COURT OF APPEAL FOR ONTARIO

CITATION: 1704604 Ontario Ltd. v. Pointes Protection
    Association, 2018 ONCA 685

DATE: 20180830

DOCKET: C62231

Doherty, Brown and Huscroft JJ.A.

BETWEEN

1704604 Ontario Ltd.

Plaintiff (Respondent)

and

Pointes Protection Association, Peter Gagnon, Lou
    Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini

Defendants (Appellants)

Mark Wiffen, for the appellants

J. Paul R. Cassan and Tim Harmar, for the respondent

Heard: December 19, 2016, and June 27, 2017.

On appeal from the order of Justice
Edward
    E.
Gareau of the Superior Court of Justice, dated May 9, 2016, with
    reasons reported at 2016 ONSC 2884, 84 C.P.C. (7th) 298.

Doherty J.A.:

A.

Introduction

[1]

Freedom of expression is a constitutionally-protected right in
    Canada. The free and open expression of divergent, competing, and strong viewpoints
    on matters of public interest is essential to personal liberty,
    self-fulfillment, the search for the truth, and the maintenance of a vibrant
    democracy.

[2]

From time to time,
    those who are the target of criticism resort to litigation, not to vindicate
    any genuine wrong done to them, but to silence, intimidate, and punish those
    who have spoken out. Litigation can be a potent weapon in the hands of the rich
    and powerful
. The financial and personal costs
    associated with defending a lawsuit, particularly one brought by a
    deep-pocketed plaintiff determined to maximize the costs incurred in defending
    the litigation, can deter even the most committed and outspoken critic.

[3]

Lawsuits brought to silence and/or financially punish
    ones critics have come to be known as Strategic Lawsuits Against Public
    Participation (SLAPP). Defamation lawsuits, perhaps because of the relatively
    light burden the case law places on the plaintiff, have proved to be an ideal
    vehicle for SLAPPs.

[4]

SLAPPs have been part of the litigation
    landscape in North America for decades: Michaelin Scott & Chris Tollefson,

Strategic Lawsuits Against Public
    Participation: The British Columbia Experience
(2010) 19:1 R.E.C.I.E.L. 45, at 45. They have evoked various legislative
    responses sometimes referred to as Anti-SLAPP legislation. This appeal and the
    others heard with it require this court, for the first time, to interpret
    Ontarios Anti-SLAPP legislation.

[5]

The first Anti-SLAPP legislation in Ontario was
    introduced in December 2008 by way of a private members bill. That Bill did
    not get past first reading: Bill 138,
Protection of Public
    Participation Act 2008
, 1st Sess.,
    39th Leg., Ontario, 2008
. In 2010, Ontario struck
    an advisory panel to examine the SLAPP phenomenon and make recommendations as
    to the appropriate legislative response. In October 2010, that panel
    recommended Anti-SLAPP legislation:
Anti-SLAPP
    Advisory Panel,
Report to the Attorney General
(Ontario: Ministry of the Attorney General, 2010)
. In November 2015, Bill 52, the
Protection of Public
    Participation Act, 2015
,
came into force: S.O. 2015, c. 23 (the Act). The Act applied to
    any action commenced on or after December 1, 2014.

[6]

The Act amended various statutes, including the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43
    (
CJA
)
. Section 3 of the Act introduced ss. 137.1 to 137.5 to the
CJA
.
    Those sections created a new pretrial procedure allowing defendants to move
    expeditiously and early in the litigation for an order dismissing claims
    arising out of expressions by defendants on matters of public interest. The
    sections are attached as Appendix A to these reasons.

[7]

Stripped to its essentials, s. 137.1 allows a
    defendant to move any time after a claim is commenced for an order dismissing that
    claim. The defendant must demonstrate that the litigation arises out of the
    defendants expression on a matter relating to the public interest. If the
    defendant meets that onus, the onus shifts to the plaintiff to demonstrate that
    its lawsuit clears the merits-based hurdle in s. 137.1(4)(a) and the public
    interest hurdle in s. 137.1(4)(b). The details of the legislation are analyzed
    below.

B.

the section 137.1 appeals before the court

[8]

In April 2016, the appellants, Pointes
    Protection Association (Pointes) and individual members of its executive
    committee (referred to collectively as Pointes or the defendants), brought
    a motion under s. 137.1 of the
CJA
to dismiss an action that had been brought
    against them by 1704604 Ontario Ltd. (170 Ontario) for breach of contract. In
    that lawsuit, 170 Ontario alleged that the defendants had breached the terms of
    a Settlement Agreement (the Agreement) when one of the defendants gave
    evidence in a proceeding before the Ontario Municipal Board (OMB). 170
    Ontario claimed that the terms of the Agreement prohibited the defendants from
    advancing, through the evidence of one of the defendants, the opinions offered
    before the OMB.

[9]

The motion judge dismissed the defendants motion
    and ordered that the action proceed. The defendants appealed to this court
    pursuant to s. 6(1)(d) of the
CJA
. That section provides a right of
    appeal from an order made under s. 137.1.

[10]

The appeal was argued in December 2016. This
    court had not previously considered s. 137.1 of the
CJA
. During oral argument, counsel referred to decisions made on s.
    137.1 motions brought in other proceedings. Some of those decisions were under
    appeal to this court.

[11]

After oral argument, the panel reserved
    judgment. Upon further consideration, the panel decided that, in fairness to
    all concerned, the outstanding appeals involving the proper interpretation of s.
    137.1 should be heard together before the same panel. Unfortunately, that meant
    that this appeal had to be reargued before a different panel.

[12]

Six appeals were heard together.
[1]
The court reserved judgment. All of the appeals require an
    interpretation of various components of s. 137.1. There are also discrete issues
    raised in each appeal.

[13]

In these reasons, I will set out my
    understanding of the various provisions of s. 137.1. I will also address the
    specific arguments raised in this appeal. When I consider the other appeals, I
    will not repeat my s. 137.1 analysis. I will, however, address the specific
    issues raised in those appeals.

C.

the pointes litigation

[14]

170 Ontario wanted to develop a 91-lot
    subdivision in the west end of Sault Ste. Marie. It needed the approval of the
    Sault Ste. Marie Region Conservation Authority (SSMRCA) and the Sault Ste.
    Marie City Council (City Council).

[15]

Pointes is a not-for-profit corporation
    incorporated in 2008 specifically to provide a coordinated response on behalf
    of some area residents to 170 Ontarios development proposal. Pointes opposed
    the proposed development on environmental grounds.

[16]

170 Ontario first went to the SSMRCA. Its
    initial application failed, but a second succeeded and SSMRCA passed the
    necessary resolutions.

[17]

Pointes brought an application for judicial
    review of the SSMRCAs decision. Pointes sought a declaration that the SSMRCA resolutions
    were illegal and beyond the SSMRCAs jurisdiction.

[18]

While the judicial review application was
    pending in the Divisional Court, 170 Ontario sought the approval of the City
    Council. The proposed development required an amendment to the Citys official
    plan. In July 2013, the City Council turned down 170 Ontarios application. 170
    Ontario appealed to the OMB. Pointes was granted standing in the proceeding
    before the OMB.

[19]

In September 2013, while Pointess application
    for judicial review and 170 Ontarios appeal to the OMB were both pending, the
    parties settled the judicial review proceeding. The signatories to the
    Agreement included 170 Ontario, Pointes, and the individual members of Pointess
    executive committee. Each of the individual members acknowledged that he or she
    was bound by the terms of the Agreement.

[20]

Under the terms of the Agreement, Pointess
    judicial review application was to be dismissed on consent without costs. 170
    Ontario agreed that it would not seek the costs of an earlier successful motion
    it had brought in the Divisional Court for security for costs on the judicial
    review application. In December 2013, the judicial review application was
    dismissed on consent in accordance with the terms of the Agreement.

[21]

In addition to bringing the judicial review
    proceedings to an end, the terms of the Agreement also put limitations on the
    future conduct of Pointes and the individual members of the executive who
    signed the Agreement. In para. 4 of the Agreement, the defendants agreed that they
    would take no further court proceedings seeking the same or similar relief that
    had been sought in their judicial review application. In para. 6, the key
    provision in 170 Ontarios subsequent breach of contract action, the defendants
    promised that in any proceeding before the OMB, or in any other subsequent
    legal proceeding, they would not advance the position that the SSMRCA
    resolutions were illegal, invalid, or contrary to the relevant environmental legislation.
    The defendants also undertook to not advance any claim that the SSMRCA had
    exceeded its jurisdiction by acting without reasonable evidence to support its
    decision, or by considering extraneous factors in passing the resolutions
    allowing the development to proceed.

