How SLAPP-type actions are brought 

Anti-SLAPP motions are most commonly initiated in response to defamation actions. Canadian defamation law is similar to that in other common law jurisdictions, though there are important differences. But like in other jurisdictions, defamation is often the mechanism for SLAPPs because of the minimal onus it places on the plaintiff.

Burden of proof

In Canada, the plaintiff must prove: 

(1) that the words in question are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of an ordinary person; 

(2) that the words in fact referred to the plaintiff; and 

(3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff (Grant v Torstar Corp, 2009 SCC 61 at para 28).

While defamation law is largely a common law tort, it is modified by provincial or territorial legislation. These laws are typically called the Defamation Act or the Libel and Slander Act, depending on the jurisdiction. 

Defences

Depending on the circumstances, there may be a defence to a defamation claim in statute or at common law. These include: 

    • Justification/Truth: available where the defendant can prove that the main thrust of the defamatory matter is true; 

    • Occasions of privilege: these may be absolute or qualified privilege (the latter is defeasible by malice). Examples of occasions of absolute privilege include parliamentary debates and testimony in court. An example of an occasion of qualified privilege is an employment reference;  

    • Responsible communication: available where the publication is on a matter of public interest and that the publication was responsible, in that the defendant was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances; 

    • Fair comment: available where the statements are made on a matter of public interest, based on fact, recognizable as comment, and where the comment could be honestly held on the facts upon which it is based; and 

    • Consent: available where the plaintiff has consented to the publication of the defamatory matter. 

Other legislative vehicles

Aside from defamation, SLAPPs have also been brought in response to actions in negligence, interference with economic relations, contract, harassment, and intentional infliction of mental harm, among other causes of action. However, defamation is by far the most common cause of action leading to an anti-SLAPP motion.