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Introduction
Does an online review by an upset customer relate to a matter of public interest? How much harm arising from negative online reviews is sufficient to outweigh the public interest in protecting freedom of expression? These issues are central to the anti-SLAPP analysis in Benchwood Builders, Inc v Prescott, 2025 ONCA 171 [Benchwood], leave to appeal granted [41794].
Facts
The homeowners hired a contractor, Benchwood Builders Inc. (“Benchwood”), to carry out renovations on their home. The work did not go as planned, ending with a lien action arising from unpaid bills (Benchwood, para 1).
Several months later, the homeowners discovered that the contractor had posted pictures of their renovated home online to promote its services. This led to the homeowners repeatedly expressing their frustration online, over a three-month duration. They posted negative comments about the contractor and its owner while also responding to other users’ comments on the contractor’s posts (Benchwood, para 3).
The online comments included claims that the contractor and its owner “misrepresent themselves to the consumer,” referring to the contractor and subcontractors’ work as “dishonest,” claiming that the contractor was “trespassing,” and that the owner was “a miserable con artist” and “dirtbag,” accusing the owner of threating women and making false assault charges against women (Benchwood, paras 4-5).
In response, the contractor and its owner commenced a defamation action against the homeowners alleging over $1.5 million in damages and an injunction to block the homeowners from publishing comments about the firm or its owner. The homeowners, in turn, brought an anti-SLAPP motion to have the defamation action against them dismissed (Applicant’s Memorandum of Argument, para 11).
Background
Strategic Lawsuits Against Public Participation (“SLAPPs”) or “Gag Proceedings” are often initiated by powerful parties against individuals or organizations to deter them from participating in matters of public interest. The strategy of using fear of litigation to silence freedom of expression has led to the enactment of the anti-SLAPP mechanism which allows a silenced defendant to move to dismiss the action against them.
The legislative scheme governing anti-SLAPP motions is titled “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)” and is set out in sections 137.1 to 137.5 of the Courts of Justice Act, RSO 1990, c C.43 [CJA].
In a defamation action, subsection 137.1 allows the defendants to the action to bring an anti-SLAPP motion at any stage of the proceeding to seek dismissal of the defamation action against them. The issues to be decided at the anti-SLAPP motion are set out in subsections 137.1(3) and (4) and numbered below for ease of reference in this article.
At the threshold stage of the anti-SLAPP framework, the defendant to the defamation action (the “moving party” to the anti-SLAPP motion) must establish (CJA, section 137.1(3)):
- They “expressed” themselves
- Their expression “relates to a matter of public interest,” and
- The defamation action against them “arises from” their expression
If the moving party succeeds at the threshold stage, the burden then shifts to the plaintiff to the defamation action (the “responding party” to the anti-SLAPP motion) to establish (CJA, section 137.1(4)):
- There are “grounds to believe” the defamation action has “substantial merit,”
- There are “grounds to believe” the defendants to the defamation action “have no valid defence” in the defamation action, and
- The harm arising from the expression is “sufficiently serious” that the public interest in permitting the defamation action to continue outweighs the public interest in protecting the expression.
If the responding party succeeds, the motion judge allows the defamation action to proceed. Otherwise, the anti-SLAPP motion is successful, and the motion judge dismisses the defamation action accordingly.
Judicial History
The motion judge, Walters J. of the Ontario Superior Court of Justice, granted the anti-SLAPP motion and dismissed the underlying defamation action (reasons unreported). However, the Court of Appeal for Ontario ("ONCA") unanimously allowed the appeal, finding that the motion judge erred in three ways: 1) the motion judge erred in finding that online reviews are matters of public interest, 2) the motion judge misapplied the "substantial merit" issue in the anti-SLAPP framework, and 3) the motion judge erred at the weighing stage of the anti-SLAPP framework (Benchwood, paras 2 and 12).
The issue of online reviews as “matters of public interest”
Under the second step of the anti-SLAPP framework, the motion judge had found that the homeowners’ statements related to a matter of public interest because “[o]nline reviews serve an important function by offering the public information about consumer experiences dealing with professionals or businesses” (Benchwood, para 33). However, Lauwers J.A. of the ONCA held that although it “seems to be a consensus view of Superior Court judges” that online reviews are matters of public interest, “it is not the view of this court” (Benchwood, para 33).
Lauwers J.A. listed examples of online activities or reviews that were previously found to relate to matters of public interest, namely, international conflict, municipal land use matters, climate change, animal welfare and anti-Black racism. He highlighted that expressions relating to these matters engage a “broader societal concern” that is not found in this case (Benchwood, para 42). The dispute between the homeowners and contractor sits in contrast with these examples, especially since the ONCA had previously written that “the resolution of purely private disputes between more or less equals, disputes that have no immediate bearing on the rights or obligations of others, can seldom be a matter of public interest” (Benchwood, para 67).
