Citation: United Soils Management Ltd. v. Katie Mohammed, 2017 ONSC 904

Court File No.: CV-16-560261 Date: 2017-02-07 Superior Court of Justice - Ontario

Re: United Soils Management Ltd., Plaintiff And: Katie Mohammed, Defendant

Before: Penny J.

Counsel: William A. Chalmers for the Plaintiff Sabrina Callaway for the Defendant

Heard: February 6, 2017

Endorsement

Overview

[1] This is an appeal from the order of Master Muir made December 5, 2016. The appeal involves the interpretation of s. 137.1(5) of the Courts of Justice Act, RSO 1990, c. C43. Section 137.1 is part of a suite of amendments to the Act in 2015 which govern motions to dismiss claims which are deemed to be strategic litigation against public participation (referred to as “anti-SLAPP” motions). Section 137.1(5) provides that 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.” There are no exceptions to this prohibition, nor is the court granted any discretion to grant relief from its consequences.

[2] In this case, the defendant was sued for defamation arising out of statements made in Facebook posts. These statements voiced strong opposition to a local bylaw amendment that would allow hydro-excavation trucks to dump fill near a local water supply in the Oak Ridges Moraine. Among other things, the defendant accused the plaintiff of potentially “poisoning” children.

[3] She brought a motion to dismiss the action under s. 137.1. Following the commencement of her motion, she filed a statement of defence and counterclaim. The plaintiff took the position that s. 137.1(5) prohibited the filing of a defence and counterclaim as being a “further step” taken in the proceeding. Ultimately, Master Muir dismissed the plaintiff’s motion to strike out the statement of defence and counterclaim.

[4] Master Muir held that filing the statement of defence and counterclaim was “certainly a step in the proceeding” in that it was “clearly a step in the proceeding that advances the action toward trial.” Having made that finding, however, the Master went on to conclude that, because a relevant consideration on anti-SLAPP motions (under ss. 137.1(3) and (4)), is whether there is a defence to the action, s. 137.1(5) should interpreted to allow a step in the proceeding “if it is a necessary and desirable step” in the connection with the hearing of the motion “regardless of whether or not that step may also amount to a step in the proceeding generally.” He held that “interpreting section 137.1(5) of the CJA to prevent the delivery of a defence would lead to an absurdity.” Accordingly, Master Muir dismissed the plaintiff’s motion to strike out the statement of defence.

[5] It is from that decision that the plaintiff appeals.

Standard of Review and Applicable Law

[6] It is not in controversy that the standard of review for an appeal of a decision of the Master requires an error of law, the exercise of discretion on a wrong principle or a misapprehension of the evidence resulting in a palpable and overriding error, Zeitoun v. Economical Insurance Group, [2008] O.J. ONCA 415.

[7] The basic principles of statutory interpretation are also not in serious issue. The words of an Act are to 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 the legislature. This requires a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. Where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose may vary but, in all cases, the court must seek to read the provisions as a harmonious whole, Canada (Inform. Commiss.) v. Canada (Minister of Nat. Def.), 2008 FC 766 at 46.

[8] The grammatical and ordinary sense of a section in a statute is not necessarily determinative and does not end the inquiry. The court must consider the total context of the provisions to be interpreted, no matter how plain the disposition may seem upon an initial reading, ATCO Gas & Pipeline Ltd. v. Alberta (Energy & Utilities Board ), [2006] SCC 4 at 48.

[9] Legislation is, however, presumed to be accurate and well drafted, consequent on the presumption that the legislature does not make mistakes. Thus, if the words of an Act are clear (read in the proper context of the legislation as a whole), they must be followed even though they lead to a manifest absurdity. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be, Beattie v. National Frontier Insurance Co., 2003 CanLII 2715 (ON CA), [2003] O.J. No. 4258 (CA) at 15.

Plaintiff’s Position

[10] The plaintiff argues that the Master made errors of law in his interpretation of s. 137.1(5).

[11] The plaintiff argues that the Master erred by reading in an exception to the prohibition against any party taking further steps in the proceeding. There is nothing about the context or arising from a purposive reading of the legislation that takes away from the precise and unequivocal meaning of s. 137.1(5). By opening up an exception that would allow taking any step in the proceeding as long as it is “relevant,” “desirable” or “of assistance” to the court on the motion, the Master gutted the prohibition against taking any further step in the proceeding of all content, contrary to the manifest intention of the legislature.

