lawsuit to address the merits of the claim and demonstrate that the
public interest in vindicating that claim outweighs the public
interest in protecting the defendant’s freedom of expression.
 Significantly, the Act does not, except in a minor way, alter
the substantive law as it relates to claims based on expressions on
matters of public interest.3 There are no new defences created for
those who speak out on matters of public interest. The law of defamation remains largely unchanged. Similarly, nothing in the Act
affects the substantive law applicable to 170 Ontario’s breach of
 Nor does s. 137.1 invoke the abuse of process model
favoured in the now repealed British Columbia anti-SLAPP legislation.4 Aside from the discretionary damages provision in
s. 137.1(9), s. 137.1 does not fix on the plaintiff’s purpose or motive
in bringing the claim as the determining factor, but instead assesses the potential merits of the claim and the effects of permitting
the claim to proceed on competing components of the public interest. The emphasis on the litigation’s effect over its purpose is said
to provide a more streamlined and accurate assessment of the legitimacy of the claims: Anti-SLAPP Advisory Panel, at paras. 32-35.
That said, the purpose of the lawsuit can be an important consideration on a s. 137.1 motion. If the motion judge determines that
the plaintiff’s actual purpose in bringing in the lawsuit was to
“gag” the target of the lawsuit on a matter of public interest, it
seems highly unlikely that the lawsuit would clear the public
interest hurdle in s. 137.1(4)(b).
 Instead of creating new defences, removing or modifying
existing causes of action, or providing for a more vigorous abuse
of process remedy, s. 137.1 seeks to achieve the purposes stated in
s. 137.1(1) by, first, distinguishing between claims that arise from
an expression that relates to a matter of public interest and other
claims; and second, by providing for the early and inexpensive
dismissal of claims based on expressions relating to matters of
public interest, either because those claims lack sufficient merit
to proceed, or because the public interest is, on balance,
3 Section 4 of the Act made a modest change to the qualified privilege defence
found in s. 25 of the Libel and Slander Act, R.S.O. 1990, c. L.12.
4 See Protection of Public Participation Act, S.B.C. 2001, c. 19, s. 5(1), repealed by
the Miscellaneous Statutes Amendment Act, 2001, S.B.C. 2001, c. 32, s. 28. See,
also, Uniform Law Conference of Canada, Uniform Prevention of Abuse of Process Act, 2010. The Attorney General of British Columbia re-introduced anti-SLAPP legislation in May of 2018. The proposed legislation appears to be more
in line with Ontario’s approach: see Bill 32, Protection of Public Participation
Act, 3rd Sess., 41st Parl., British Columbia, 2018 (first reading May 15, 2018).