The issue of “no valid defence” in defamation actions
While the motion judge found that the contractor’s defamation action had substantial merit, she dismissed the action because she “was unable to find that the homeowners’ defence of justification had no real prospect of success” (Benchwood, para 9). The ONCA held that this finding, on its own, should not have determined the outcome of the anti-SLAPP motion (Benchwood, para 48).
Additionally, Lauwers J.A. rejected a binary approach to determining whether there are grounds to believe that the defendants have no valid defence to the defamation action, emphasizing that the complex defences arising in defamation actions require a more nuanced approach. Instead, he held that in a defamation action, “the responding party need only show grounds to believe that the defences do not tend to weigh more in the moving party’s favour" (Benchwood, paras 51 and 54).
The issue of weighing freedom of expression against protection of reputation
Lastly, the motion judge found that the contractor had failed to establish that any harm suffered as a result of the statements was serious, because there were “other factors that may have had an effect on” the contractor’s reputation (Benchwood, para 10). For example, she found that the non-renewal of the contractor’s membership in the Niagara Home Builders’ Association occurred before the homeowners posted the statements (Benchwood, para 66). This finding reaffirmed that the underlying defamation action should be dismissed. However, the ONCA disagreed with this characterization of the analysis, finding that the motion judge “carried out the task of weighing harm against the public interest only perfunctorily" (Benchwood, para 12).
The weighing exercise at the anti-SLAPP motion involves balancing freedom of expression with protection of reputation to determine whether the underlying defamation action must be dismissed. Lauwers J.A. clarified that the focus at this stage is to determine “what is really going on” in the case by considering the quality of the expression, including the motivation behind it, the medium through which it was expressed, and its subject matter (Benchwood, para 63). He added that the interest in protecting the expression is reduced where the expressions amount to personal attacks, are exaggerated, are inaccurate or contain deliberate misrepresentations (Benchwood, para 64).
Lauwers J.A. refused to accept that the only motive of the homeowners was to warn other consumers, as their personal attacks on the contractor and its owner went “well beyond a complaint about Benchwood walking off the job and doing some of its work poorly” (Benchwood, para 70). As a result, the ONCA determined that the motion judge should have weighed the anti-SLAPP framework in favour of protecting reputation.
Issues on Appeal to the SCC
The issues on appeal can be summarized as follows (Applicant’s Memorandum of Argument, para 19):
- Does consumer expression amount to a matter relating to “public interest” within the meaning of section 137.1(3) of the CJA?
- Did the ONCA err in its characterization of the responding party’s burden in the anti-SLAPP analysis?
Analysis
The homeowners argue that they are victims of the “increasing number of consumers being sued for negative comments and reviews” and that this dispute reflects the “libel chill” in the online review industry (Applicant’s Memorandum of Argument, para 21). The contractor, however, argues that this action does not engage matters of public interest, otherwise, individuals will be allowed to make derogatory expressions against individuals and businesses in the name of online reviews, regardless of the substance of those expressions, to escape defamation actions (Respondent’s Memorandum of Argument, para 27).
This appeal brings to the forefront the tension between freedom of expression on the one hand, and protecting the reputation of individuals and businesses, on the other. However, this appeal does not require the Court to choose between the two interests, as rejecting the anti-SLAPP motion would still allow the homeowners to defend themselves against the defamation action through the ordinary course of litigation. In other words, the issue in this appeal is limited to whether the homeowners can avoid the defamation action at the outset.
Although an anti-SLAPP motion is, theoretically, intended to be a “pretrial screening mechanism designed to weed out SLAPPs,” (Hansman v Neufeld, 2023 SCC 14, para 49) the anti-SLAPP motion has been “misused as a costly and time-consuming” alternative to trial on the merits of a defamation action (Benchwood, para 57). Granting the anti-SLAPP motion in this case would act as an obstacle to a possibly genuine defamation action at the outset while also contributing to the proliferation of anti-SLAPP motions as a means to, ironically, slap back on defamation actions.
For these reasons, I argue that successful anti-SLAPP motions should be reserved for cases where there are clear indicia of meritless litigation strategies to silence public participation in matters of public interest. The bar at the anti-SLAPP stage should remain high.
Conclusion
The rise of social media has created an accessible platform to promote, but also to criticize, individuals and businesses. This appeal offers a timely opportunity for the Supreme Court of Canada to clarify whether the anti-SLAPP framework protects frustrated customers from defamation claims.
This article was edited by David Lia.