1704604 Ontario Limited v. Pointes Protection Association, et al.

(Ontario) (Civil) (By Leave)


Legislation - Interpretation - Anti-SLAPP legislation - Expression on matters of public interest - Dismissal of proceedings - Breach of contract - Regarding the threshold requirement, what constituent elements should the judge consider in determining whether a proceeding “arises from” an expression - Regarding the merits-based burden, what must the responding party show to establish that the proceeding has “substantial merit” and the moving party has “no valid defence” under s. 137.1(4)(b) of the Courts of Justice Act - Regarding the public interest hurdle, what must the responding party show to establish the harm suffered or is likely to be suffered is sufficiently serious that public interest in the proceeding continuing outweighs the public interest in the expression under s. 137.1(4)(b) - Applying the modern principles of statutory interpretation, whether s. 137.1 applies in this case - Protection of Public Participation Act, 2015, S.O. 2015, c. 23 - Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 137.1 to 137.5.


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In November 2015, Bill 52, the Protection of Public Participation Act, 2015, S.O. 2015, c. 23 (“PPPA”) came into force. The PPPA amended various statutes including the Courts of Justice Act, R.S.O. 1990, c. C. 43 by introducing ss. 137.1 to 137.5. Those sections created a new pretrial procedure allowing defendants to move expeditiously and early in the litigation for an order dismissing claims arising out of expressions by defendants on matters of public interest.

The appellant, 1704604 Ontario Ltd (“170 Ontario”) wanted to develop a subdivision in Sault Ste. Marie. The respondent, Pointes Protection Association (“PPA”) is a not-for-profit corporation incorporated to provide a coordinated response on behalf of some area residents to 170 Ontario’s development proposal. 170 Ontario’s first application for approval to the Conservation Authority was denied, but a second application passed the necessary resolutions. PPA brought an application for judicial review of the decision and sought a declaration that the Conservation Authorities’ resolutions were illegal and beyond the scope of its jurisdiction. While the judicial review application was pending, 170 Ontario sought the approval of the City Council as the proposed development required an amendment to the City’s official plan. City Council turned down 170 Ontario’s application. 170 Ontario appealed this decision to the Ontario Municipal Board (“OMB”) and the PPA was granted standing in the proceedings.

While both the application for judicial review and the appeal were pending, the parties settled the judicial review proceeding. In accordance with the terms of the agreement, the judicial review application was dismissed on consent without costs and the PPA and the individual members of the executive agreed they would take no further court proceedings seeking the same or similar relief that had been sought in their judicial review application. The PPA also promised that in any proceeding before the OMB, or in any other subsequent legal proceeding, PPA would not advance the position that the Conservation Authorities’ resolutions were illegal, invalid, or contrary to the relevant environmental legislation.

170 Ontario’s appeal to the OMB from the City Council’s refusal to amend the official plan proceeded. In the course of the OMB hearing, PPA called its president who testified that, in his opinion, the proposed development would result in significant loss of coastal wetlands, thereby causing substantial environmental damage. The OMB dismissed 170 Ontario’s appeal.

170 Ontario sued PPA for breach of contract asserting that PPA breached the terms of the agreement when the president gave evidence at the OMB concerning the proposed development’s negative impact on the wetlands. PPA did not file a defence, but responded with a motion under s. 137.1 of the Courts of Justice Act for an order dismissing 170 Ontario’s claim. The motion judge dismissed PPA’s motion and ordered that the action proceed. The Court of Appeal allowed PPA’s appeal. The order below was set aside and the action 170 Ontario’s action was dismissed.

Lower Court Rulings

May 9, 2016
Ontario Superior Court of Justice

26890/15, 2016 ONSC 2884
Respondents’ motion to dismiss action under s. 137.1 of the Courts of Justice Act dismissed
August 30, 2018
Court of Appeal for Ontario

2018 ONCA 685, C62231
Appeal allowed; order below set aside; action dismissed