What is an anti-SLAPP motion and how does it work in Ontario?
An anti-SLAPP motion is a legal tool designed to get rid of lawsuits that target free expression on matters of public interest. Under section 137.1 of the Courts of Justice Act, a defendant can ask a judge to dismiss a claim early if it arises from something they said or published on a public interest topic. The idea is to protect whistleblowers, journalists, and ordinary people from being silenced by expensive litigation. However, as a recent Ontario decision makes clear, this protection is not automatic — courts put the claim through a careful two-stage test before deciding whether to dismiss it.
In MacDonald v. 10583308 Canada Inc., 2026 ONSC 3342 (CanLII), the Superior Court of Justice dismissed an anti-SLAPP motion and allowed a defamation lawsuit to proceed, awarding costs against the party that brought the motion. The decision is a useful roadmap for anyone involved in a dispute where reputation, public statements, and procurement allegations intersect. You can read the full decision at CanLII.
Does a statement about public procurement qualify as a matter of public interest?
Yes — courts take a broad and generous approach when deciding whether an expression touches on a matter of public interest. The first stage of the anti-SLAPP analysis simply asks whether the lawsuit arises from an expression on a public interest topic. In this case, the expressions at issue included a report, media statements, and social media posts relating to public procurement allegations. The court found that public procurement — how government contracts are awarded and managed — clearly qualifies as a matter of public interest, and that there was a sufficient connection between the lawsuit and those expressions. The threshold at this first stage is deliberately low, and the court confirmed that the broad and liberal approach from the Supreme Court of Canada’s Pointes Protection decision applies.
What does a plaintiff need to prove to survive an anti-SLAPP motion?
Once the threshold is met, the burden shifts and the plaintiff must satisfy a two-part test under section 137.1(4). First, the plaintiff must show that the claim has substantial merit and that there is no valid defence. Second, the plaintiff must demonstrate that the harm they suffered is serious enough to outweigh the public interest in protecting the expression. Both parts must be satisfied, or the claim is dismissed.
On the merits side, the court applied the framework from Grant v. Torstar and found that the core elements of a defamation claim — that the person was identifiable, that the words carried a defamatory meaning, and that the words were published — were all established. The court then went through the available defences one by one: truth, absolute privilege, qualified privilege, responsible communication, and fair comment. Applying the guidance from Platnick and Torstar, the court found grounds to believe that none of these defences would succeed, meaning the plaintiff cleared the first hurdle.
How do courts weigh harm to reputation against the value of free expression?
Courts look at both sides of the scale. On the harm side, they consider the seriousness of the reputational damage, whether formal investigations were triggered, and how widely the statements spread through republication. On the expression side, they assess the quality and motivation behind what was said — statements that are reckless or unverified carry less weight in the public interest balance.
In this case, the court found that the harm to the affected parties was real and significant: reputational damage, investigations, and widespread republication all pointed to serious consequences. On the other side of the scale, the court found that the expressions had limited value because they appeared to be reckless and unverified. The harm outweighed the protection the expressions deserved, so the lawsuit was permitted to continue.
Who pays costs when an anti-SLAPP motion fails?
When an anti-SLAPP motion is unsuccessful, costs are generally awarded to the responding party under section 137.1(8) of the Courts of Justice Act. Courts have discretion in how they set those costs, and the recklessness of the original statements can be a relevant factor even in a public interest context. In this decision, the court reviewed authorities including Park Lawn and Buttar, fixed a lump-sum costs award, and ordered the party that brought the failed motion to pay. This is an important reminder that anti-SLAPP motions carry real financial risk if they are not well-founded.
Practical takeaways for plaintiffs in defamation cases
- Document your harm early. Courts look at reputational damage, triggered investigations, and republication. Keep records of every consequence the statements caused.
- Expect an anti-SLAPP motion if the statements touch on public issues. Public procurement, government contracts, and similar topics almost always clear the first-stage threshold, so be prepared to argue merits and harm from the start.
- Defences matter. A plaintiff does not just need to show the statement was defamatory — they must also show that no standard defence (truth, privilege, responsible communication, fair comment) is likely to succeed.
- Recklessness in the original statement can help you. If the defendant published without verifying facts, courts may assign that expression lower public interest value, tipping the balance in your favour.
- Costs run both ways. A failed anti-SLAPP motion can result in a costs award against the moving party — but a plaintiff who overreaches also faces risk, so get experienced legal advice before proceeding.
If you are dealing with a defamation dispute or a statement that has damaged your reputation, our Ontario litigation lawyers can help you assess your options and build a strategy that accounts for the anti-SLAPP framework from the outset.
For clients in the Greater Toronto and Hamilton Area, our teams in Burlington and Hamilton regularly handle defamation and civil litigation matters and can advise you on the full range of remedies available under Ontario law.
UL Lawyers offers a free initial consultation from our Burlington office and serves clients across Ontario. If you have questions about a defamation claim, an anti-SLAPP motion, or any civil litigation matter, reach out to our civil litigation team to discuss your situation.
This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.
FAQ
Frequently asked questions
An anti-SLAPP motion under section 137.1 of the Courts of Justice Act is specifically designed to dismiss lawsuits that target expression on matters of public interest. Unlike a regular motion to dismiss, it reverses part of the burden of proof and requires the plaintiff to show both that the claim has substantial merit and that the harm outweighs the public interest value of the expression.
Yes. If the plaintiff can show that the claim has substantial merit, that no valid defence applies, and that the harm suffered is serious enough to outweigh the public interest in protecting the expression, the court will dismiss the motion and allow the lawsuit to continue. This case is an example of exactly that outcome.
Anti-SLAPP motions are meant to be resolved relatively early in the litigation, before the case consumes significant time and resources. In practice, the timeline depends on the complexity of the case, court scheduling, and the volume of evidence — but they are typically heard within several months of being filed.