Defendant’s Position

[12] The defendant argues that Master Muir properly interpreted s. 137.1(5) in accordance with the purposes of s. 137.1 of the Act. The objects or purposes of s. 137.1 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.

[13] The Anti-SLAPP Advisory Panel Report to the Attorney General recommended that no step in an action should be taken until the motion for a remedy is decided, saying the “suspension of other interlocutory proceedings is required to ensure that the efficiency of the special procedure is not undermined by extraneous tactical steps pending the motion’s disposition,” Ontario Ministry of the Attorney General, 28 October 2010, para 42.

[14] Accordingly, the defendant argues that the Master properly interpreted the legislation in a manner that permitted the parties to put relevant, necessary material before the court, thereby avoiding any contradiction or absurdity in the disposition of the main motion.

Analysis

[15] In my view, the Master erred in law when he interpreted s. 137.1(5) of the Act to include an exception to the prohibition against taking any “further steps” in the proceeding, as long as the step in the proceeding would produce relevant information or information that is desirable, necessary or would be of assistance to the Court in its disposition of the motion.

[16] Section 137.1 is plain enough. Once the anti-SLAPP motion is brought, no party may take any further step in the proceeding until the motion is finally disposed of. The prohibition makes good sense given the purpose of the legislation, as it prevents the use of “extraneous tactical steps” that might be used to undermine the efficiency of the intended process. The provision contains no exceptions and, importantly, the court is afforded no power to grant relief from the prohibition in any circumstances.

[17] The Master correctly found that filing a pleading in the action is a “further step” in the proceeding. Having made that finding, the only choice was to set that step aside.

[18] I come to this conclusion with the greatest of respect to Master Muir because I entirely share the Master’s concerns about the importance of the merits, and specifically, whether the defendant has a valid defence to the action (s. 137.1(4)) and the need for evidence or information about the merits in order to properly decide the main motion on its merits.

[19] I part company with the Master, however, on the need for a statement of defence to be filed in the proceeding in order for the defendant to put material before the court on the validity of her defence.

[20] The Master, at some points in his analysis, glosses over the difference between taking steps in the proceeding as opposed to taking steps in the motion. It seems to me clear, reading the anti-SLAPP provisions of the Act as a whole, that a distinction is and must be made between taking steps or filing material in relation to the motion and taking further steps in the proceeding. The former is permitted, the latter is not.

[21] In my view, the proper course for a defendant wishing to put her statement of defence before the Court in connection with an anti-SLAPP motion is:

(a) to serve and file the defence before bringing the motion;

(b) attach a draft or proposed statement of defence as an exhibit to her affidavit filed in support of the motion; or

(c) otherwise detail the content of the defence in the affidavit filed in support of the motion.

It is, therefore, not “necessary” to interpret s. 137.1(5) as Master Muir has done in order to allow a defendant to put its defence before the court on its anti-SLAPP motion, because there exist alternative methods of putting the relevant, desirable, helpful or necessary material before the court within the context of the motion itself.

[22] In the context of this case, the plaintiff has already filed responding motion material and conducted cross-examination. I am not entirely sure that was the right thing to do in the face of its motion to strike the statement of defence and its subsequent appeal. Be that as it may, given the lack of experience and guidance on the interpretation of the anti-SLAPP provisions of the Act and the conduct of anti-SLAPP motions generally, I do not think it is appropriate or necessary for anyone to be prejudiced by the manner in which this issue is played out in this case.

[23] Accordingly, I grant the appeal. The statement of defence and counterclaim ought not to have been delivered in the action after the defendant brought her motion to dismiss under s. 137.1. That step was contrary to s. 137.1(5) and must be set aside. However, the defendant shall be entitled to delivery a supplementary affidavit limited to attaching her proposed defence and counterclaim as an exhibit. This shall be done within 7 days. The plaintiff is at liberty to file a supplementary affidavit limited to filing its proposed reply and defence to counterclaim. This shall be done within a further 7 days. Each party may conduct one additional hour of cross-examination limited to new issues, not previously examined on, arising solely out of the proposed pleadings. There shall be no further motions before the return of the anti-SLAPP motion, subject only to the direction of the judge hearing the anti-SLAPP motion.

Costs

[24] The plaintiff was successful on the motion. However, it was an entirely technical and Phyrric victory given my disposition. The plaintiff turned a molehill into a mountain. The costs of this motion are fixed in the amount of $7,500 inclusive of all fees, disbursements and applicable taxes, payable to the defendant in the cause.

Penny J.

Date: February 7, 2017