Court File and Parties

COURT FILE NO.: CV-21-00665546

DATE: 20211217

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John Tamming, Plaintiff

-and-

Sue Paterson, Defendant

BEFORE: FL Myers J.

COUNSEL: David Z. Seifer, for the plaintiff

Janice Finney, for the defendant

HEARD: December 15, 2021

CIVIL PRACTICE COURT ENDORSEMENT

[1] The plaintiff is a municipal councillor. He says that he questioned why the local Chief Medical Officer of Health is [allegedly] paid more than any other CMOH in Ontario. In response, the defendant, who is chair of the local Board of Health, published a letter to the municipal council accusing Mr. Tamming of impairing the credibility of government anti-COVID-19 measures.

[2] Mr. Tamming claims that Ms. Paterson has essentially blamed him publicly for COVID-19 deaths because he questioned the salary of a government official.

[3] Mr. Tamming sues for defamation.

[4] Ms. Paterson wishes to bring a motion to dismiss the claim under s. 137.1 of the Court of Justice Act, RSO 1990, c C.43 as a “Strategic Lawsuit Against Public Participation” also known as an anti-SLAPP motion. In addition, she says that she is protected from liability for her official actions under s. 95 of the Health Protection and Promotion Act, RSO 1990, c H.7.

[5] The action is brought under the Simplified Procedure. It is a claim for modest damages and must therefore be dealt with by processes that are proportional to the amount in issue.

[6] The defendant has delivered her notice of motion. That started the 60-day time period for hearing the motion under s. 137.2 (2) of the statute.

[7] These motions tend to be complex and expensive proceedings. Although they are not intended to involve a deep dive into the merits or even a detailed review akin to a motion for summary judgment, they usually do represent virtually the entire trial being played out in advance. Plaintiffs are usually not willing to leave evidence in their briefcases when they risk their claims being dismissed. Defendants similarly want to show that there are no grounds to defeat their defences, that the plaintiff has suffered little if any actual harm, and that the dismissal of the proceeding is the just outcome.

[8] Despite the Legislature’s intention to create a preliminary hurdle, the process advanced in practice is a more like a marathon. To that end, the mandatory 60-day time limit for resolving these motions is routinely ignored. Counsel on both sides usually need more time and, in Toronto at least, motion appointments are backlogged by far more than 60 days.

[9] We are seeing an ever-increasing volume of anti-SLAPP motions in Toronto. The powerful remedy and the costs protections for the moving defendants make these motions attractive. The size of the endeavour can also be seen as an incentive for abusive SLAPP plaintiffs and others with incentive to expand proceedings.

[10] I am concerned that none of the players in this type of motion seem to have incentive to implement the process as intended by the Legislature and to constrain the process from becoming a deep dive into the merits that it is not supposed to happen. In addition, actions under the Simplified Procedure have an added need for a proportional process.

[11] I might normally have convened a case conference to allow a judge to work with counsel to try to narrow the issues and limit the evidentiary record. There is little assurance of success of case management of these motions however. Defamation cases are often about pride and perceived reputation as much or more than money. In a case like this one, between competing political actors, for public comeuppance, I would expect performative tactics to overwhelm economic incentives.

[12] In my view, one possible way to try to keep these motions constrained is to enforce the 60-day time limit required by the statute. One of the ills of SLAPP cases is that just by bringing the lawsuit, the plaintiff can inflict on the defendant an obligation to incur very significant legal fees to defend herself. While the harm is ultimately ameliorated by the defendant’s presumptive entitlement to full indemnity for her costs under s. 137.1 (7) if she succeeds, the possibility of later indemnity does not prevent the need to finance the case in real time and the distress associated with doing so. The Supreme Court of Canada noted many years ago that the cost of civil litigation is beyond the reach of most Canadians of normal means.

[13] The defendant is entitled to have her defences heard efficiently and affordably. If this is a SLAPP as defined in s. 137.1, it should be ended as soon as possible. If the plaintiff is entitled to sue, he should be able to get to a summary trial as anticipated by Rule 76.

[14] While the compression of preparation time does not prohibit overkill, at least it imposes a practical limit. There are only 14,400 six-minute periods in 60 days and counsel have to sleep for at least some of that time.

[15] There are no exceptions to the 60-day time limit set out in s. 137.1 (2). I am not finding that there can never be a longer process. To date, almost all of these motions have taken longer than 60 days to be heard in Toronto. I say nothing about devices to obtain a de facto extension like holding back filing the notice of motion to prevent the 60-day period from commencing or the availability of an adjournment on the return of the motion. Case conferences may also have a role.

[16] In my view, the simple fact that it is more convenient for counsel to have more time to develop their cases more fully should not usually be a basis to extend the time on its own. That will always be the case and it directly undermines the purpose of the statutory time limit.

[17] The existence of a backlog on the court’s calendar is similarly not a basis on its own to extend the time. The time limit would not be needed if the court could hear the motion conveniently within the 60-day period. The time limit is therefore only required when there is a backlog. The Legislature has directed the court to give priority to these motions to ensure that they are heard quickly as required. Time will tell whether this priority becomes a material issue for other matters scheduled months earlier.

[18] In this case, I see no basis to try to carve out an exception. Therefore I do not have to struggle with the nature or content of any exception to the 60-day time limit that may exist.

[19] I have scheduled the motion for three hours on February 11, 2022. If another motion has to be bumped that day, that will be the result of the legislation. With any luck, scheduled matters will settle and a judge will be available without bumping another matter.

[20] Counsel ask to be entitled to cross-examine despite the prohibition against cross-examination in simplified cases under Rule 76.04 (1)2. Both counsel agree that the seven hour limit on cross-examination on anti-SLAPP motions set out expressly in s. 137.2 (4) of the statute trumps the Rule. I agree. I therefore direct that despite Rule 76.04 (1)2, cross-examinations are available as limited by s. 137.2 (4) of the statute.

FL Myers

Date: December 17, 2021