[22]

170 Ontario proceeded with its appeal to the OMB
    from the City Councils refusal to amend the official plan. In the course of
    the OMB hearing, Pointes called Peter Gagnon, its president and a signator of
    the Agreement. Over the objection of counsel for 170 Ontario, Mr. Gagnon testified
    that, in his opinion, the proposed development would result in significant loss
    of coastal wetlands, thereby causing substantial environmental damage. Mr.
    Gagnon had given similar evidence before the SSMRCA.

[23]

In February 2015, the OMB dismissed 170
    Ontarios appeal. In doing so, Member Taylor held that the proposed development
    did not have appropriate regard for the effective development on matters of
    provincial interest, and specifically that the proposed development was not
    in the public interest as it relates to the loss of coastal wetland. Member
    Taylor preferred Mr. Gagnons opinions to those of 170 Ontarios expert. The
    development has not proceeded.
[2]

[24]

About six months after the OMB dismissed 170
    Ontarios appeal, 170 Ontario sued the defendants for breach of contract. In
    its Statement of Claim, 170 Ontario asserted that the defendants had breached
    the terms of the Agreement when Mr. Gagnon gave evidence at the OMB concerning
    the proposed developments negative impact on the wetlands and the associated environmental
    consequences. 170 Ontario claimed that those very matters had been considered
    by the SSMRCA. According to the Statement of Claim, it was implicit in the [Agreement]
     that the wetlands issue was settled.

[25]

The defendants did not file a defence, but
    responded with a motion under s. 137.1 for an order dismissing 170 Ontarios
    claim. The defendants alleged that Mr. Gagnons testimony, which provided the
    factual basis for the alleged breach of contract, related to the environmental
    impact of the proposed development, a matter of public interest. The defendants
    further argued that 170 Ontario could not meet its onus under either branch of s.
    137.1(4), and thus that the action should be dismissed.

[26]

The motion judge accepted that the lawsuit related to expression on
    a matter of public interest. The burden therefore fell on 170 Ontario to
    demonstrate that the action should be allowed to proceed. The motion judge
    concluded that 170 Ontario had discharged that burden. He dismissed the defendants
    s. 137.1 motion and directed that the action should proceed.

D.

The Legislation

(i)

The Legislative History of Section 137.1

[27]

The
    language of a statute must take centre stage in the statutory interpretation
    process. However, legislative purpose and intent provide important context in discerning
    the meaning of the legislation. Legislative history, including Hansard evidence
    to a limited extent, can provide insight into legislative purpose and intent:
    see
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at paras.
    31 and 35;
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 51.
    Unlike many statutory provisions, s. 137.1 has a clear legislative history. I
    will briefly review that history before turning to the language of s. 137.1.

[28]

The
    pertinent history of Ontarios Anti-SLAPP legislation begins with the 2010 Report
    of the Anti-SLAPP Advisory Panel to the Attorney General. Many of the Panels
    recommendations ultimately found their way into the legislation.

[29]

In
    the Report, the Panel recognized the need to protect and foster a broad
    spectrum of expression relating to matters of public interest. The Panel
    proposed a pretrial procedure designed to quickly and inexpensively identify
    and dismiss those unmeritorious claims that unduly entrenched on an individuals
    right to freedom of expression on matters of public interest. The Panel
    observed, at para. 18 of its Report:

The legislation should therefore state that the purpose of the
    statute is to expand the democratic benefits of broad participation in public
    affairs and to reduce the risk that such participation will be unduly hampered
    by fear of legal action. It would seek to accomplish these purposes by
    encouraging the responsible exercise of free expression by members of the
    public on matters of public interest and by discouraging litigation and related
    legal conduct that interferes unduly with such expression.

[30]

The
    Panel recognized, however, that other interests that could conflict with freedom
    of expression also deserved vindication through the legal process, stating, at
    paras. 36-37:

The fact that a legal action may have an adverse effect on the
    ability of persons to participate in discussion on matters of public interest
    should not be sufficient to prevent the plaintiffs action from proceeding. The
    protection and promotion of such expression should not be a cover for
    expression that wrongfully harms reputational, business or personal interests
    of others.

Conversely, the fact that a plaintiffs claim may have only
    technical validity should not be sufficient to allow the action to proceed. If
    an action against expression on a matter of public interest is based on a
    technically valid cause of action but seeks a remedy for only insignificant
    harm to reputation, business or personal interests, the actions negative
    impact on freedom of expression may be clearly disproportionate to any valid
    purpose the litigation might serve.

[31]

The
    Panel identified a two-pronged approach for distinguishing between those claims
    that sought to unduly limit a defendants freedom of expression and those claims
    that legitimately sought to vindicate a wrong suffered as a result of a defendants
    exercise of his or her freedom of expression. The first prong looked to the
    merits of the plaintiffs claim. The second sought to measure the public
    interest served by allowing the plaintiffs action to proceed against the harm caused
    by that action to the defendants freedom of expression: see paras. 37-38.

[32]

Ultimately,
    the two-pronged approach suggested by the Panel was tracked in Ontarios
    Anti-SLAPP legislation, although the public interest balancing described in the
    legislation is somewhat different than that proposed by the Panel: see ss.
    137.1(4)(a) and (b).

[33]

The
    comments of the Attorney General at the time the proposed legislation received
    second reading shed further light on its purpose and intent:

[TRANSLATION:] The purpose of the Bill is to protect freedom of
    expression. It aims to achieve a significant balance, to the benefit of all
    parties to a dispute.
Balance is a constant theme: the need to strike a
    balance that will end abusive litigation while allowing legitimate actions.

[The Bill] does not create a so-called licence to slander.
    Instead, the Bill aims to protect expression on matters of public interest.
    What the Bill would do is let a court review lawsuits brought against such
    expression at an early stage. It would then be up to the court to decide
    whether the expression at issue is likely to cause serious harm. If so, the
    court may allow the lawsuit to continue in the normal course of litigation.

I strongly believe that the law must defend reputation, but
    not at any cost and not in every case. I do not believe that a mere technical
    case  without actual harm  should be allowed to suppress the kind of
    democratic expression that is crucial for our democracy
: Ontario, Legislative Assembly,
Official
    Report of Debates (Hansard)
, 41st
    Parl., 1st Sess., No. 41A (10 December 2014), at pp. 1971-72 (Hon. Madeleine
    Meilleur)
.
[Emphasis added.]

[34]

At
    third reading, the Attorney General again emphasized that the purpose of the
    legislation was not to short-circuit actions involving truly harmful
    defamatory attack[s]. She explained:

This Bill would provide a process for the courts to evaluate
    whether free expression on a matter of public interest should be subject to a
    lawsuit by having the courts make an evaluation in several steps. First, the
    views expressed by a citizen must be on a matter of public interest and not
    simply a private quarrel or personal allegations. Second, there must be grounds
    to believe that the case can succeed on its merits. Finally, there must be some
    likely harm to the party that starts the lawsuit. [TRANSLATION:]
Thus, a
    citizen cannot be silenced or punished for the simple reason that the person
    who is the target of the expression is not happy. The court must be satisfied
    that the harm done is more than the value of freedom of expression in the
    public interest
: Ontario, Legislative
    Assembly,
Official Report of Debates (Hansard)
, 41st Parl., 1st Sess., No. 112 (27 October 2015),
    at p. 6017 (Hon. Madeleine Meilleur)
.
[Emphasis added.]

(ii)

Overview of the Legislation

[35]

The
    section of the Act that introduced ss. 137.1 to 137.5 into the
CJA
is
    entitled
Prevention of Proceedings that Limit Freedom of Expression on
    Matters of Public Interest (Gag Proceedings)

. While the title of a legislative provision is far from
    determinative of its meaning, this title explicitly indicates that the purpose
    of the legislation is to prevent the use of litigation to gag those who would
    speak out or who have spoken out on matters of public interest.

[36]

Section
    137.1(1) begins with a statement of the purposes of the provision:

(a) to encourage individuals to express themselves on matters
    of public interest;

(b) to promote broad participation in debates on matters of
    public interest;

(c) to discourage the use of litigation as a means of unduly
    limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in
    debates on matters of public interest will be hampered by fear of legal action.

