Court of Appeal confirms that expression merely referring to matter of public interest does not meet threshold test of “relating to public interest” required to engage Anti-SLAPP provision s. 137.1 of the Courts of Justice Act. - Dent-X Canada v. Houde, 2022 ONCA 414 (CanLII)
The statement at issue in this appeal was a single Facebook post created by one of the individual appellants, who was unhappy with the delay in delivery of face masks they had ordered from the respondent. The post in question referred to a potential class action against the respondent.
The respondent had sued the appellants for defamation. In response, the appellants invoked anti-SLAPP measure s. 137.1 of the Courts of Justice Act to stay the defamation claim. The motions judge dismissed the appellant’s motion on the basis that the expression at issue did not relate to a matter of public interest, as required by s. 137.1(3).
The appellants argued that the Facebook post was in part at least for the purpose of commencing a potential class action, although no class action was ever commenced. Relying on the decision of Das v. George Weston Limited, 2017 ONSC 5583, at para. 128, aff’d 2018 ONCA 1053, leave to appeal refused,  S.C.C.A. No. 69, the appellants submitted that class actions inherently relate to matters of public interest. The Court of Appeal rejected this argument. The motion judge was clearly alive to the fact that the title and first sentence of the statement at issue referred to a potential class action, but he nevertheless concluded that the underlying dispute was purely a private one. If the reason for the impugned communication was, as the appellants argued, to find other clients of the respondent for the purpose of a class action, one might have expected the content and tone of its communication to have been vastly different (paras 7-8).
The Court of Appeal held that the appellants’ submission confused an expression referring to a matter of public interest with an expression relating to a matter of public interest (para 10, original emphasis). The concept of whether a particular expression relates to a matter of public interest must be broadly interpreted, and assessed by looking at the expression as a whole. Merely referring to something of public interest is not the same as relating to a matter of public interest (para 10).
For these reasons, the appeal was dismissed.