November 22, 2019
Subway v CBC 2019 ONSC 6758

CBC and its expert, Trent University, were sued for $210 million by Subway over the “Chicken Challenge”, a Marketplace program and online story, plus some related tweets.

Justice Ed Morgan found there is a public interest, and although Subway’s claim against CBC has substantial merit under s.137.1, that CBC’s defence of responsible communication would succeed, and that in the balancing stage, the public interest outweighs any harm said to have been suffered.

Morgan J. states:

CBC’s perspective on Subway’s claim against it accords with the underlying objective of the anti-SLAPP policy enacted in s. 137.1 of the CJA. The section itself begins with a statement of its own the purposes:
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Under the circumstances, I find that these public purposes are fulfilled by dismissing the action as against CBC. They outweigh any potential impact that this may have on the private interest of Subway.

Subway’s claim against Trent University was based on two causes of action: defamation and negligence.

Trent University was unsuccessful in its application under s. 137.1:

…the terms of s. 137.1 of the CJA are an awkward fit for claims which are framed other than in defamation-related torts such as libel and slander. The legislative purpose is to protect free and democratic expression, not conduct at large, and the statute is correspondingly designed to address expressive torts, not wrongdoing at large.

As moving party, Trent has failed to satisfy the court that Subway’s negligence claim against it “arises from an expression made by the person that relates to a matter of public interest” as required by s. 137.1(3). Trent’s motion has therefore not crossed the threshold for an anti-SLAPP motion, and it can be dismissed on this ground alone.