COURT OF APPEAL FOR ONTARIO

CITATION: Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171

DATE: 20250306

DOCKET: COA-24-CV-0130

Lauwers, Brown and Coroza JJ.A.

BETWEEN

Benchwood Builders, Inc. and Michael Slaven

Plaintiffs (Appellants)

and

Cynthia Prescott and David Green

Defendants (Respondents)

Adrienne Zaya and Sara J. Erskine, for the appellants

Sheldon Inkol, for the respondents

Heard: October 29, 2024

On appeal from the order of Justice Linda M. Walters of the Superior Court of Justice, dated January 3, 2024[^1] and from the costs order dated April 12, 2024.

Lauwers J.A.:

A. Overview

[1] Cynthia Prescott and David Green contracted with Benchwood Builders, Inc., owned by Michael Slaven and his spouse, to carry out some renovations on their home in Niagara-on-the-Lake.[^2] The relationship ended badly with Benchwood starting a lien action to recover for unpaid bills. Benchwood and Mr. Slaven started this defamation action for derogatory comments that Ms. Prescott and Mr. Green made about them on social media. In response, Ms. Prescott and Mr. Green brought a motion for an order dismissing the action as a Strategic Lawsuit Against Public Participation (“SLAPP”) under s. 137.1 of the Courts of Justice Act.[^3]

[2] The motion judge granted the anti-SLAPP motion and dismissed Benchwood’s defamation action. For the reasons that follow, I would allow the appeal.

(1) The Factual Context

[3] About a month after they parted company, Ms. Prescott and Mr. Green saw that Benchwood had posted photographs of their home online in order to attract new customers. This angered them and they posted statements and complaints online, some of which Benchwood and Mr. Slaven assert to be defamatory.

[4] The alleged defamatory statements posted by Ms. Prescott are these: Benchwood and Mr. Slaven “misrepresent themselves to the consumer”; that her experience with them as builders was “horrific” and a “nightmare”; “[t]hey are misrepresenting our project as a ‘success story’ which it definitely IS NOT”; “[t]hese are just a few pix of the utter mess they left behind despite our having paid them an extraordinary amount & we’re having to clean up after them at great cost.” Ms. Prescott also posted that Mr. Slaven and his subcontractors were “in on this dishonest operation together”, “operate in a dishonest manner,” and did a “shotty job”.

[5] In addition to Ms. Prescott’s posts, Mr. Green responded to several comments on the Benchwood Facebook page. In response to one user, he wrote: “let me guess.. he had to charge you extra for a few things? project was a nightmare? glad it’s done? aware of the lawsuits?” Mr. Green also posted that Benchwood was “trespassing”, referred to Mr. Slaven as “a miserable con artist” and a “dirtbag”, implied that Benchwood had a habit of walking off the job, and accused Mr. Slaven of threatening women and making false assault charges against women. These comments were posted to social media by the Homeowners between November 2020 and January 2021.

[6] Ms. Prescott and Mr. Green admit making the statements but say that most of the postings were removed within minutes, except for one that stayed up for several hours. There is some dispute about how long the postings were up on social media. Their defence is that “all of the statements …are true, fair comments, justified, honest opinions, subject to qualified privilege, are responsible communication on matters of public interest.” The motion judge summarized the defence, at para. 39: “the statements in question are either true, fair comment, protected by qualified privilege, statute barred, or not capable of harming the plaintiffs’ reputation.”

(2) The Motion Judge’s Decision

[7] The motion judge dismissed Benchwood’s defamation action under s. 137.1, based on three findings.

[8] First, the Homeowners’ comments related to a matter of public interest because Benchwood offers services to the public and customer reviews online are “widely utilized” – s. 137.1(3).

[9] Second, while there were grounds to believe that Benchwood’s defamation action had substantial merit – s. 137.1(4)(a)(i) – there were triable issues with respect to the Homeowners’ defence that the statements they made were true; because the motion judge was unable to find that the Homeowners’ defence of justification had no real prospect of success, Benchwood’s claim had to be dismissed – s. 137.1(4)(a)(ii).

