In its recent decision in Amorosi v. Barker, 2020 ONCA 144 (“Amorosi”), the Court of Appeal for Ontario clarified how the 60 day time limit for the hearing of a motion to dismiss strategic lawsuits against public participation (an “Anti-SLAPP motion”) will be applied. In a ruling that interprets the wording of the Act to accord with the practicalities of civil litigation, the Court held that anti-SLAPP motions must be “commenced”, though not actually fully “heard”, within the 60 day limit.
Introduced in 2015, the anti-SLAPP regime set out in section 137.1 of the Courts of Justice Act provides a preliminary, pretrial procedure for a defendant to seek dismissal of a claim where the litigation arises out of a defendant’s expression on a matter of public interest. Section 137.2(2) provides that a “motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court". In Amorosi, the hearing was underway, but the defendant was granted an adjournment to cross-examine the plaintiff on an affidavit. The plaintiff appealed, arguing that the motion judge’s decision to grant the adjournment was offside section 137.2(2).
The Court recognized that the “practicalities of litigation in the province” required a different interpretation. It held that the timeline in s. 137.2(2) simply meant that the motion must be “commenced” or “returnable” within 60 days of the filing of the motion – the hearing did not need to be concluded in that time. In adopting this interpretation, the Court held that “[c]learly, the legislation intended that these motions should be heard expeditiously”, but that “[e]qually clearly, the legislature did not intend to impose an arbitrary and unbending limit on the time needed to hear and determine the motion.”
Although not directly at issue in Amorosi, it is worth noting that the 60 day limit in section 137.2(2) is triggered by the “filing” of the motion. Given that Ontario courts cannot guarantee a hearing date within 60 days after a notice of motion is filed, issues of the timing of formal “filing” of an anti-SLAPP motion (as opposed to service and scheduling) are best addressed with counsel and the court at the time of scheduling (in Toronto, via the Civil Scheduling Unit/Civil Practice Court).
