Sheridan Retail Inc v Roy, a recent Ontario Superior Court decision, emphasizes the potency of Ontario’s anti-SLAPP (Strategic Lawsuit Against Public Participation) rules, offering a cautionary signal for powerful actors seeking to misuse the civil justice system to silence critics.
The decision underscores the importance of protecting civic participation, even or perhaps especially, when it concerns well-funded entities, such as developers.
Background
The plaintiff developer, Sheridan Retail Inc., (“Sheridan”) sought permission from the city of Mississauga to build two 15-story condominium towers on the property surrounding the Sheridan Mall. The defendant, Pierre Roy (“Roy”) an engineering student and community member raised environmental, social, and safety concerns about the project in public meetings and to the City of Mississauga.
The same day that the city voted to reject the redevelopment proposal, Sheridan sued Roy claiming $300,000 in damages for defamation, inducing breach of contract, interference with economic relations, and trespass.
Roy brought an anti-SLAPP motion to dismiss the claim pursuant to section 137.1 of the Courts of Justice Act (the “Act”) which provides for the dismissal of an action where the court is satisfied that the claim arises from an expression that relates to a matter of public interest.
Sheridan conceded that most of its claim was without merit but sought leave to “prune” its claim to plead only trespass, and to dismiss the anti-SLAPP motion on that basis.
Court Reasoning
Section 137.1 sets a two-stage framework for a successful anti-SLAPP motion. First, the moving party must show the claim “arises from” expression on a public interest matter. If that succeeds, the onus switches to the responding party which must demonstrate that the claim has substantial merit and that the harm they suffered is serious enough to outweigh the public interest in protecting expression.
The section anticipates that a responding party might try to amend their pleading to avoid an order of dismissal and restricts that ability to only where permitted by a judge. In this case the judge refused to allow Sheridan to amend its pleading, finding that that the trespass claim was inextricably linked to the defamation claim and thereby inextricably linked to Roy’s public expression that was so irritating to Sheridan. The court concluded that, by claiming an unreasonably high quantum of damages, Sheridan attempted to leverage its economic power to intimidate Roy, which was one of the factors relied on by the court in concluding that the case arose from public expression.
Sheridan was unable to particularize its economic losses and admitted that the defamation claim did not have substantial merit. The trespass claim was more seriously considered by the court. But after reviewing the evidence the court concluded that Sheridan would not have brought a trespass claim, but for Roy’s expression. Overall, the court found that Sheridan’s claim lacked serious merit.
The court then considered whether Sheridan had shown that the harm it had or will suffer because of Roy’s public expression is sufficiently serious that the public interest in permitting the case to continue outweighs the public interest in protecting his expression and public participation.
The goal of this “balancing” stage is to allow the court “to step back and look at what is really going on.” In this case the Court noted that Roy was knowledgeable about engineering and land use development and engaged in expressing safety concerns about his community and environmental sustainability.
Damages and Costs Awards
In deciding to award Roy damages of $25,000 the court pointed to the aggressive and intimidating tactics employed by Sheridan before and during the litigation to gag Roy.
Although section 137.1 provides for full indemnity costs for the successful party on an anti-SLAPP motion, the parties were unable to agree on a number, requiring the court to determine the costs.
Sheridan argued that Roy’s $156,394.54 legal costs were unreasonable. Although the Court acknowledged that anti-SLAPP motions are meant to be “efficient and economical,” it reviewed the litigation tactics of Sheridan, the fact that Roy had made reasonable offers to settle and that Sheridan had expanded the scope of the issues on the motion and had unnecessarily increased its own costs and ultimately awarded Roy his full indemnity costs.
The court went on to say:
“ Finally, I would note that this was a quintessential gag suit aimed at curtailing public expression. This was precisely the type of case contemplated by the costs regime set out in the CJA. The costs regime is meant to be a deterrent to these types of lawsuits.”
Sheridan Retail Inc. v Roy is a timelyreminder that section 137.1 provides a powerful remedy to ensure that public expression remains a protected right.
The author would like to thank Harry Scannell, Student-at-Law, for his assistance with this blog.