[10] Third, she considered whether the harm to Benchwood was serious enough as to outweigh the public interest in protecting the Homeowners’ expression – s. 137.1(4)(b). She found that Benchwood had failed to establish that any harm suffered as a result of the Homeowners’ defamatory statements was serious, because there were “other factors that may have had an effect on [Benchwood’s] reputation.”

B. The Issues

[11] Benchwood raises the following issues:

1. Did the motion judge err in finding that the Homeowners’ statements relate to a matter of public interest under s. 137.1(3)?

2. Did she err in her approach to the ground of “no valid defence” under s. 137.1(4)(a)(ii)?

3. Did she err in her approach to the weighing exercise relating to harm and the public interest under s. 137.1(4)(b)?

4. Did she err in her costs award?

C. Analysis

[12] In my view, the motion judge made three errors. First, the dispute is not a matter of public interest under s. 137.1. Second, the motion judge did not undertake the task of assessing the validity of the Homeowners’ defence in a manner consistent with this court’s guidance. Third, she carried out the task of weighing harm against the public interest only perfunctorily.

[13] In this part of the reasons, I interpret s. 137.1 in light of its text, context and purpose, and its scheme, and then turn to the issues.

The Interpretation of Section 137.1 of the Courts of Justice Act

[14] Section 137.1 of the Courts of Justice Act is poorly drafted and confusing. It has led to much litigation, which is ironic since its express purposes are to discourage the use of litigation as a means of unduly limiting expression on matters of public interest and to promote public participation in debates on such matters: ss. 137.1(1) (b) and (c). The Byzantine operation of the section has been criticized.[^4] In short, s. 137.1 is in desperate need of a makeover, if not repeal and replacement.

Text, Context, and Purpose

[15] The governing principle of statutory interpretation is this: “Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose”.[^5] The court must consider the text of the legislation, the context within which it operates along with the specific case context, and the particular purpose for the provisions at issue.

[16] The text of s. 137.1 on “public interest” does not define the term but leaves it to the courts to develop in light of the section’s purpose.

[17] The purpose of s. 137.1 can be gleaned from its express terms, especially s. 137.1(1). Our court has adopted this general description of the purpose of the legislation: “the anti- SLAPP legislation was designed to stop a plaintiff from silencing a defendant by pursuing meritless litigation that served to intimidate and undermine public expression”.[^6]

[18] The general context is plain enough: s. 137.1 presupposes active litigation of possibly questionable value. The specific context in this appeal is a commercial dispute in which one party might have defamed the other, which requires me to comment briefly on the values underlying defamation as a cause of action, on the one hand, and the value of free expression, on the other hand.

[19] Peter Downard summarizes the purpose of the law of defamation in two dense and well footnoted paragraphs in Halsbury’s Laws of Canada – “Defamation” (2023 Reissue):

Protection of reputation. The Canadian law of defamation compensates and vindicates a person whose reputation in the community has been harmed by a false statement. Canadian law recognizes that reputation is an integral and fundamentally important aspect of every individual. Reputation fosters self-image and self-worth. Reputation is closely linked to the ability of the individual to participate in Canadian society. The Supreme Court of Canada has thus recognized that the protection of reputation has “quasi-constitutional status” in Canadian law.

Emotional security and dignity. The law of defamation also exists to provide a remedy for the harm that the defendant’s wrong has caused to the plaintiff’s feelings. Respect for the inherent dignity of a person is essential in a free and democratic society. (Footnotes omitted.)[^7]

[20] People are entitled to defend their reputations, even in the rough and tumble of social media.

[21] Free speech is constitutionally protected from state intrusion by s. 2(b) of the Canadian Charter of Rights and Freedoms. The purpose of protecting freedom of expression is to “ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream.”[^8]

[22] Free expression is not unlimited; one constraint is defamation law. “The publication of defamatory comments constitutes an invasion of the individual’s personal privacy and is an affront to that person’s dignity.”[^9] Protecting reputation – as an aspect of dignity – must be “carefully balanced against the equally important right of freedom of expression.”[^10] The Supreme Court found in WIC Radio (2008) that “the worth and dignity of each individual, including reputation, is an important value underlying the Charter and is to be weighed in the balance with freedom of expression.”[^11] The court affirmed the tension between reputation and free speech: “the Charter is about ‘expressive activity’ but it also protects the dignity and worth of individuals, whose reputation may be their most valued asset.”[^12]

[23] This tension exists in the context of anti-SLAPP motions and is recognized especially in s. 137.1(4)(b).

