Sana Halwani

This is a costs endorsement following a successful appeal by Subway against the Canadian Broadcasting Corporation (CBC) in an anti-SLAPP motion.

Subway sought partial indemnity costs of $61,291.30.

CBC requested reconsideration of the costs award based on Supreme Court of Canada anti-SLAPP decisions (Pointes and Bent) or a reduction to $17,000.

The Court of Appeal upheld its decision to award partial indemnity costs, distinguishing the case from Bent due to the availability of substantial judicial guidance on s. 137.1 of the Courts of Justice Act prior to CBC's motion, and the significant costs incurred by Subway.

The court awarded Subway $40,000 in partial indemnity costs.

The appellants, Subway, appealed the dismissal of their $210 million defamation action against the Canadian Broadcasting Corporation (CBC) under an anti-Strategic Litigation Against Public Participation (SLAPP) motion (s. 137.1 of the Courts of Justice Act).

The action arose from a CBC Marketplace report alleging Subway's chicken products contained only 50% chicken DNA.

The Court of Appeal found that the motion judge erred in applying a higher standard for the "no valid defence" test and in weighing the public interest.

The Court determined that Subway had established grounds to believe CBC had no valid defence of responsible communication and that the public interest in allowing the action to proceed outweighed the public interest in protecting the expression, given the significant reputational and financial harm alleged and the lack of urgency in disseminating unverified information.

The appeal was allowed, and the defamation action against CBC was permitted to continue.

This appeal addressed the application of Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act) to a negligence claim.

Subway sued Trent University for negligence and defamation after Trent's testing of Subway's chicken products was featured on a CBC "Marketplace" broadcast.

The motion judge dismissed Trent's anti-SLAPP motion, finding the negligence claim did not arise from an expression.

The Court of Appeal allowed Trent's appeal, holding that the negligence claim did arise from an expression related to a matter of public interest.

Furthermore, the Court found that Subway's negligence claim lacked substantial merit because no duty of care existed between Trent and Subway, as there was no undertaking of responsibility by Trent in favour of Subway, nor any reliance by Subway on Trent's services or statements.

The motion judge's order was set aside, and Subway's negligence claim was dismissed.

The court determined costs following two anti-SLAPP motions under s. 137.1 of the Courts of Justice Act.

The defendant broadcaster, having successfully dismissed the defamation claim against it, was awarded costs on a full indemnity basis, though the requested amount was reduced to $500,000 plus disbursements due to the motion's excessive complexity.

The plaintiff, having successfully defeated the defendant university's novel anti-SLAPP motion regarding a negligence claim, was awarded partial indemnity costs of $222,000, as the university's motion lacked the characteristics of a true SLAPP suit.

The defendants, CBC and Trent University, brought anti-SLAPP motions under s. 137.1 of the Courts of Justice Act to dismiss the plaintiffs' $210 million defamation and negligence action.

The action arose from a Marketplace report alleging the plaintiffs' chicken sandwiches contained only 50% chicken based on DNA tests conducted by Trent University.

The court granted CBC's motion, finding that while the defamation claim had substantial merit, CBC had a valid defence of responsible communication and the public interest in protecting investigative journalism outweighed the plaintiffs' private harm.

The court dismissed Trent University's motion, holding that the negligence claim regarding faulty laboratory testing did not arise from an expression relating to a matter of public interest and was therefore not subject to dismissal under the anti-SLAPP provisions.

The Plaintiffs (Subway) sought a sealing order for 10 documents in a defamation action, comprising six financial documents and four private contracts.

The Canadian Broadcasting Corporation (CBC) opposed the motion, citing the open courts principle.

The court applied the Sierra Club test, requiring a serious risk to an important interest and a balancing of salutary and deleterious effects.

The court found that the financial documents met the test due to detailed, commercially sensitive sales data that could provide competitors with an unearned advantage, and ordered them sealed.

However, the four private agreements (supplier and internal corporate structure agreements) were not sealed, as the potential harm from their disclosure was deemed speculative and did not outweigh the public interest in open courts.

No costs were awarded due to the mixed success and public interest nature of the opposition.

This endorsement from a case conference addresses scheduling issues in a complex action, particularly concerning examinations for discovery and contemplated motions.

Due to a change in counsel for the main defendant, CBC, discoveries were adjourned.

CBC's new counsel seeks further disclosure, which the plaintiffs state is largely held by a third-party contractor.

The court suggests scheduling a "double motion" for production if necessary.

Additionally, the court emphasizes the need for CBC to promptly decide and bring any contemplated anti-SLAPP motion under section 137.1 of the Courts of Justice Act, citing Court of Appeal guidance that such motions should be brought at an early stage.

The court defers rescheduling discoveries until these motions are resolved.

The applicants sought a Norwich Order against the respondent university to obtain documents and information regarding DNA testing of the applicants' chicken products.

The testing was featured in a media broadcast that the applicants alleged was defamatory.

The court dismissed the application, finding that the applicants had already identified the prospective defendants and could obtain the necessary information through the normal discovery process in their existing or planned litigation against the broadcaster and the university.

However, the court ordered the university to preserve the relevant evidence.