Ontario Court Of Appeal Reaffirms Broad Protection Under Anti-SLAPP Legislation

The Ontario Court of Appeal’s decision in Sheridan Retail Inc. v Roy reinforces the breadth and strength of Ontario’s anti-SLAPP framework and serves as a reminder that attempts to recast claims to avoid dismissal under section 137.1 of the Courts of Justice Act will face careful scrutiny.

Background

The dispute arose from Sheridan Retail Inc.’s (“Sheridan”) proposed redevelopment of Sheridan Mall in Mississauga. Sheridan sought municipal approval to construct two 15-storey condominium towers as part of the redevelopment project.

Pierre Roy (“Roy”), an engineering student and local resident, publicly raised concerns relating to environmental impacts, safety issues, and broader community considerations associated with the project. Roy attended public meetings and communicated concerns to the City of Mississauga.

Sheridan subsequently commenced an action, alleging defamation, trespass, inducing breach of contract, and unlawful interference with economic relations.

Roy brought an anti-SLAPP motion under section 137.1 of the Courts of Justice Act, seeking dismissal of the action on the basis that it arose from expression relating to matters of public interest.

At the motion stage, Sheridan largely retreated from portions of its claim and attempted to focus on its trespass allegations. Sheridan argued that the true “crux” of the proceeding involved Roy’s alleged unauthorized entry into areas of the mall and that it was therefore a private dispute.

The motion judge rejected that position and dismissed the action. Sheridan appealed.

Court of Appeal Reasoning

The Court of Appeal upheld the dismissal and emphasized the significant deference owed to motion judges on anti-SLAPP motions, particularly in relation to the balancing exercise under section 137.1.

The Court rejected Sheridan’s attempt to isolate its trespass claim from the broader proceeding, noting that section 137.1 applies to proceedings as a whole, and that the issue was whether the expression was causally connected to the lawsuit.

The Court concluded that the motion judge was entitled to find that Roy’s communications and public complaints were the true driving force behind the action. It pointed to several factors supporting that conclusion:

• Sheridan’s correspondence threatened litigation in response to Roy’s public complaints;
• the statement of claim prominently featured Roy’s communications;
• Sheridan itself acknowledged that one purpose of the action was to stop Roy’s complaints; and
• Sheridan linked Roy’s alleged trespasses to his collection of information for use in his public advocacy.

The Court also upheld the motion judge’s finding that Sheridan failed to satisfy the “merits-based hurdle.” Although Sheridan argued that its trespass and economic tort claims possessed substantial merit, the Court concluded that Sheridan had failed to provide meaningful evidence of actual damages or economic loss.

While trespass may be actionable without proof of damages, the Court observed that a purely technical claim producing only nominal damages may not possess the substantial merit necessary to outweigh protected expression. The Court emphasized that anti-SLAPP motions require more than technically viable claims; they require claims with a real prospect of success.

The Court similarly upheld the motion judge’s balancing exercise under the “public interest hurdle,” concluding that the public interest in protecting Roy’s expression outweighed any harm demonstrated by Sheridan.

The Court noted that Roy’s expression concerned regulatory compliance, environmental considerations, and community impacts arising from a significant redevelopment proposal. The Court held that these issues were squarely within matters of public interest.

Damages and Costs

The Court of Appeal also upheld the motion judge’s award of $25,000 in damages to Roy under section 137.1(9).

The Court agreed that the motion judge was entitled to conclude that Sheridan’s conduct went beyond merely attempting to restrict expression. The motion judge had found that Sheridan employed intimidation tactics, including advancing an extensive damages claim, relying on a voluminous expert report, and engaging in aggressive litigation conduct that ultimately chilled Roy’s participation in further public processes.

However, the Court reached a different conclusion on costs.

Although anti-SLAPP motions presumptively attract full indemnity costs, the Court found that the motion judge acted unfairly by deciding that costs would be awarded on a full indemnity basis before receiving submissions from the parties.

The Court therefore granted leave to appeal the costs award and while agreeing that full indemnity costs were warranted, nevertheless reduced Roy’s costs from approximately $156,000 to $75,000. In doing so, it emphasized that anti-SLAPP motions are intended to be efficient and economical procedures rather than trial-like proceedings generating disproportionate expense.

Takeaway

This appeal decision confirms that Ontario courts will focus on substance rather than form when evaluating anti-SLAPP motions. Parties cannot avoid section 137.1 scrutiny by reframing a dispute or isolating one cause of action from the broader proceeding.

Most significantly, the decision affirms the continuing purpose of anti-SLAPP legislation: protecting meaningful public participation from litigation used as a tool of intimidation.

The author would like to thank Harry Scannell, Student-at-Law, for his assistance with this blog.

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