The Scheme of s. 137.1

[24] The language of s. 137.1 is obtuse and difficult to follow. To help work through how the provisions of s. 137.1 apply to this case, I substitute the names of the parties and add pertinent details. Subsection (3) requires the motion judge to dismiss the defamation action under certain conditions; It provides:

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

[25] At the threshold, the Homeowners must establish that: (i) they expressed themselves; (ii) their expression relates to a matter of public interest; and (iii) the Benchwood defamation action which the Homeowners seek to have dismissed arises from their expression.[^13]

[26] One sticking point in this action, to which I return below, is whether the Homeowners’ “expression,” as defined in s. 137.1, engages a matter of “public interest” as that undefined term is understood in s. 137.1.

[27] If the threshold is passed, then subsection (4) springs into convoluted action, but the onus shifts to the party allegedly defamed, Benchwood. Subsection (4) provides:

(4) A judge shall not dismiss [Benchwood’s defamation] proceeding under subsection (3) if [Benchwood] satisfies the judge that,

(a) there are grounds to believe that,

(i) the [defamation] proceeding has substantial merit, and

(ii) the moving party [the Homeowners] ha[ve] no valid defence in the [defamation] proceeding; and

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

[28] As I will explain, in my view s.137.1 (4)(a)(ii) – “no valid defence” – has been given too much weight in the operation of the section. It is better seen as no more than an obvious off-ramp for those cases in which there are clearly grounds to believe that a valid defence to the entire defamation action exists; in such cases, the defamed party has failed to meet the onus under s. 137.1 and the underlying defamation proceeding should be dismissed.[^14] Such open and shut cases will be rare.

[29] But what happens when the judge is only satisfied that the defamer might have a valid defence? Some cases have placed too high a burden on the defamed plaintiff. In my view, it is an error to conclude that because the responding party – the defamed party in the underlying proceeding – is not able to utterly invalidate the defence, the motion to dismiss must be granted.[^15]

[30] To the contrary, when the judge hearing the anti-SLAPP motion is satisfied that the defence has some merit but is not satisfied that it will prevail, then the analysis must proceed to the weighing exercise in s. 137.1(4)(b). I note that (a) is followed by “;and (b)” , which signals that the legislature intended the analysis to go from (a) to (b).

[31] Under s 137.1(4)(b), the motion judge ultimately decides whether to permit the defamation action to continue. To permit the action to proceed, the judge must be satisfied that the harm suffered by the responding party who claims to have been defamed as a result of the moving party’s purportedly defamatory expression is sufficiently serious that the public interest in permitting the defamation proceeding to continue outweighs the public interest in protecting the purportedly defamatory expression.

[32] With this statutory scheme in mind, I turn to the particular issues raised in this appeal.

(1) The motion judge erred in finding that the Homeowners’ statements relate to a matter of public interest under s. 137.1(3)

[33] The motion judge found that the “expressions in question relate to a matter of public interest”. She cited a colleague’s statement that “[o]nline reviews serve an important function by offering the public information about consumer experiences dealing with professionals or businesses” and are matters of public interest.[^16] This seems to be a consensus view of Superior Court judges,[^17] but it is not the view of this court[^18] whose legal rulings prevail. The motion judge made an error of law in failing to follow this court’s rulings on the interpretation of the “public interest” in s. 137.1.

[34] Online reviews of products and services are part of the pervasive social media milieux in which contemporary society operates. However, “[s]ocial media is not a defamation-free zone” nor do participants “consent to the risk of being defamed”.[^19]With these words, Huscroft J.A. qualified the lower court judge’s observation that social media is often a nasty place; Morgan J. described one manifestation, Twitter, as “a rhetorically harsh speech environment whose very pervasive harshness reduces the seriousness with which it is taken”.[^20]

[35] Section 137.1 encourages expression on matters of public interest, such as participation in debates on matters of public interest, which are protected by s. 137.1(3). But not every public expression “relates to a matter of public interest,” as Huscroft J.A. pointed out in Sokoloff, at para. 19:

[I]t is not enough if expression simply makes reference to something that is of public interest, or to something that arouses the public’s curiosity. Moreover, the court’s instruction of interpretive generosity cannot be read in isolation. The scope for legitimate interpretation of vaguely worded concepts such as “public interest” must be informed by the purpose of the legislation: to safeguard the fundamental value that is public participation in democracy. The burden is on the moving party to establish that its expression relates to a matter of public interest, albeit that this burden is not an onerous one.