[37]

The
    purposes set down in s. 137.1(1) leave no doubt that the legislation was
    intended to promote free expression on matters of public interest by discouraging
    and reducing the risk that litigation would be used to unduly limit such expression.

[38]

To
    achieve the purposes set down in s. 137.1(1), s. 137.1(3) creates a new pretrial
    remedy. A defendant may move at any time after the proceeding is commenced for
    an order dismissing the proceeding: s. 137.2(1). Section 137.1(3) reads, in
    part:

[A] judge shall, subject to subsection (4), dismiss the
    proceeding against the person if the person satisfies the judge that the
    proceeding arises from an expression made by the person that relates to a
    matter of public interest.

[39]

The
    word expression is defined broadly in s. 137.1(2) as:

[A]ny communication, regardless of whether it is made verbally
    or non-verbally, whether it is made publicly or privately, and whether or not
    it is directed at a person or entity.

[40]

The
    phrase a matter of public interest in s. 137.1(3) is not defined in the
    legislation.

[41]

Standing
    alone, s. 137.1(3) would lead to the dismissal of many meritorious claims. To
    achieve the appropriate balance described by the Panel and the Attorney General
    at the time, subsection (3) is subject to subsection (4). That section provides
    that claims that would otherwise be dismissed under subsection (3) shall not be
    dismissed if the plaintiff (the responding party on the motion) satisfies the motion
    judge of two things. First, the plaintiff must clear a merits-based hurdle in
    s. 137.1(4)(a). That subsection requires that the plaintiff satisfy the motion
    judge that:

[T]here are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding.

[42]

If
    the plaintiff clears the merits hurdle in s. 137.1(4)(a), it must also clear
    the public interest hurdle in s. 137.1(4)(b). That provision requires that the plaintiff
    satisfy the motion judge that:

[T]he harm likely to be or have been suffered by the responding
    party [plaintiff] as a result of the moving partys [defendants] expression is
    sufficiently serious that the public interest in permitting the proceeding to
    continue outweighs the public interest in protecting that expression.

[43]

Various
    provisions in s. 137.1 contain procedural rules intended to expedite the
    hearing of the s. 137.1 motion and reduce the costs associated with bringing
    the motion: see ss. 137.1(6), 137.2, and 137.3. Other provisions stay the
    action in which the motion is brought pending the outcome of the motion: see ss.
    137.1(5) and 137.4. Still other provisions potentially impose significant cost
    consequences on plaintiffs whose claims are dismissed on a s. 137.1 motion,
    while at the same time providing that plaintiffs who successfully defeat s.
    137.1 motions should not, in the normal course, receive their costs of the
    motion: see ss. 137.1(7) and 137.1(8).

[44]

Section
    137.1(9) is a unique provision. It allows the motion judge to award damages to
    the defendant (moving party) if the defendant is successful in having the
    proceedings dismissed and satisfies the motion judge that the plaintiff brought
    the proceedings in bad faith or for an improper purpose.

[45]

The
    purpose of s. 137.1 is crystal clear. Expression on matters of public interest is
    to be encouraged. Litigation of doubtful merit that unduly discourages and
    seeks to restrict free and open expression on matters of public interest should
    not be allowed to proceed beyond a preliminary stage. Plaintiffs who commence a
    claim alleging to have been wronged by a defendants expression on a matter of
    public interest must be prepared from the commencement of the lawsuit to
    address the merits of the claim and demonstrate that the public interest in
    vindicating that claim outweighs the public interest in protecting the
    defendants freedom of expression.

[46]

Significantly,
    the Act does not, except in a minor way, alter the substantive law as it
    relates to claims based on expressions on matters of public interest.
[3]
There are no new defences created for those who speak out on matters of public
    interest. The law of defamation remains largely unchanged. Similarly, nothing
    in the Act affects the substantive law applicable to 170 Ontarios breach of
    contract claim.

[47]

Nor
    does s. 137.1 invoke the abuse of process model favoured in the now repealed
    British Columbia Anti-SLAPP legislation.
[4]
Aside from the discretionary damages provision in s. 137.1(9), s. 137.1 does
    not fix on the plaintiffs purpose or motive in bringing the claim as the
    determining factor, but instead assesses the potential merits of the claim and
    the effects of permitting the claim to proceed on competing components of the
    public interest. The emphasis on the litigations effect over its purpose is
    said to provide a more streamlined and accurate assessment of the legitimacy of
    the claims:
Anti-SLAPP Advisory Panel, at
paras.
    32-35. That said, the purpose of the lawsuit can be an important consideration
    on a s. 137.1 motion. If the motion judge determines that the plaintiffs
    actual purpose in bringing in the lawsuit was to gag the target of the
    lawsuit on a matter of public interest, it seems highly unlikely that the
    lawsuit would clear the public interest hurdle in s. 137.1(4)(b).

[48]

Instead
    of creating new defences, removing or modifying existing causes of action, or
    providing for a more vigorous abuse of process remedy, s. 137.1 seeks to
    achieve the purposes stated in s. 137.1(1) by first, distinguishing between
    claims that arise from an expression that relates to a matter of public
    interest and other claims, and second, by providing for the early and
    inexpensive dismissal of claims based on expressions relating to matters of public
    interest, either because those claims lack sufficient merit to proceed, or
    because the public interest is, on balance, not served by allowing the action
    to proceed to an adjudication on the full merits.

[49]

While
    the purpose of s. 137.1 is clear, as is often the case, the devil is in the
    details of the procedure created by s. 137.1. I turn now to those details.

(iii)

Section 137.1(3): The Threshold Requirement

[50]

For
    convenience, I repeat the section:

[A] judge shall, subject to subsection (4), dismiss the
    proceeding against the person if the person satisfies the judge that the
    proceeding arises from an expression made by the person that relates to a
    matter of public interest.

[51]

Section
    137.1(3) puts the onus on the defendant (moving party) to satisfy the motion
    judge that: (i) the proceedings arise from an expression made by the defendant,
    and (ii) the expression relates to a matter of public interest. The word
    satisfies indicates that the defendant must establish both criteria on the
    balance of probabilities.

[52]

Expression,
    as defined in s. 137.1(2) (see
above at
    para.
39), includes non-verbal communication and private
    communications.
[5]
A legal proceeding arises from an expression if that expression grounds the plaintiffs
    claim in the litigation. A motion judge reviewing the claim should have little
    difficulty deciding whether the defendant has established that a claim arises
    from an expression made by the defendant. Only those claims are subject to s.
    137.1.

[53]

If
    the claim arises from an expression, the defendant must also show, on the
    balance of probabilities, that the expression relates to a matter of public
    interest. That phrase is not defined.

[54]

The
    phrase public interest is used in two different ways in s. 137.1. In s. 137.1(4)(b),
    the phrase is used as a noun to refer to evaluations of the societal interests
    served by each of the defendants expression and the plaintiffs claim. The
    phrase public interest as used in s. 137.1(3) (and s. 137.1(1)) has a
    different meaning. It modifies the word matter, which refers to the subject
    matter of the expression giving rise to the claim. The subject matter of the
    expression must be one that is of public interest. The public interest as
    referred to in s. 137.1(3) is determined by asking  what is the expression
    about, or what does it pertain to?

[55]

The
    phrase public interest in s. 137.1(3) is not qualified in any way. It does
    not require that the expression actually furthers the public interest. A
    qualitative assessment of the expressions impact on the issue to which it is
    directed is not part of the s. 137.1(3) inquiry. Nothing in the section
    justifies any distinction among expressions based on the quality, merits, or
    manner of the expression. An expression that relates to a matter of public
    interest remains so if the language used is intemperate or even harmful to the
    public interest. For example, a statement relating to a matter of public
    interest that is demonstrably false is nonetheless an expression relating to a
    matter of public interest: see
Anti-SLAPP
    Advisory Panel, at
paras. 28-31.

[56]

In
    reading s. 137.1(3) expansively to capture all expressions that relate to
    matters of public interest, one must bear in mind that the defendant who
    satisfies its onus under that subsection is not entitled to any relief. A finding
    in favour of the defendant under s. 137.1(3) only opens the claim to
    examination under both components of s. 137.1(4). That section provides the
    mechanism for separating claims arising from expressions on matters relating to
    public interest that should be allowed to proceed from those that should not. Nonetheless,
    passing the threshold requirement in s. 137.1(3) is significant in that it
    moves the burden of persuasion to the plaintiff (responding party) to satisfy
    the motion judge that the action should proceed.

