A Hollow Victory: the Costly Reality of Successfully Litigating Against Anti-SLAPP Motions
Litigating a successful anti-SLAPP motion — or, more specifically, successfully resisting an anti-SLAPP motion as a plaintiff in a defamation action — is often a bittersweet victory.
It is a victory because your client’s defamation claim survives a motion that is, in many ways, as consequential as summary judgment. The stakes are high: the continued viability of the underlying action is on the line.
Yet the outcome can be bittersweet for reasons that temper the win.
Under section 137.1 of the Courts of Justice Act (Ontario), anti-SLAPP motions are designed to quickly dismiss lawsuits that unduly limit freedom of expression on matters of public interest.[1] The procedure is a multi-stage, burden-shifting framework. At the threshold stage under subsection (3), the moving party must show that the expression giving rise to the proceeding relates to a matter of public interest.[2]
If that burden is met, the responding party must then demonstrate under subsection (4) that:
(a) there are grounds to believe that:
(i) the claim has substantial merit; and
(ii) the moving party has no valid defence; and
(b) the harm suffered is sufficiently serious that the public interest in permitting the claim to proceed outweighs the public interest in protecting the expression.[3]
The many facets of this test have been extensively analyzed in the case law, and interpretive nuance abounds. The Court of Appeal for Ontario has described the framework as “Byzantine,” and Lauwers J.A. has even suggested it is in need of repeal, if not a complete overhaul.[4]
We recently succeeded in resisting such a motion on behalf of a plaintiff. In our case, the moving party failed to meet its threshold burden under subsection (3), and the Court found that the expressions giving rise to the defamation action did not relate to a matter of public interest. The Court heard submissions under subsection (4) but ultimately concluded the motion failed at the threshold stage.
One reason such victories can feel muted is the statutory presumption against awarding costs to a successful respondent. Under subsection (8), the regime departs from the usual “costs follow the event” principle in civil litigation, often precluding recovery of costs by a winning respondent.
However, the Ontario Court of Appeal, in cases such as Veneruzzo and Benchwood, has recognized this as potentially unfair — particularly where the moving defendant fails at the threshold stage under subsection (3). In those circumstances, the Court has held that the standard civil costs regime may still apply.[5] The rationale is straightforward: if the moving party fails to establish that the expression relates to a matter of public interest, the litigation is not “SLAPP”, and the anti-SLAPP costs framework should not govern.
Finally, given the complexity and evolving nature of this jurisprudence, many first-instance outcomes can be expected to proceed to appellate review.
Navigating a defamation and / or anti-SLAPP motion can be intricate. The lawyers Mathews Samac LLP in Toronto bring the right experience to your case. If you’re seeking experienced guidance to bring a defamation case, have it dismissed under the anti-SLAPP regime (or protect it there too), contact us. Connect with us online or call us directly at (416) 225 5289 x389.
[1] Courts of Justice Act, RSO 1990, c C.43, s 137.1.
[2] Ibid, s 137.1(3).
[3] Ibid, s 137.1(4).
[4] Benchwood Builders, Inc. v Prescott, 2025 ONCA 171 at para 14.
[5] Veneruzzo v Storey, 2018 ONCA 688 at para 40; Benchwood Builders, Inc. v Prescott, 2025 ONCA 238 at para 4.