[36] The Supreme Court said in Grant v. Torstar Corp. that:

To be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown, vol. 2, at pp. 15-137 and 15-138. The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”: Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285, at para. 63, per Koenigsberg J. Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.[^21]

[37] The court applied Grant’s approach to s. 137.1 in 1704604 Ontario Ltd. v. Pointes Protection Association.[^22]

[38] In Pointes, Côté J. said, at para. 30:

Ultimately, the inquiry is a contextual one that is fundamentally asking what the expression is really about. The animating purpose of s. 137.1 should not be forgotten: s. 137.1 was enacted to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy.

[39] Pointes itself concerned an individual’s testimony in administrative proceedings before a land use tribunal, which was found to be protected as “an expression on a matter of public interest”.[^23]

[40] This court has considered the “public interest” as related to online reviews of goods or services on several occasions. Online reviews are not automatically matters of public interest. As Huscroft J.A. noted in Sokoloff, at para. 32:

The task of the motion judge under s. 137.1(3) is to determine “what the expression is really about”, bearing in mind the purpose of s. 137.1: protecting expression relating to matters of public interest and safeguarding the fundamental value of public participation in democracy: Pointes (SCC), at para. 30. Again, only expression relating to a matter of public interest attracts the statute’s protection; “expression that simply makes reference to something of public interest” does not: Pointes (SCC), at para. 29.

[41] This court noted in Grist, at para. 19, that “the resolution of purely private disputes between more or less equals – disputes that have no immediate bearing on the rights or obligations of others – can seldom be a matter of public interest.”[^24] This court’s decisions that have found an expression to relate to a purely private dispute include the following: Echelon (an employee posted an online review of internal workplace conditions, pay, and benefits); Sokoloff (the president of a company stood outside a law firm with signs claiming that the firm had failed to pay his company for fees incurred by the firm’s clients); Hamilton (a client posted an “unflattering opinion” about her lawyer online); and Dent-X Canada (a client posted a review of Dent-X on Facebook that included allegations of fraud).[^25] The result in these cases is that the anti-SLAPP motion was not granted and the defamation action was left to continue.

[42] There are some cases involving online reviews or activities that rise above the purely private: Canadian Union of Postal Workers (an expression that dealt with “the use of union funds to take positions on the conflict in the Middle East or to help an organization that allegedly supports attacks on Israel”); Thatcher-Craig (expressions related to municipal land use matters); Levant (expressions related to climate change); Hamer (expressions about animal welfare); and VAC Developments Limited (expressions about anti-Black racism and workplace harassment).[^26] Common to each of these cases is an expression that engages some broader societal concern.

[43] Assessing this case against the spectrum of cases reflected in the preceding two paragraphs leads me to conclude that the online reviews posted by the Homeowners reflect no more than an especially bitter private dispute. Consequently, although some members of the public might find it interesting, it is not a matter of public interest under s 137.1. The expression at issue does not engage some broader societal concern, such as those described above, nor, in my view, does it fall within the types of expression that were intended to be captured by the provision.

(2) The motion judge erred in her approach to the ground of “no valid defence” under s. 137.1(4)(a)(ii)

[44] Section 137.1(4)(a)(ii) has proved to be the most problematic of the section’s provisions. I begin with the text, which provides:

(4) A judge shall not dismiss [Benchwood’s defamation] proceeding under subsection (3) if the responding party [Benchwood] satisfies the judge that,

(a) there are grounds to believe that,

(ii) the moving party [the Homeowners] ha[ve] no valid defence in the [defamation] proceeding; and [Emphasis added.]