[57]

A
    broad reading of the phrase public interest in s. 137.1(3) is consistent with
    the purposes described in s. 137.1(1). Any lawsuit that attacks a defendants
    expression on a matter of public interest has the potential to unduly discourage
    public discourse on matters of public interest. Mitigating that risk is best
    achieved by allowing wide access to the pretrial remedy provided by s. 137.1. The
    ultimate availability of the remedy will depend on the proper application of s.
    137.1(4).

[58]

What
    is a matter of public interest? Like virtually all of the motion judges who
    have wrestled with this issue, I find considerable assistance in the judgment
    of the Supreme Court of Canada in
Grant v. Torstar Corp.
, 2009 SCC 61,
    [2009] 3 S.C.R. 640. In that case, the court, following the path cut by this
    court in
Cusson v. Quan
, 2007 ONCA 771, 87 O.R. (3d) 241, at paras.
    133-44, revd on other grounds, 2009 SCC 62, [2009] 3 S.C.R. 712, recognized a
    defence of responsible communication on matters of public interest. Chief
    Justice McLachlins analysis of the meaning of matters of public interest, at
    paras. 99-109, in the context of establishing the borders of the new defence,
    is properly applied to the interpretation of the phrase, a matter of public
    interest in s. 137.1(3).

[59]

There
    is no exhaustive list of topics that fall under the rubric public interest. Some
    topics are inevitably matters of public interest. The conduct of governmental
    affairs and the operation of the courts come to mind. Other topics may or may
    not raise matters of public interest, depending on the specific circumstances:
Grant
    v. Torstar Corp.
, at paras. 103-106.

[60]

The
    context of a particular expression can be crucial in determining whether that
    expression relates to a matter of public interest. If the expression that gives
    rise to the lawsuit is part of a broader communication, the subject matter of
    the impugned expression is determined by reference to the communication as a
    whole:
Grant v. Torstar Corp.
, at para. 101. There is a distinction
    between statements or other expressions that make a reference to something of
    public interest and expressions that relate to a matter of public interest.
    Section 137.1(3) captures only the latter. A brief incidental reference to a topic
    capable of relating to a matter of public interest, in the course of a lengthy exchange
    of communications devoted to a purely private dispute between the parties, may not
    be regarded as an expression relating to a matter of public interest. However,
    the same comment in another context may be regarded as relating to a matter of
    public interest.
[6]
The distinction lies in the answer to the question  what is the expression,
    when placed in its context and taken as a whole, about?

[61]

A
    matter of public interest must be distinguished from a matter about which the
    public is merely curious or has a prurient interest:
Grant v. Torstar Corp.
, at paras. 102, 105. Public people are entitled to private
    lives. Expressions that relate
to private matters are not converted
    into matters relating to the public interest merely because those expressions concern
    individuals in whom the public have an interest or involve topics that may titillate
    and entertain.

[62]

An
    expression can relate to a matter of public interest without engaging the
    interest of the entire community, or even a substantial part of the community.
    It is enough that some segment of the community would have a genuine interest
    in the subject matter of the expression:
Grant v. Torstar Corp.
, at
    paras. 102 and 105.

[63]

Public
    interest does not turn on the size of the audience. Especially in todays
    world, communications on private matters can find very large audiences quickly.
    On the other hand, statements between two people can relate to matters that
    have a strong public interest component.

[64]

Finally,
    since the promotion of the open exchange of information and opinions on matters
    of public interest is one of the overarching purposes animating s. 137.1, the
    characterization of the expression as a matter of public interest will usually
    be made by reference to the circumstances as they existed when the expression
    was made.

[65]

In
    summary, the concept of public interest as it is used in s. 137.1(3) is a
    broad one that does not take into account the merits or manner of the
    expression, nor the motive of the author. The determination of whether an
    expression relates to a matter of public interest must be made objectively,
    having regard to the context in which the expression was made and the entirety
    of the relevant communication. An expression may relate to more than one
    matter. If one of those matters is a matter of public interest, the defendant
    will have met its onus under s. 137.1(3).

[66]

When
    deciding whether an expression relates to a matter of public interest, the
    motion judge will apply the legal principles from
Grant v.
Torstar Corp.
to the relevant circumstances of the case as determined by the motion judge.
    The application of a legal standard to a set of facts raises a question of
    mixed fact and law. Absent the identification of an extricable error of law or
    a palpable and overriding factual error, an appellate court will defer to the
    motion judges assessment:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at paras. 33-35;
Ledcor Construction Ltd. v. Northbridge
    Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, per Wagner J., as
    he then was, at paras. 35-36, and per Cromwell J. (concurring), at paras.
    100-101;
Benhaim v. St-Germain
, 2016 SCC 48, [2016] 2 S.C.R. 352, at
    paras. 36-39.

(iv)

Section 137.1(4)(a): The Merits-Based Hurdle

[67]

If
    the defendant (moving party) clears s. 137.1(3), the inquiry moves on to s.
    137.1(4)(a). That section reads:

A judge shall not dismiss a proceeding under subsection (3) if
    the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial
    merit, and

(ii) the moving party has no valid
    defence in the proceedings.

[68]

The
    section puts the onus on the plaintiff (responding party). The word satisfies
    indicates that the balance of probabilities is the applicable standard of
    proof. The more difficult question is, what is it that the plaintiff must prove
    on the balance of probabilities?

[69]

Before
    examining the specific language of ss. 137.1(4)(a)(i) and (ii), I will address
    one argument made by some counsel in the six appeals. They submit that the
    absence of the modifier reasonable in front of the phrase grounds to
    believe in s. 137.1(4)(a) is significant and signals a lower standard than
    would be applicable if the section required reasonable grounds to believe. I
    reject this argument. Although the word reasonable does not appear in the
    text, I think it is implicit. The section requires a judicial assessment of the
    potential strength of the plaintiffs claim and the availability of any valid
    defence to the claim. Judicial decision-making is antithetical to decisions
    based on unreasonable or speculative grounds. A statute that requires a judge
    to have grounds to believe implicitly requires that those grounds be
    reasonable.

[70]

Broadly
    speaking, s. 137.1(4)(a) speaks to the potential merits of the lawsuit. Section
    137.1(4)(a)(i) refers explicitly to the merit of the proceeding, which I take
    to be the merits of the claim the plaintiff must prove to succeed in the
    litigation. Section 137.1(4)(a)(ii) addresses the absence of any valid defence,
    which I take to mean any affirmative defence found in the statement of defence,
    if one has been filed, or specifically advanced in the material filed on the s.
    137.1 motion by the defendant. I will explain this further below.

[71]

The
    distinction drawn in s. 137.1(4)(a) between the merits of the plaintiffs claim
    and the validity of any defence can be artificial in some circumstances. For
    example, in this case, 170 Ontario alleges a breach of contract and the dispute
    between the parties revolves around the proper interpretation of their Agreement.
    It is impossible to separate the merits of 170 Ontarios claim from the
    validity of any defence advanced by the defendants.

[72]

In
    defamation cases, however, the distinction drawn in s. 137.1(4)(a) makes sense.
    In those claims, there is a clear demarcation between the elements of the tort
    that the plaintiff must prove, and the various affirmative defences that the
    defence must prove if the plaintiff meets its initial onus: see
Grant v.
    Torstar Corp.
, at paras. 28-29;
Anti-SLAPP
    Advisory Panel
, at para. 69.

[73]

Turning
    to the specific language of ss. 137.1(4)(a)(i) and (ii), the interpretation
    must begin by recognizing the purpose of s. 137.1. It provides a judicial
    screening or triage device designed to eliminate certain claims at an early
    stage of the litigation process. Sections 137.1(4)(a) and (b) identify the
    criteria to be used in that screening process. Section 137.1 does not provide
    an alternate means by which the merits of a claim can be tried, and it is not a
    form of summary judgment intended to allow defendants to obtain a quick and
    favourable resolution of the merits of allegations involving expressions on
    matters of public interest. Instead, the provision aims to remove from the
    litigation stream at an early stage those cases, which under the criteria set
    out in the section, should not proceed to trial for a determination on the
    merits.

[74]

Judicial
    screening of claims at a pretrial stage occurs in both criminal and civil
    litigation. The purpose of the screening process varies, as do the screening criteria.
    Judges engaged in pretrial screening generally do not make, however, findings
    of fact in relation to the issues on which the litigation turns, credibility determinations,
    or any ultimate assessment of the merits of a claim or a defence.

