Supreme Court of Canada clarifies the test for dismissing non-defamation claims as SLAPP suits

Date Closed

September 10, 2020

Lead Office

Toronto

On September 10, 2020, The Supreme Court of Canada issued a decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, in favour of the Pointes Protection Association, a group of citizens concerned about the environmental impacts of a proposed development.

The land development company responsible for the proposed new development wanted to build a residential neighborhood on part of a wetland. The local conservation authority approved the development plan, but the City Council denied approval. The Association asked a court to review the conservation authority's decision, and the developer appealed the City Council decision to the Ontario Municipal Board (OMB). After the City Council decision came down in their favour, the Association agreed not to go to court about the conservation authority decision.

Representatives of the Association gave testimony at the OMB hearing about how the developer’s plan would harm the environment and destroy part of the wetland. The developer sued, asserting that this was a violation of the aforementioned agreement. The Association argued that the developer's lawsuit was a SLAPP suit.

The Motion Judge agreed with the developer, but the Court of Appeal agreed with the Association. The Supreme Court agreed with the Court of Appeal that the agreement did not prohibit the Association from giving evidence before the OMB. They also stated that it the public interest in protecting the Association’s testimony before an administrative decision-maker was greater than the public interest in preventing the harm the developer alleged it had experienced.

The Canadian Constitution Foundation, a non-profit with the mission of defending the constitutional rights and freedoms of Canadians, acted as intervener in this appeal.

McCarthy Tetrault advised the Canadian Constitution Foundation with a team led by Adam Goldenberg that included Simon Cameron, Solomon McKenzie and Aya Schechner.

The following is excerpted and adapted from the Supreme Court of Canada’s “Case in Brief” summary of this judgment. The Court’s summary is available in full here: https://www.scc-csc.ca/case-dossier/cb/2020/38376-eng.aspx

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