[45] Does s.137.1(4)(a)(ii) provide an off-ramp allowing a judge to grant the anti‑SLAPP motion without proceeding to the weighing exercise required by s. 137.1(4)(b)?

[46] Consider two scenarios: 1) The responding party to the anti-SLAPP motion, here Benchwood, shows that the moving party, the Homeowners, have no valid defence to the defamation action; or 2) Benchwood is able to establish only that the Homeowners might not have a valid defence to the defamation action.

[47] Textually, the emphasized word “and” at the end of s. 137.1 (4)(a) requires the judge to advert to s. 137.1(4)(b) regardless of the scenario. The second scenario, in which the defamer might have a defence, has proven troublesome. Some judges have treated the second scenario as though a valid defence exists: If the defamed party cannot show that it has an open and shut case against the defamer – that is, cannot show that “the moving party has no valid defence” – then the defamation action must be dismissed as an anti-SLAPP action and the purported defamer escapes.[^27] This was the mistaken approach the motion judge took in this case.

[48] It was mistaken for four reasons: First, it effectively reads s. 137.1 (4)(b) out of the section by entirely ignoring the pregnant “and” at the end of s. 137.1 (4)(a).

[49] Second, in so doing, the mistaken approach ignores the decisions that hold the weighing exercise in s. 137.1(4)(b) is to be the “fundamental crux” of the court’s analysis.[^28]

[50] Third, the dynamic of the weighing exercise in s. 137.1(4)(b) more carefully assesses the competing interests of free speech on the one hand, and defamation law’s reputational protection on the other hand, in the fact specific context of a case.

[51] Fourth, I am of the view that the Supreme Court’s decision in Bent calls for a more nuanced approach to s. 137.1(4)(a)(ii). In the case of a defamation action, the responding party need only show grounds to believe that the defences do not tend to weigh more in the moving party’s favour.[^29]

[52] My interpretation of s.137.1(4)(a)(ii) in the context of the whole section and particularly the weighing exercise required by s. 137.1(4)(b) might seem to be inconsistent with some of Côté J.’s words in Pointes, at para. 58:

The word no [in (ii)] is absolute, and the corollary is that if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed.

[53] I would distinguish Pointes. In my view, these words cannot be applied easily in the context of a defamation claim, as applicable as they might have been to Pointes itself, which was a contract dispute. I say this for several reasons. First, the intricate nature of a defamation action and the plethora of possible defences makes such a categorical approach to s. 137.1(4)(a)(ii) both problematic and unjust. It is difficult to analyze a statement or set of statements in such a categorical fashion. In this case, for example, there were several allegedly defamatory statements. The defence of justification or truth might be available for some, none, or perhaps all, of the statements. The categorical approach does not comprehend such a mixed set of possible outcomes. Quite the opposite, since the literal application of Côté J.’s words is that any valid defence to any of the allegedly defamatory statements would lead to a dismissal of the entire defamation action.

[54] Second, a defamatory statement might be true at some level, but the problem is less the truth of the statement than what has sometimes been referred to as the “sting” of the words, evident in the presence of malice.

[55] Third, the categorical approach raises the stakes in an anti-SLAPP motion and encourages the development of an enormous record exploring every possible defence at length. Such a comprehensive approach is completely inconsistent with the intended summary nature of anti-SLAPP motions. Indeed, Côté J.’s statement quoted immediately above, was followed by these lines:

As with the substantial merit prong, the motion judge here must make a determination of validity on a limited record at an early stage in the litigation process – accordingly, this context should be taken into account in assessing whether a defence is valid. The motion judge must therefore be able to engage in a limited assessment of the evidence in determining the validity of the defence.

[56] I see these instructions as inconsistent with the categorical approach posited in the first statement with respect to defamation actions.

[57] Further, this court has observed that anti-SLAPP motions have “been misused as a costly and time-consuming surrogate for a summary judgment motion” in defamation actions.[^30] They are not to be “a new form of summary trial on the merits of a defamation action”.[^31] Brown J.A. recently commented that anti-SLAPP motions “are not designed or appropriate” for cases in which “any determination on the merits will patently require a deep dive into the evidence and the making of extensive findings of credibility.”[^32]

[58] I am therefore confident that Côté J. understood the need for a more nuanced analysis and did not intend for such a categorical approach to apply in defamation actions.