[75]

Put
    in the context of s. 137.1(4)(a), the motion judge must decide whether a trier
    could reasonably conclude that the plaintiffs claim has substantial merit, and
    that the defendant has no valid defence. If the motion judge decides that both
    fall within the range of conclusions reasonably available on the motion record,
    the plaintiff has met the onus under s. 137.1(4)(a). If the plaintiff does not
    meet that onus, its claim will be dismissed.

[76]

The
    evaluation required by s. 137.1(4)(a) must be done having regard to both the
    context in which s. 137.1 motions are brought and the procedures controlling
    those motions. A s. 137.1 motion is intended to be brought at an early stage of
    the proceeding. The defendant is not even required to serve a statement of
    defence: s. 137.2(1). The motion must be heard within 60 days: s. 137.2(2). Cross-examination
    on affidavits or documentary evidence will usually be limited to a total of
    seven hours for each side: s. 137.2(4). The timing of the motion and the limits
    on cross-examination are not conducive to either party putting its best foot
    forward, as is expected in summary judgment proceedings.

[77]

The
    motion records compiled by the parties on s. 137.1 motions will be more
    abbreviated than would be expected at a later point in the proceedings. When
    assessing the merits for the purposes of s. 137.1(4)(a), the motion judge
    cannot approach the record as if it were a trial record or even a r. 20 summary
    judgment record:
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.
    Those records undoubtedly allow for a more fulsome and thorough scrutiny of the
    merits of the claim and the validity of any defence. The merits inquiry under
    s. 137.1(4)(a) will reflect the limits imposed by the nature of the record.

[78]

Motion
    judges must be careful that s. 137.1 motions do not slide into
de facto
summary judgment motions. If the motion record raises serious questions about
    the credibility of affiants and the inferences to be drawn from competing primary
    facts, the motion judge must avoid taking a deep dive into the ultimate merits
    of the claim under the guise of the much more limited merits analysis required by
    s. 137.1(4)(a). If it becomes apparent to the motion judge that a proper merits
    analysis would go beyond what could properly be undertaken within the confines
    of a s. 137.1 motion, I think the motion judge should advise the parties that a
    motion for summary judgment would provide a more suitable vehicle for an
    expeditious and early resolution of the claim.
[7]

[79]

The
    specific inquiries required of the motion judge under s. 137.1(4)(a) must be responsive
    to the language of the section. The motion judge must first satisfy himself or
    herself that there are reasonable grounds to believe that the claim has substantial
    merit. Again, I emphasize that it is not for the motion judge to decide
    whether he or she thinks that the claim has substantial merit. It is for the
    motion judge to determine whether it could reasonably be said, on an
    examination of the motion record, that the claim has substantial merit.

[80]

The
    use of the word substantial to modify merit in s. 137.1(4)(a)(i) signals
    that the plaintiff must do more than simply show that its claim has some chance
    of success. Attempts to give meaning to the phrase substantial merit by
    referencing synonyms to the word substantial adds little to the interpretative
    exercise. A claim has substantial merit for the purposes of s. 137.1 if, upon
    examination, the claim is shown to be legally tenable and supported by evidence,
    which could lead a reasonable trier to conclude that the claim has a real
    chance of success.

[81]

The
    word substantial, however, like the rest of the provision, takes its meaning
    from the nature of the s. 137.1 procedure and the procedural limitations
    imposed by s. 137.1. It is one thing to describe a claim as having substantial
    merit in the context of a motion brought in the early days of the litigation and
    on less than a full record. It is quite another to describe a fully litigated
    claim at the end of a trial, or even on a motion for summary judgment, as
    having substantial merit. Plaintiffs are not expected to present a fully
    developed case in response to a s. 137.1 motion. A determination of whether the
    claim shows substantial merit must take into account what can reasonably
    expected of the plaintiff at that point in the litigation.

[82]

While
    I have stressed that s. 137.1 motions are not a form of summary judgment, nor
    the proper forum in which to make a detailed assessment of the ultimate merits
    of the case, I do not mean to suggest that a motion judge must simply take at
    face value the allegations put forward by the parties on the motion. An
    evaluation of potential merit based on a grounds to believe standard
    contemplates a limited weighing of the evidence, and, in some cases,
    credibility evaluations. Bald allegations, unsubstantiated damage claims, or
    unparticularized defences are not the stuff from which grounds to believe are
    formulated. Similarly, if on a review of the entirety of motion material, the motion
    judge concludes that no reasonable trier could find a certain allegation or piece
    of evidence credible, the motion judge will discount that allegation or
    evidence in making his or her evaluation under s. 137.1(4)(a). Once again, the
    question is not whether the motion judge views the evidence as credible, but
    rather whether, on the entirety of the material, there are reasonable grounds
    to believe that a reasonable trier could accept the evidence.

[83]

I
    would add two further observations with respect to the no valid defence
    requirement in s. 137.1(4)(a)(ii). That provision requires the plaintiff to
    satisfy the motion judge that there are reasonable grounds to believe that the
    defendant has no valid defence to the plaintiffs claim. The section would be
    unworkable if the plaintiff were required to address all potential defences and
    demonstrate that none had any validity. I think the section contemplates an
    evidentiary burden on the defendant to advance any proposed valid defence in
    the pleadings, and/or in the material filed on the s. 137.1 motion. That
    material should be sufficiently detailed to allow the motion judge to clearly
    identify the legal and factual components of the defences advanced. Once the
    defendant has put a defence in play, the persuasive burden moves to the
    plaintiff to satisfy the motion judge that there are reasonable grounds to
    believe that none of the defences put in play are valid.

[84]

My
    second observation relates to the word valid. I would interpret valid as
    meaning successful. The onus rests on the plaintiff to convince the motion
    judge that, looking at the motion record through the reasonableness lens, a
    trier could conclude that none of the defences advanced would succeed. If that
    assessment is among those reasonably available on the record, the plaintiff has
    met its onus.

(v)

Section 137.1(4)(b): The Public Interest Hurdle

[85]

For
    ease of reference, I repeat the section:

A judge shall not dismiss a proceeding under subsection (3) if
    the responding party satisfies the judge that,

...

(b) the harm likely to be or have been suffered by the
    responding party as a result of the moving partys expression is sufficiently
    serious that the public interest in permitting the proceeding to continue
    outweighs the public interest in protecting that expression.

[86]

In
    some ways, s. 137.1(4)(b) is the heart of Ontarios Anti-SLAPP legislation. The
    section declares that some claims that target expression on matters of public
    interest are properly terminated on a s. 137.1 motion, even though they could
    succeed on their merits at trial. The public interest hurdle reflects the
    legislatures determination that the success of some claims that target
    expression on matters of public interest comes at too great a cost to the
    public interest in promoting and protecting freedom of expression. As explained
    by the Anti-SLAPP Advisory Panel, at para. 37 of its Report:

If an action against expression on a matter of public interest
    is based on a technically valid cause of action but seeks a remedy for only
    insignificant harm to reputation, business or personal interests, the actions
    negative impact on freedom of expression may be clearly disproportionate to any
    valid purpose the litigation might serve. The value of public participation
    would make any remedy granted to the plaintiff an unwarranted incursion into
    the domain of protected expression. In such circumstances, the action may also
    be properly regarded as seeking an inappropriate expenditure of the public
    resources of the court system. Where these considerations clearly apply, the
    court should have the power to dismiss the action on this basis.

[87]

Under
    s. 137.1(4)(b), the plaintiff (responding party) has the persuasive burden. The
    plaintiff must satisfy the motion judge that the harm caused to it by the defendants
    expression is sufficiently serious that the public interest engaged in
    allowing the plaintiff to proceed with the claim outweighs the public interest
    in protecting the defendants freedom of expression.

[88]

The
    harm suffered or likely to be suffered by the plaintiff as a consequence of the
    defendants expression will be measured primarily by the monetary damages
    suffered or likely to be suffered by the plaintiff as a consequence of the
    impugned expression. However, harm to the plaintiff can refer to non-monetary harm
    as well. The preservation of ones good reputation or ones personal privacy have
    inherent value beyond the monetary value of a claim. Both are tied to an
    individuals liberty and security interests and can, in the appropriate
    circumstances, be taken into account in assessing the harm caused to the
    plaintiff by the defendants expression:
Hill v. Church of Scientology of
    Toronto
, [1995] 2 S.C.R. 1130, at paras. 117-21;
Blencoe v. British
    Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307, at
    paras. 79-80.

