“Valid Defence” Under Ontario’s Anti-SLAPP Legislation
The Court of Appeal recently released another Anti-SLAPP decision - Bondfield Construction Company Limited v The Globe and Mail Inc, 2019 ONCA 166.
Bondfield’s defamation case against the Globe was dismissed at the Superior Court level under section 137.1 of the Courts of Justice Act. The issue on this appeal was interpreting s137.1(4)(a)(ii) - does the moving party have a “valid defence” in the proceeding.
Section 137.1 of the Courts of Justice Act is Ontario’s anti-SLAPP legislation. A defendant can bring a motion for dismissal at any point in the proceedings if the test in section 137.1(3) & (4) is met.
Threshold under 137.1(4)(a)(ii)
The Motion Judge stated that section 137.1(4)(a)(ii) requires Bondfield to establish that the Globe has “no valid defence whatsoever”. In other words, the case is dismissed if the Globe has any hint of a defence at all to the Bondfield’s claim, even a defence that could “go either way”.
The Court of Appeal rejected this interpretation. They stated that “no valid defence” means that there must be no chance of a successful defence. A “valid defence” is one that will almost certainly prevail at trial. The Court Stated:
 The motion judge placed the onus on Bondfield to show that “the Globe has no valid defence whatsoever.” As explained in Pointes, s. 137.1(4)(a)(ii) imposes a significantly less onerous burden on Bondfield. Bondfield was required to show that a reasonable trier could conclude that the Globe did not have a valid defence. Bondfield would meet that onus if it showed that a reasonable trier could reject all of the various defences put in play by the Globe. A determination that a defence “could go either way” in the sense that a reasonable trier could accept it or reject it is a finding that a reasonable trier could reject the defence. That is as far as Bondfield had to go to meet its onus under s. 137.1(4)(a)(ii). The motion judge erred in law in holding that Bondfield was required to show that the Globe had no valid defence. Bondfield was only required to show that a reasonable trier could reject the defences advanced by the Globe.
The Court of Appeal has made clear the section 137.1 of the Courts of Justice Act is not a sledgehammer ending any and all defamation claims relating to public interest.
The Defendant’s case must be very strong to succeed in an Anti-SLAPP motion. Essentially, a defendant must show that there is little to no chance a judge could reject their defence.