[59] I conclude that the preferable approach to take to anti-SLAPP motions in defamation actions, where it is not immediately clear that there is no valid defence, is to move smartly to the weighing exercise in s. 137.1(4)(b). After all, it is intended to be the “fundamental crux” of the court’s analysis.

(3) The motion judge erred in her approach to the weighing exercise relating to harm and the public interest under s. 137.1(4)(b)

[60] I repeat the text for convenience:

(4) A judge shall not dismiss [Benchwood’s defamation] proceeding under subsection (3) if the responding party [Benchwood] satisfies the judge that,

(b) the harm likely to be or have been suffered by the responding party [Benchwood] as a result of the moving party’s [the Homeowners’] expression is sufficiently serious that the public interest in permitting the [Benchwood’s defamation] proceeding to continue outweighs the public interest in protecting [the Homeowner’s] expression.

[61] I address first the governing principles and then their application in this case.

(a) The Governing Principles Underpinning s. 137.1(4)(b)

[62] The public interest weighing stage is the crux of the anti-SLAPP analysis.[^33]

[63] Unlike the initial public interest requirement under s 137.1 (3), the focus at this stage is “what is really going on” in the case; it is necessary to assess the quality of the expression, including the motivation behind it, the medium through which it was expressed, and its subject matter.[^34]

[64] The closer an expression is to any of the fundamental values of s. 2(b) of the Charter – freedom of thought, belief, opinion and expression – the greater the public interest will be in protecting it.[^35] The cases have identified several factors:

• Personal attacks and defamatory statements are only remotely related to these core values.[^36] Consequently, there is less public interest in protecting these types of expressions.[^37]

• Statements that are exaggerated or inaccurate, or contain deliberate misrepresentations also reduce the public interest protection afforded to those expressions.[^38]

• Expressions made for the purpose of interfering with another’s ability to express their views may also attract less public interest protection.[^39]

• The motivation behind the subject expressions can lower the public interest in protecting the expression.[^40]

• The presence of “classic SLAPP” indicia, which include: whether the plaintiff has a history of using litigation or the threat of litigation to silence critics; a financial or power imbalance that strongly favours the plaintiff; a punitive or retributory purpose animating the action; and minimal or nominal damages suffered by the plaintiff.[^41]

(b) Application of the Governing Principles to this Appeal

[65] The motion judge undertook the analysis required by s. 137.1(4)(b) in case the analysis leading her to dismiss the action under s. 137.1(4)(a)(ii) – no valid defence – was wrong. She went on to find that Benchwood had failed to establish that any harm suffered as a result of the Homeowners’ defamatory statements was serious, because there were “other factors that may have had an effect on [Benchwood’s] reputation,” citing Pointes, at para. 72: “[E]vidence of a causal link between the expression and harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm.”

[66] As the motion judge noted, one key problem for Benchwood is that several of the negative events cited as harming Benchwood’s business seem to have preceded the Homeowners’ postings, including the non-renewal of Benchwood’s membership in the Niagara Home Builders’ Association in October 2020, which came about as the result of customer complaints. Further, the harms asserted, such as contract cancellations, were not backed up by evidence that the Homeowners’ postings were the cause. The Benchwood firm “appears to be doing well”.

[67] The Homeowners’ statements concerned a home renovation gone wrong. The postings did not relate to a matter of public interest or to safeguarding the fundamental value of public participation in democracy, to which personal attacks and defamatory statements are only remotely related. This was a private dispute. I repeat what this court said in Grist: “the resolution of purely private disputes between more or less equals – disputes that have no immediate bearing on the rights or obligations of others – can seldom be a matter of public interest.” These words also capture this dispute.

[68] There is little here partaking of classic SLAPP indicia – no power imbalance, no history of Benchwood using litigation to silence critics, although there is some doubt about whether the damages claimed are more than merely nominal.

[69] Then there is the presence of malice. The motion judge addressed this question squarely:

The plaintiffs have alleged malice on the part of the defendants in making the impugned statements. A general plea of malice without further particulars is not sufficient. In my view, I am satisfied that the dominant motive for the defendants to post the comments they did was as a warning to other consumers after they saw photos of their home posted on the plaintiffs’ [Benchwood’s] social media.