[89]

In
    this case, 170 Ontario rests its case for the harm done to it by the
    defendants expression, in part, on the assertion that the defendants have interfered
    with 170 Ontarios reasonable expectation that its Agreement with the
    defendants had brought their litigation to an end. 170 Ontario argues that the
    promotion of finality in litigation is an important societal and individual
    goal and is properly reflected as part of the public interest. I accept that
    interference with a reasonable expectation of finality in litigation can amount
    to a harm suffered by the plaintiff, for the purposes of the balancing exercise
    required under s. 137.1(4)(b).

[90]

On
    the s. 137.1 motion, the plaintiff must provide a basis upon which the motion
    judge can make some assessment of the harm done or likely to be done to it by
    the impugned expression. This will almost inevitably include material providing
    some quantification of the monetary damages. The plaintiff is not, however,
    expected to present a fully-developed damages brief. Assuming the plaintiff has
    cleared the merits hurdle in s. 137.1(4)(a), a common sense reading of the
    claim, supported by sufficient evidence to draw a causal connection between the
    challenged expression and damages that are more than nominal will often
    suffice.

[91]

The
    plaintiff cannot, however, rely on bald assertions in the statement of claim
    relating to damages, or on unsourced, unexplained damage claims contained in the
    pleadings or affidavits filed on the s. 137.1 motion. The motion judge must be
    able to make an informed assessment, at least at a general or ballpark level,
    about the nature and quantum of the damages suffered or likely to be suffered by
    the plaintiff: see
Able Translations Lt
d. v. Express International Translations Inc.
,

2016 ONSC 6785, 410
    D.L.R. (4th) 380
, at paras. 85-95,
    affd 2018 ONCA 690
;
Thompson v. Cohodes
, 2017 ONSC 2590,
    at paras. 33-38.

[92]

Equally
    important to the quantification of damages, the plaintiff must provide material
    that can establish the causal link between the defendants expression and the damages
    claimed. Evidence of this connection will be particularly important when the
    motion material reveals sources apart from the defendants expression that
    could well have caused the plaintiffs damages.

[93]

Turning to the other side of the balancing exercise in s.
    137.1(4)(b), the public interest in protecting the defendants freedom of
    expression,
the motion judge must assess the
    public interest in protecting the actual expression that is the subject matter
    of the lawsuit. On a general level, the importance of freedom of expression,
    especially on matters of public interest, both to the individual and to the
    community, is well understood: see
Grant v. Torstar Corp.
, at paras. 32-57. However, if the defendant asserts
    a public interest in protecting its expression beyond the generally applicable
    public interest, the evidentiary burden lies on the defendant to establish the
    specific facts said to give added importance in the specific circumstances to
    the exercise of freedom of expression.

[94]

Unlike the public interest inquiry in s. 137.1(3),
    in which the quality of the expression or the motivation of the speaker are irrelevant
    (see above at para. 65), both play an important role in measuring the extent to
    which there is a public interest in protecting that expression. Not all
    expression on matters of public interest serves the values underlying freedom
    of expression in the same way or to the same degree. For example, a statement
    that contains deliberate falsehoods, gratuitous personal attacks, or vulgar and
    offensive language may still be an expression that relates to a matter of public
    interest. However, the public interest in protecting that speech will be less
    than would have been the case had the same message been delivered without the
    lies, vitriol, and obscenities:
Able Translations Ltd.
, at paras. 82-84 and 96-103.

[95]

In
    addition to the quality of the expression and the defendants motivation for making
    the expression, the consequences of the plaintiffs claim will figure into the
    weight to be given to the public interest in protecting that expression. Evidence
    of actual libel chill generated by the plaintiffs claim can be an important
    factor in the public interest evaluation required under s. 137.1(4)(b):
Able
    Translations Ltd.
, at para. 102
.

[96]

The
    public interest evaluations required under s. 137.1(4)(b) cannot be reduced to an
    arithmetic-like calculation. It would be misleading to pretend they can be. The
    assessments are qualitative and, to some extent, subjective. Because the
    balancing of the competing public interests will often be determinative of the
    outcome of the s. 137.1 motion, and because the analysis contains an element of
    subjectivity, it is crucial that motion judges provide full reasons for their s.
    137.1(4)(b) evaluations.

[97]

If
    a motion judge provides full reasons, an appeal court must defer to the motion
    judges balancing of the competing interests under s. 137.1(4)(b), absent an identifiable
    legal error, or a palpable and overriding factual error. Deference is important,
    as there is no reason to think that a simple recalibration of the competing
    interests by an appeal court will provide a more accurate assessment.

[98]

In
    making the determination required under s. 137.1(4)(b), the motion judge will bear
    in mind that the plaintiff has the onus under the legislation. In applying that
    burden, however, the motion judge must appreciate the very significant
    consequences to the plaintiff if the motion is allowed under s. 137.1(4)(b). The
    courtroom door will be closed on the plaintiff even though the claim may have
    ultimately succeeded on the merits. The Anti-SLAPP Advisory Panel envisioned
    this result only if the plaintiff had a technically valid cause of action and
    had suffered insignificant harm. The language of s. 137.1(4)(b) does not contain
    those limitations. However, I think the Panels words do describe the kind of
    case that should be removed from the litigation process through s. 137.1(4)(b).

[99]

I will conclude my analysis of ss. 137.1(4)(a) and (b) with
    two observations that will hopefully be of some practical use. First, the
    plaintiffs claim will be dismissed if the plaintiff cannot meet its persuasive
    burden under either ss. 137.1(4)(a) or (b). A motion judge is under no
    obligation to address both. In some cases, and I think this may have particular
    application to defamation claims, the public interest analysis under s. 137.1(4)(b)
    may well be more straightforward than the merits-based analysis required under s.
    137.1(4)(a). For example, if the defendant has demonstrated that the plaintiff
    has not suffered any significant harm and has brought the lawsuit to silence or
    punish the defendant, the public interest analysis should be straightforward
    and lead to a dismissal of the action without the need to engage in the more
    difficult and time-consuming merits-based analysis
.

[100]

Second, cases like the
    present, in which the claim turns on the interpretation of the language in a
    contract, do not fit comfortably within the s. 137.1 analysis. The balancing of
    the public interest required under s. 137.1(4)(b) depends largely on how one
    assesses the merits of the allegation that the defendant breached the contract.
    There would be little public interest in protecting a defendants right to make
    certain statements if the defendant had made a fully informed decision to
    bargain away his or her right to make those statements in exchange for
    something of value to the defendant. Similarly, an assessment of the harm
    suffered by the plaintiff by dismissing the claim would depend entirely on
    whether the plaintiffs interpretation of the contract was correct.

[101]

Cases that turn on the interpretation of a contract
    are routinely addressed expeditiously and efficiently by way of summary
    judgment motions under r. 20. With the benefit of hindsight, I would suggest
    that this is a case that could have been more efficiently and expeditiously
    resolved by way of a timely summary judgment motion.

E.

the merits of this
    appeal

[102]

170 Ontario
    submits that s. 137.1 is intended to apply only to true SLAPPs, that is,
    lawsuits with at best technical merit brought in order to silence the
    defendant. 170 Ontario submits that this lawsuit was brought to recover damages
    for Pointess breach of contract. 170 Ontario notes that Pointes has fully and
    successfully participated in the various proceedings related to 170 Ontarios
    proposed land development. Pointess participation preceded this lawsuit. 170
    Ontario asks: how could bringing this lawsuit, after Pointes had successfully
    opposed the development, silence or deter Pointes in its opposition to the
    development?

[103]

It may well be
    that this litigation does not have the clear markings of a classic SLAPP. However,
    nothing in the language of s. 137.1 limits the provision to claims, normally
    defamation actions, that fit squarely within the traditional notion of a SLAPP.
    170 Ontarios claim against Pointes clearly targets expression as defined in s.
    137.1(2).

[104]

The motion judge
    concluded that Mr. Gagnons testimony, directed at the potential environmental
    impact of the proposed development, constituted expression relating to a matter
    of public interest as required under s. 137.1(3): see paras. 29-40 of his
    reasons. He went on, however, to hold that 170 Ontario had cleared both the merits-based
    hurdle and the public interest hurdle in ss. 137.1(4)(a) and (b) and, consequently,
    that the matter should proceed.

