Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MICHELE MCGRATH; MATTHEW MCGRATH, Plaintiffs
AND:
MARYA DUCKWORTH; ALEXANDRA JENKINS; THOMAS CONNELL; SUSAN HOWE; JANE SHAPIRO; ALISON MARSH; SARA D'ELIA; HOSEN MARJAEE; JAMES SLOAN; MELANIE SHISHLER; KATHERINE FALCONI; CATHERINE MORTON; FARYL HAUSMAN; NORTH ROSEDALE RESIDENTS' ASSOCIATION, Defendants
BEFORE: Paul B. Schabas J.
COUNSEL: Kevin O'Brien, David Williams and Melissa MacDonald, for the Plaintiffs Steven G. Frankel, for Melanie Shishler, Defendant Michael L. Byers and Cheyenne Parsons, for Alexandra Jenkins, Thomas Connell, Susan Howe, Jane Shapiro, Alison Marsh, Sara D'Elia, Hosen Marjaee, James Sloan, Katherine Falconi, Catherine Morton and North Rosedale Residents' Association, Defendants Jordyn Selznick, for Faryl Hausman, Defendant Shantona Chaudhury, for Marya Duckworth, Defendant Natalie Kolos, for Saxe, Defendant in CV-25-00757307-0000 McGrath v. Saxe
HEARD: June 17, 2026
Endorsement
1Last week, the Court received a request from the plaintiffs for the scheduling of an urgent motion to extend the amount of time permitted for cross-examinations of the defendants’ affiants in anti-SLAPP motions. The request was urgent because the motions are scheduled to be heard in September, and all cross-examinations have been ordered to be completed by July 10, 2026.
2I directed that the matter be dealt with by way of a case conference and requested that short written case conference briefs be submitted in advance, which I received on June 16, 2026.
3I heard brief submissions at a case conference on June 17, 2026.
4The plaintiff has sued 13 individuals as well as the North Rosedale Residents’ Association. The action arises from a dispute about a masonry wall the plaintiffs were erecting on their corner lot in an upscale Toronto neighbourhood, which was subsequently ordered to be removed by the City. The plaintiffs claim that the defendants engaged in a defamatory campaign against them by alleging the plaintiffs acted illegally and unethically in building the wall.
5The defendants have retained four different law firms, and they have served four separate anti-SLAPP motions and motion records.
6On their anti-SLAPP motions, the defendants have submitted affidavits from 14 affiants – eight in their initial materials and six more in their reply records. Three of the affiants are not defendants. The plaintiffs point out that the lead affiant has filed an affidavit 130 pages long. The defendants note that Mr. McGrath has responded with an affidavit of a similar length. The defendants also state that several of their affidavits are brief, some by defendants saying they had nothing to do with the allegations. I am told that the plaintiffs have just filed one other affidavit, from a lawyer, in addition to Mr. McGrath’s affidavit.
7Section 137.2(4) and (5) of the Courts of Justice Act limits cross-examination on such motions to a total of seven hours, unless the court orders otherwise where “necessary to do so in the interests of justice.”
8Not surprisingly, the plaintiffs have sought more time, but this has been refused by the defendants. By now, I suspect that at least some counsel have spent more time arguing about granting more time than the time that would have been spent cross-examining the affiants.
9It was intended that anti-SLAPP motions be conducted in an “efficient and economical” manner and be dealt with expeditiously. This is reflected in the limits on cross-examination. Anti-SLAPP motions are meant to be dealt with on a limited record with limited cross-examinations. They are not meant to be an adjudication of the merits of the case, nor should they become motions for summary judgment: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at paras. 38 and 52. In practice, however, anti-SLAPP motions have often become massive undertakings, akin to hard-fought summary judgment motions. That appears to be what has happened here.
10The defendants’ reliance on the principles set out in Pointes is not persuasive. It is the defendants who, in four separate motions, with four separate sets of counsel, have filed affidavits from 14 individuals, including a very lengthy one from at least one of the defendants. As seems to happen frequently in these motions, the defendants appear to have put their best, and full foot forward.
11In these circumstances, the request by the plaintiff to seek 15 hours, rather than seven, to conduct cross-examinations of 14 affiants is reasonable and arises directly from the number of motions and affidavits filed by the defendants. Limiting the plaintiffs to just seven hours would likely prevent meaningful cross-examination of several affiants on a motion that could result in a dismissal of the plaintiffs’ case.
12Balancing the limited prejudice to the defendants in having to produce more of their affiants for cross-examination, or to have some affiants be cross-examined for a little longer, against the potential prejudice to the plaintiffs who may be denied the opportunity to challenge evidence in cross-examination, I find it is in the interests of justice to extend the plaintiffs’ time for cross-examination of the defendants’ affiants, as requested, to 15 hours.
13I leave the costs of this attendance to the judge hearing the motions in September.
Schabas J.