[70] With respect, this analysis falls into the problems with s. 137.1(4)(a)(ii) in the context of a defamation action that I raised earlier at paras. 53 to 56. The interest in protecting the expression is reduced by personal attacks and defamatory statements. Statements that are exaggerated, inaccurate or contain deliberate misrepresentations also reduce the public interest in protecting them. Perhaps the Homeowners’ dominant motive was to warn other consumers. But that was not their only motive. Consider these statements: Ms. Prescott posted that Mr. Slaven and his subcontractors were “in on this dishonest operation together” and “operate in a dishonest manner;” Mr. Green referred to Mr. Slaven as “a miserable con artist” and a “dirtbag”, and accused him of threatening women and making false assault charges against women. The statements themselves appear to be particulars of malice. The accusations go well beyond a complaint about Benchwood walking off the job and doing some of its work poorly.

[71] This is a case in which the straight logic of a private dispute should apply. Section 137.1 does not apply. There is no reason to stop the Benchwood defamation action from proceeding. The tension between reputation and free speech that is endemic to anti-SLAPP motions resolves by giving priority to reputation in this case.

(4) Did the motion judge err in her costs award?

[72] This issue is no longer live.

D. Disposition

[73] For the reasons set out above, I would allow the appeal, with costs.

[74] The successful moving party on an anti-SLAPP motion to dismiss is entitled to costs on the motion and in the proceeding on a full indemnity basis under s. 137.1(7). The motion judge awarded the Homeowners $75,000 inclusive of costs and disbursements. Because the appeal is being allowed, s.137.1(8) comes into play. It provides:

(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.

[75] I would award Benchwood costs on the appeal in the amount of $14,000, all-inclusive, as agreed. With respect to costs for the motion, I would invite the parties to make written submissions of no more than 5 pages in length. Benchwood’s submissions shall be submitted within one week from the date of these reasons and the Homeowners shall submit by March 13. Benchwood may submit a reply of no more than 2 pages in length by March 20.

Released: March 6, 2025 “P.D.L.”

“P. Lauwers J.A.”

“I agree. David Brown J.A.”

“I agree. Coroza J.A.”

APPENDIX

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. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

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 party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

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. 2015, c. 23, s. 3.

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.

[^1]: The motion judge dismissed the action by way of an endorsement on January 3, 2024, with reasons for decision released on January 16, 2024. The reasons are unreported.

[^2]: For brevity, I refer to the appellants collectively as “Benchwood” and to Ms. Prescott and Mr. Green as the “Homeowners” unless the context requires more specificity.

[^3]: R.S.O. 1990, c. C.43. For convenience, the text of s. 137.1 is reproduced in an Appendix.

[^4]: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 35, citing Tamming v. Paterson, [2021] O.J. No. 7126, 2021 ONSC 8306 (S.C.J.), per Myers J. at paras. 7–9, and Professor Hilary Young, “Canadian Anti-SLAPP Laws in Action” (2022), 100:2 Can. B. Rev. 186.

[^5]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118. The Vavilov court said, at para. 117, that “text, context and purpose” reflects the “modern approach” to interpretation, which requires “that the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 6, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. In my view, the “text, context and purpose” approach supplants the Driedger litany.

[^6]: Park Lawn, per Pepall J.A., at para. 33. And see Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, per Miller J.A., at para. 17, leave to appeal refused, [2023] S.C.C.A. Nos. 40876, 40867, and 40875.

[^7]: Halsbury’s Laws of Canada, “Defamation”, (Toronto: LexisNexis Canada, 2023 Reissue), at HDE-1; See also Allen M. Linden et al, Canadian Tort Law, 12th ed. (Toronto: LexisNexis Canada Inc., 2022), c. 14, on defamation.

[^8]: Irwin Toy Ltd. v. Québec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 968.

[^9]: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 121.

[^10]: Church of Scientology, at para. 121.

[^11]: WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 SCR 420 at para. 2.

[^12]: WIC Radio, at para. 30.