[105]

On appeal, 170
    Ontario does not challenge the motion judges finding that Mr. Gagnons
    testimony constituted expression relating to public interest under s. 137.1(3).
    However, Pointes contends that the motion judge made significant errors in his
    interpretation of both ss. 137.1(4)(a) and (b). It argues that, on a proper
    interpretation of those provisions, 170 Ontario failed to meet its onus under both
    subsections.

(i)

The Motion Judges
    Interpretation of Section 137.1(4)(a)

[106]

The motion
    judges interpretation of the provisions found in s. 137.1 raises questions of
    law that are reviewable on a correctness standard:
Teal Cedar Products Ltd.
    v. British Columbia
, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 78.

[107]

In
    holding that 170 Ontario had satisfied him that its claim had substantial
    merit, the motion judge said, at para. 47:

The claim of the plaintiff
    involves the sanctity of agreements made between parties. This is not a claim
    that is frivolous or fleeting. It is a claim of importance involving a serious
    matter to be considered by the court. In other words, it is a claim of
    substance. In my view, the claim advanced by the plaintiff has substantial
    merit and is a claim that should be considered by the court.

[108]

Later, at para.
    50, the motion judge added a further observation:

In my view, the threshold for the responding party [170 Ontario]
    to meet in Section 137.1(4)(a)(i) and (ii) of the
Courts of Justice Act
must be a low one given the significant remedies in Section 137.1 and the
    protection for litigants to bring legitimate claims before the court.

[109]

The motion judge
    did not examine the record to determine if there were reasonable grounds to
    believe that 170 Ontarios claim had substantial merit. In fact, he never
    considered whether, in all of the circumstances, and having regard to the
    wording of the Agreement, the Agreement could plausibly be read as precluding
    Mr. Gagnons testimony at the OMB. Without some consideration of the relevant
    principles of contractual interpretation as applied in the circumstances, the
    motion judge could not properly determine whether there were reasonable grounds
    to believe that 170 Ontarios claim had substantial merit: see
Sattva
    Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, [2014] 2 S.C.R. 633, at para.
    50.

[110]

The motion
    judges failure to examine the potential merits of 170 Ontarios claim is
    explained by his interpretation of the phrase substantial merit in s.
    137.1(4)(a)(i) as referring to the seriousness of the subject matter of the
    claim and not the potential merits of the claim. With respect, the subject
    matter of a claim does not determine whether there are grounds to believe that
    the claim has substantial merit. Claims involving very serious matters can be
    self-evidently devoid of any merit.

[111]

To the extent
    that the motion judges reasons refer to the merits of 170 Ontarios claim, as
    opposed to the subject matter of the claim, the motion judge required the claim
    to pass a frivolous or fleeting standard. Neither word appears in s. 137.1(4)(a)(i).
    For the reasons set out above at para. 80, the substantial merit requirement
    sets a higher bar.

[112]

The motion judge
    should have considered whether, on a proper application of the principles of
    contractual interpretation, a trier could reasonably conclude that 170
    Ontarios interpretation of the Agreement, as applying to Mr. Gagnons testimony
    before the OMB, had substantial merit in the sense that it had a real chance of
    being accepted. If there were grounds to believe that 170 Ontarios interpretation
    had substantial merit, it followed that there were also reasonable grounds to
    believe that Pointess conflicting interpretation of the contract did not raise
    a valid defence.

[113]

In para. 46 of
    the Statement of Claim, 170 Ontario asserts:

Implicit in the [Agreement] was the commitment by the Defendants
    that the wetland issue was settled.

A similar assertion is found in paras. 49 and 53 of
    the Statement of Claim.

[114]

170 Ontarios
    reliance on an implicit term in the Agreement to preclude the defendants from
    raising the wetlands issue in testimony before the OMB is not, in my view, an
    interpretation of the Agreement that flows reasonably from the language or the
    factual context of the Agreement. When the parties entered into the Agreement, Pointes
    had standing at the OMB and 170 Ontario knew that the defendants would oppose
    the development at the OMB. Nothing in the Agreement touched on the defendants
    participation in the OMB proceedings. Specifically, nothing in the Agreement suggested
    that Pointes could not oppose 170 Ontarios development at the OMB. 170 Ontario
    must be taken to have known full well the range of factual issues that could be
    raised on its appeal before the OMB. Those issues included some that had been
    considered, albeit in a different regulatory context, by the SSMRCA.

[115]

The very precise
    language used in the Agreement was the product of considerable negotiation
    between counsel for the parties. In light of that language, and particularly the
    language of para. 6 (see
above at
para. 21), the surrounding factual context, and the ongoing adversarial
    relationship between 170 Ontario and Pointes, I do not think the Agreement could
    reasonably be read as imposing any obligations on the defendants beyond those expressly
    set out in the language used. The words of the Agreement ultimately chosen by
    the parties speak exclusively to challenges by Pointes to the legitimacy of the
    SSMRCA resolutions. The words do not focus on the underlying factual issues
    that arose in the SSMRCA proceedings and would arise again in the proceedings before
    the OMB.

[116]

I would hold
    that there is no reasonable prospect that 170 Ontario could convince a reasonable
    trier that there was substantial merit to its claim that the Agreement
    foreclosed Mr. Gagnons testimony before the OMB.

[117]

My conclusion
    that 170 Ontario did not meet its onus under s. 137.1(4)(a)(i) is sufficient to
    determine the appeal against 170 Ontario. Pointes was entitled to an order
    dismissing the action. For completeness, I will briefly address the second
    component of the merits hurdle.

[118]

The motion judges
    interpretation of s. 137.1(4)(a)(ii), which refers to the existence of a valid
    defence, is set out in para. 50 of his reasons:

The defendant has not pleaded its defence in this proceeding. Without
    a pleading there is no way for the court to be satisfied that it has a valid
    defence in the proceeding and I am not satisfied that the defendant has a valid
    defence based on the material before me on the motion.

[119]

The motion judge
    wrongly put the onus on Pointes to satisfy him that it had a valid defence. Section
    137.1(4)(a)(ii) put the persuasive onus on 170 Ontario to satisfy him that
    there were grounds to believe that Pointes had no valid defence (see above at
    para. 84). Nor is the absence of a statement of defence determinative: see s.
    137.2(1). In any event, the conclusion that 170 Ontario could not show that
    there were grounds to reasonably believe that its interpretation of the
    Agreement had substantial merit leads inevitably to the conclusion that 170
    Ontario also could not show that there were reasonable grounds to believe that the
    defendants interpretation of the contract had no validity.

(ii)

The Motion Judges Interpretation of Section 137.1(4)(b)

[120]

In weighing the
    harm suffered by 170 Ontario as a result of the defendants expression against
    the public interest in protecting the defendants expression, the motion judge
    focused almost exclusively on the harm caused to 170 Ontario by the loss of its
    reasonable expectation that its litigation with the defendants over the proposed
    development was finished. While finality in litigation is an important public value,
    I repeat that 170 Ontarios reasonable expectation of finality is dependent
    entirely on the correctness of its interpretation of the Agreement. As
    explained above, I do not think that the Agreement could reasonably be read as
    foreclosing Mr. Gagnons testimony before the OMB.

[121]

Even accepting
    that interference with 170 Ontarios reasonable expectation of finality in the
    litigation could be viewed as causing some harm to 170 Ontario for the purposes
    of s. 137.1(4)(b), there is no evidence of any other harm. In particular, there
    is no evidence of any damages suffered or likely to be suffered by 170 Ontario
    as a result of the alleged breach of the Agreement.

[122]

The
    motion material provides little, if any, insight into either the nature of 170
    Ontarios damage claim, or the quantum of that claim. Having reviewed the material
    several times, I remain uncertain as to 170 Ontarios damages theory. I do not
    understand 170 Ontario to argue that it is entitled to damages from the
    defendants because the failure to obtain the OMBs approval for the development
    can be laid at the defendants feet.

[123]

The motion judge
    could not make any informed assessment of the monetary damages, if any, suffered
    or likely to be suffered by 170 Ontario as a result of the defendants alleged breach
    of contract. Without that assessment, 170 Ontarios claim of harm caused to it by
    Mr. Gagnons testimony was weak indeed.

F.

conclusion

[124]

I would allow
    the appeal, set aside the order below, and make an order dismissing the action.

[125]

Unless the
    parties can agree on costs, they should exchange and file their submissions
    within 30 days of the release of these reasons. The submissions should not
    exceed ten pages. The submissions should address:

·

the scale and quantum of costs on the appeal;

·

the scale of costs in the Superior Court;

·

whether this court or the Superior Court should fix the quantum
    of costs in the Superior Court;

·

the quantum of costs in the Superior Court.

