61, 2009 SCC 61 [“Grant”].
 Grant at para. 103.
 CJA, s.137.1(3).
 CJA, s.137.1(4).
 2017 ONSC 6973, 286 A.C.W.S. (3d) 395 (OSCJ) [“Smith”].
 Smith at para. 8.
 Smith at para. 47.
 Smith at para. 54.
 Smith at para. 58.