In my post “Anti-SLAPP Motions Not Available in Small Claims Court” I reported on the two recent cases that made it clear that Deputy Judges and Associate Judges could not hear anti-SLAPP motions in Small Claims Court. Although I thought these lines of cases made it clear that such motions couldn’t be heard in Small Claims Court regardless of the status of the judge presiding over the motion, this latest decision promotes even further clarity.
In brief, the type of judge assigned to an anti-SLAPP motion in Small Claims Court is immaterial: the only relief the parties can seek, if they wish to continue with an anti-SLAPP motion, is to bring, and succeed on, a motion to transfer the claim to the plenary court.
Small Claims Court proceedings are rather unique because they can be presided over by Deputy Judges, Administrative Judges, and by Superior Court Judges. In this instance, the parties were aware that the prior two cases (outlined in my prior post) specifically ruled out anti-SLAPP motions when heard by Deputy Judges or by Administrative Judges, so they specifically asked for a case conference before a Superior Court Judge for the purpose of asking the Judge to schedule the Small Claims Court anti-SLAPP motion before a Superior Court Judge. The thought was that a Judge of the Ontario Superior Court of Justice would certainly have authority to rule on such a motion.
The presiding Superior Court Judge, however, disagreed and held that anti-SLAPP motions are not available to defendants in a Small Claims Court defamation claim, regardless of the type of judge assigned to hear the motion.
As such, the parties were denied the hearing on the anti-SLAPP motion, but the Judge did allow the parties to regroup and bring a motion to transfer the claim to the plenary court (Ontario Superior Court of Justice). It will be interesting to see what arguments are put forward on the motion to transfer the matter out of the Small Claims Court, and the resulting outcome. Stay tuned.
Feldman v. Macdonald, 2022 ONSC 1653
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1653/2022onsc1653.html