Released: DD  AUG 30 2018

Doherty J.A.

I agree D.M. Brown J.A.

I agree Grant Huscroft
    J.A.

APPENDIX A

Prevention of Proceedings that Limit Freedom of Expression
    on Matters of Public Interest (Gag Proceedings)

Dismissal of proceeding
    that limits debate

Purposes

137.1
(1)
The purposes of this section and sections 137.2 to 137.5 are,

(a)
    to encourage individuals to express themselves on matters of public interest;

(b)
    to promote broad participation in debates on matters of public interest;

(c)
    to discourage the use of litigation as a means of unduly limiting expression on
    matters of public interest; and

(d)
    to reduce the risk that participation by the public in debates on matters of
    public interest will be hampered by fear of legal action.

Definition,
    expression

(2)
In this section,

expression
    means any communication, regardless of whether it is made verbally or
    non-verbally, whether it is made publicly or privately, and whether or not it
    is directed at a person or entity.

Order to dismiss

(3)
On motion by a person against whom a proceeding is
    brought, a judge shall, subject to subsection (4), dismiss the proceeding
    against the person if the person satisfies the judge that the proceeding arises
    from an expression made by the person that relates to a matter of public interest.

No dismissal

(4)
A judge shall not dismiss a proceeding under
    subsection (3) if the responding party satisfies the judge that,

(a)
    there are grounds to believe that,

(i)
    the proceeding has substantial merit, and

(ii)
    the moving party has no valid defence in the proceeding; and

(b)
    the harm likely to be or have been suffered by the responding party as a result
    of the moving partys expression is sufficiently serious that the public
    interest in permitting the proceeding to continue outweighs the public interest
    in protecting that expression.

No further steps in
    proceeding

(5)
Once a motion under this section is made, no
    further steps may be taken in the proceeding by any party until the motion,
    including any appeal of the motion, has been finally disposed of.

No amendment to
    pleadings

(6)
Unless a judge orders otherwise, the responding
    party shall not be permitted to amend his or her pleadings in the proceeding,

(a)
    in order to prevent or avoid an order under this section dismissing the
    proceeding; or

(b)
    if the proceeding is dismissed under this section, in order to continue the
    proceeding.

Costs on dismissal

(7)
If a judge dismisses a proceeding under this
    section, the moving party is entitled to costs on the motion and in the
    proceeding on a full indemnity basis, unless the judge determines that such an
    award is not appropriate in the circumstances.

Costs if motion to
    dismiss denied

(8)
If a judge does not dismiss a proceeding under
    this section, the responding party is not entitled to costs on the motion,
    unless the judge determines that such an award is appropriate in the
    circumstances.

Damages

(9)
If, in dismissing a proceeding under this section,
    the judge finds that the responding party brought the proceeding in bad faith
    or for an improper purpose, the judge may award the moving party such damages
    as the judge considers appropriate.

Procedural matters

Commencement

137.2
(1)
A
    motion to dismiss a proceeding under section 137.1 shall be made in accordance
    with the rules of court, subject to the rules set out in this section, and may
    be made at any time after the proceeding has commenced.

Motion to be heard
    within 60 days

(2)
A motion under section 137.1 shall be heard no
    later than 60 days after notice of the motion is filed with the court.

Hearing date to be
    obtained in advance

(3)
The moving party shall obtain the hearing date for
    the motion from the court before notice of the motion is served.

Limit on
    cross-examinations

(4)
Subject to subsection (5), cross-examination on
    any documentary evidence filed by the parties shall not exceed a total of seven
    hours for all plaintiffs in the proceeding and seven hours for all defendants.

Same, extension of time

(5)
A judge may extend the time permitted for
    cross-examination on documentary evidence if it is necessary to do so in the
    interests of justice.

Appeal to be heard as
    soon as practicable

137.3
An appeal of an order under section 137.1 shall be
    heard as soon as practicable after the appellant perfects the appeal.

Stay of related
    tribunal proceeding

137.4
(1)
If
    the responding party has begun a proceeding before a tribunal, within the
    meaning of the
Statutory Powers Procedure Act
, and the moving party
    believes that the proceeding relates to the same matter of public interest that
    the moving party alleges is the basis of the proceeding that is the subject of
    his or her motion under section 137.1, the moving party may file with the
    tribunal a copy of the notice of the motion that was filed with the court and,
    on its filing, the tribunal proceeding is deemed to have been stayed by the
    tribunal.

Notice

(2)
The tribunal shall give to each party to a
    tribunal proceeding stayed under subsection (1),

(a)
    notice of the stay; and

(b)
    a copy of the notice of motion that was filed with the tribunal.

Duration

(3)
A stay of a tribunal proceeding under subsection
    (1) remains in effect until the motion, including any appeal of the motion, has
    been finally disposed of, subject to subsection (4).

Stay may be lifted

(4)
A judge may, on motion, order that the stay is
    lifted at an earlier time if, in his or her opinion,

(a)
    the stay is causing or would likely cause undue hardship to a party to the
    tribunal proceeding; or

(b)
    the proceeding that is the subject of the motion under section 137.1 and the
    tribunal proceeding that was stayed under subsection (1) are not sufficiently
    related to warrant the stay.

Same

(5)
A motion under subsection (4) shall be brought
    before a judge of the Superior Court of Justice or, if the decision made on the
    motion under section 137.1 is under appeal, a judge of the Court of Appeal
.

Statutory Powers
    Procedure Act

(6)
This section applies despite anything to the contrary
    in the
Statutory Powers Procedure Act
.

Application

137.5
Sections 137.1 to 137.4 apply in respect of
    proceedings commenced on or after the day the
Protection of Public
    Participation Act, 2015
received first reading.

[1]

In addition to this appeal, those appeals are
Fortress
    Real Developments Inc. v. Rabidoux
, 2018 ONCA 686;
Platnick
    v. Bent
, 2018 ONCA 687;
Veneruzzo v. Storey
, 2018 ONCA 688;
Armstrong v. Corus Entertainment Inc.
,
    2018 ONCA 689
;
Able Translations Ltd. v. Express
    International Translations Inc.
, 2018 ONCA 690.

[2]

The Divisional Court refused leave to appeal from the OMB
    decision:
Avery v. Pointes Protection Association
, 2016 ONSC 6463, 60 M.P.L.R. (5th) 70. The leave application was
    filed in March 2015, but decided in November 2016, after this action was
    commenced and the s. 137.1 ruling made.

[3]

Section 4 of the Act made a modest change to the qualified
    privilege defence found in s. 25 of the
Libel and Slander Act
, R.S.O. 1990, c. L.10.

[4]

See
Protection of Public Participation Act
, S.B.C. 2001, c. 19, s. 5(1), repealed by the
Miscellaneous
    Statutes Amendment Act
, 2001
, S.B.C. 2001, c. 32, s. 28. See also Uniform Law Conference of
    Canada,
Uniform Prevention of Abuse of Process Act, 2010
. The Attorney General of British Columbia re-introduced Anti-SLAPP
    Legislation in May of 2018. The proposed legislation appears to be more in line
    with Ontarios approach: see Bill 32,
Protection of Public Participation Act
,
    3d Sess., 41st Parl., British Columbia, 2018 (first reading 15 May 2018).

[5]
As broad as the definition appears to be, it
presumably does
    not capture expressive conduct that is beyond the pale of s. 2(b) of the
Canadian
    Charter of Rights and Freedoms
, e.g. hate speech as
    defined in s. 319(2) of the
Criminal Code
, R.S.C.
    1985, c. C-46, acts of violence, or threats of violence against others: see
R.
    v. Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 555, at paras.
    67-70.

[6]

The importance of context in the s. 137.1(3) analysis is
    evident is
Rizvee v. Newman
, 2017 ONSC 4024. In
    that case, the motion judge found that the same comments made by the defendant
    in two very different contexts led to different conclusions under s. 137.1(3). In
    one context, the comments did relate to matters of public interest, and in the
    other the same comments did not.

[7]
In its 2010 Report, the Advisory Panel did not make reference to the enhanced
    summary judgment rule as offering an effective tool to deal with abusive suits
    relating to expressions on matters of public interest. Perhaps, the Panel did
    not foresee the enhanced role played by r. 20 motions after the Supreme Court
    of Canadas decision in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1
    S.C.R. 87.