Small Claims Court Judges Cannot Grant Anti-SLAPP Orders

In 2015, the Province amended the Courts of Justice Act (“CJA”) to target “strategic lawsuits against public participation”, known as “SLAPP” claims. Section 137.1 of the CJA permits a defendant to bring a motion to dismiss a proceeding if it can establish that the proceeding arises from an expression that relates to a matter of public interest. Such a proceeding will be dismissed unless the plaintiff can establish the merits of its claim, and the weakness of the defence, at a fairly high threshold. The anti-SLAPP provisions of the CJA are typically used in response to defamation claims.

 Recently, in Bruyea v. Canada (Minister of Veteran Affairs), 2019 ONCA 599, the Ontario Court of Appeal addressed the question of whether the Small Claims Court has jurisdiction to dismiss a proceeding pursuant to the anti-SLAPP legislation. The plaintiff in that case was a Canadian Armed Forces veteran who wrote an article criticizing the pension benefit program for disabled veterans. In response, Seamus O’Regan, then the Minister of Veterans Affairs, published an article saying that the plaintiff was “stating mistruths” about the program. The plaintiff commenced a Small Claims action against the Minister for defamation.

The Minister brought a motion to dismiss the plaintiff’s lawsuit as a SLAPP claim. The deputy judge of the Small Claims Court dismissed the claim under section 137.1 of the CJA. In doing so, the deputy judge held that the Minister’s statements constituted expression related to a matter of public interest and that the plaintiff had not proven that its claim possessed substantial merit. The plaintiff appealed.

The Court of Appeal analyzed the language of the relevant provision, which uses the word “judge” and not “court” or “deputy judge”. The Court of Appeal viewed this as an express omission which signalled the legislature’s intention for such jurisdiction to be exercised by judges only. The Court therefore concluded that deputy judges of the Small Claims Court do not have authority to grant orders under section 137.1 of the CJA. The matter was returned to the Small Claims Court for a determination on the merits.

Given that deputy judges preside over virtually all proceedings in the Small Claims Court, the ability to bring an anti-SLAPP motion will generally be unavailable in that court. However, it remains open to defendants to seek to have a Superior Court Judge preside over an anti-SLAPP motion or to transfer an entire Small Claims Court proceeding to the Superior Court of Justice in order to rely on the anti-SLAPP provisions in the CJA. The courts will likely soon be asked to determine whether such a request should be granted.

By: Kyle Gossen and Andrew Valela