UNITED SOILS MANAGEMENT LTD. v. MOHAMMED, 2016 ONSC 7567
MOTION HEARD: DECEMBER 2, 2016
COUNSEL: William A. Chalmers for the moving party/plaintiff Sabrina Callaway for the responding party/defendant
ENDORSEMENT
Master R. A. Muir –
1This is a motion brought by the plaintiff pursuant to Rule 25.11 of the Rules of Civil Procedure, RRO 1990, Reg 194. The plaintiff seeks an order striking out the amended statement of defence and counterclaim delivered by the defendant. The plaintiff takes the position that the defendant’s pleading is an abuse of process.
2This is a defamation action. The plaintiff alleges the defendant posted false and defamatory messages via Facebook on September 2, 2016.
3The statement of claim was issued on September 9, 2016. The defendant served a notice of intent to defend on September 29, 2016. The defendant then brought a motion pursuant to section 137.1 of the Courts of Justice Act, RSO 1990, c C43 (the “CJA”). The defendant’s motion was served on October 6, 2016.
4On October 17, 2016, the defendant served and filed her statement of defence and counterclaim. On October 24, 2016, the defendant served an amended statement of defence and counterclaim. The statement of defence and counterclaim had been amended by the registrar pursuant to Rule 26.02(a).
5Section 137.1 of the CJA provides, in part:
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 party’s 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.
6The kind of motion brought by the defendant under section 137.1 of the CJA is commonly referred to as an Anti-SLAPP motion. The legislature has determined that in some circumstances an expedited procedure for the dismissal of an action should be made available to a defendant in order to promote and protect expression on matters of public interest. This is made clear by the stated purposes of the legislation found in s.137.1(1) of the CJA. This enactment seeks to encourage free expression and participation on matters of public interest. At the same time, it seeks to discourage the use of litigation as a means of limiting or hampering expression and participation.
7These are the clearly stated objectives of the legislation. In my view, these principles are of central importance not only for the purposes of the Anti-SLAPP motion but in determining the issues on this motion as well. Having considered these purposes in the context of this motion, I have concluded that the plaintiff’s motion should be dismissed.
8The plaintiff argued that section 137.1(5) of the CJA is clear and unambiguous. The section states quite clearly that once an Anti-SLAPP motion is made, no party may take any step in the proceeding until the Anti-SLAPP motion has been finally determined. The plaintiff submits that the delivery of a defence is a step in the proceeding. The defence and counterclaim was delivered after the Anti-SLAPP motion had been brought. The plaintiff’s position is that it clearly offends section 137.1(5) of the CJA. It should be struck out as an abuse of the process of this court.
9I agree with the plaintiff that the statement of defence and counterclaim is certainly a step in the proceeding. Absent the Anti-SLAPP motion, the next step in an action after service of a statement of claim would usually be the delivery of a statement of defence. It is clearly a step in the proceeding that advances the action toward trial.
10In my view, however, the delivery of the statement of defence and counterclaim, in the context of this claim, is more than just a step in the proceeding. It is directly connected to the Anti-SLAPP motion. Section 137.1(4) of the CJA specifically directs the judge hearing the Anti-SLAPP motion to consider the merits of any defence put forward by the defendant. As Justice Gareau noted in 1704604 Ontario Ltd. v. Pointes Protection Association, 2016 ONSC 2884 at paragraph 50:
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.
11I agree with Justice Gareau. The court hearing the Anti-SLAPP motion requires some indication of the defence the defendant intends to advance. In my view, a statement of defence, as served and filed, would satisfy that obligation, at least in part. At the very least, the pleading is relevant to the judge’s consideration of the issues on the Anti-SLAPP motion.
12In this sense, the delivery of the amended statement of defence and counterclaim is not only a step in the proceeding but a necessary and desirable step in connection with the hearing of the Anti-SLAPP motion. In my view, interpreting section 137.1(5) of the CJA to prevent the delivery of a defence would lead to an absurdity. The section should not be interpreted to prevent a party from taking a step that is obviously relevant to the Anti-SLAPP motion and would also assist in the determination of that motion. In my view, a step taken by a party that is in some way relevant to the Anti-SLAPP motion is not prohibited by section 137.1(5) of the CJA, regardless of whether or not that step may also amount to a step in the proceeding generally.
13It is also my view that this interpretation is consistent with the stated purposes of the legislation. A defendant who brings an Anti-SLAPP motion is entitled to an efficient and timely process for the determination of the motion. One of the stated purposes of the legislation is to discourage the use of litigation as a means of unduly limiting expression. The legislation should not be interpreted in a way that encourages motions within the motion and other unnecessary procedural and tactical wrangling.
14The plaintiff’s motion is therefore dismissed. If the parties are unable to agree on the issue of the costs of this motion they shall provide the court with brief written submissions by January 6, 2017.
December 5, 2016
Master R. A. Muir