[^13]: Boyer v. Callidus Capital Corp., 2023 ONCA 233, 480 D.L.R. (4th) 293, at para. 28.

[^14]: Pointes, at para. 58.

[^15]: See, for example, Mondal v. Evans-Bitten, 2023 ONCA 523, 485 D.L.R. (4th) 90 (“Mondal (ONCA)”), at para. 56; Marcellin v. London (City) Police Services Board, 2024 ONCA 468, at paras. 71, 77.

[^16]: Luc Crawford Design Inc. v. Mullowney, 2021 ONSC 7849, per Muszynski J., at para. 26.

[^17]: See Bradford Travel and Cruises Ltd. v. Viveiros, 2019 ONSC 4587, at para. 31; 910938 Ontario Inc v. Moore, 2020 ONSC 4553, at paras. 19–22; Thorman et al. v. McGraw, 2021 ONSC 7671, at paras. 41–42, rev’d 2022 ONCA 851; Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, at para. 89; and New Dermamed Inc. v. Sulaiman, 2018 ONSC 2517, at para. 25.

[^18]: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 33; Hamilton v. Vaughan, 2025 ONCA 98, at para. 9; Dent-X Canada v. Houde, 2022 ONCA 414, at para. 11; and Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, at para. 8, leave to appeal requested but application for leave discontinued, [2022] S.C.C.A. No. 274.

[^19]: Mondal (ONCA), at paras. 40, 42–43.

[^20]: Mondal v. Evans-Bitten, 2022 ONSC 809, rev’d 2023 ONCA 523, 485 D.L.R. (4th) 90, at para. 40.

[^21]: 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 105.

[^22]: Pointes, at para. 27.

[^23]: Pointes, at para. 101.

[^24]: Grist v. TruGrp Inc., 2021 ONCA 309, 156 O.R. (3d) 171, at para. 19, citing Sokoloff at para. 19.

[^25]: Echelon, at para. 8; Sokoloff, at para. 33; Hamilton, at para. 9; Dent-X Canada, at paras. 11–14.

[^26]: Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, 460 D.L.R. (4th) 245, at para. 12; Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, 480 D.L.R. (4th) 639, at paras. 44-45; Levant v. DeMelle, 2022 ONCA 79, 79 C.P.C. (8th) 437, at para. 60, leave to appeal refused, [2022] S.C.C.A. No. 88; Hamer v. Jane Doe, 2024 ONCA 721, at para. 40; and Williams v. VAC Developments Limited, 2024 ONCA 713, at para. 14.

[^27]: See, for example, Mondal (ONCA), at para. 56; Marcellin, at paras. 71, 77.

[^28]: Pointes, at para. 18; Parklawn, at para. 28; Hamer, at para. 93; Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, at para 47; Callidus, at para. 50; Thorman v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577 (Thorman, (ONCA)), at para. 9; 40 Days for Life v. Dietrich, 2024 ONCA 599, at para. 62, leave to appeal refused, [2024] S.C.C.A. No. 396; and Marcellin, at para. 11.

[^29]: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 103.

[^30]: Catalyst, at para. 38; Thorman (ONCA), at para. 4.

[^31]: Grist, at para. 17; Pointes, at para. 38; and Hamer, at para. 37.

[^32]: Li v. Barber, 2025 ONCA 169, at para. 62.

[^33]: Parklawn, at para. 28; Hamer, at para. 93; Burjoski, at para. 47; Callidus, at para. 50; Thorman (ONCA), at para. 9; 40 Days, at para. 62; and Marcellin, at para. 11.

[^34]: Marcellin, at para. 102; Hamer, at paras. 93, 96; Burjoski, at para. 47; Thorman (ONCA), at para. 15; and 40 Days, at para. 71.

[^35]: Hamer, at paras. 96–97; Burjoski, at para. 47.

[^36]: Marcellin, at para. 102.

[^37]: Hamer, at para. 97; Thorman, at para. 15; and Burjoski, at para. 47(i).

[^38]: See Burjoski, at para. 93.

[^39]: See 40 Days, at paras. 87–90.

[^40]: Buttar, at paras. 90–91.

[^41]: Callidus, at para. 53; Burjoski, at para. 47(i).