Defending Defamation: Strategic Use of Anti-SLAPP Motions
Guest Columnist - Gabriela Nagy
Counsel defending defamation lawsuits alleging harmful speech should consider whether an anti-SLAPP motion (SLAPP is Strategic Lawsuits Against Public Participation) under section 137.1 of the Courts of Justice Act (“CJA”) is an appropriate remedy to dismiss the proceeding. Section 137.1 of the CJA is a mechanism for the prevention of proceedings that limit freedom of expression on matters of public interest.
At its core, the anti-SLAPP motion is a balancing exercise between a defendant’s freedom to express views on matters of public interest and a plaintiff’s reputational harm caused by the impugned expression. Defence counsel must weigh whether the defamation lawsuit brought by the plaintiff against their client is the plaintiff’s “honest” attempt to vindicate their reputation, or a strategic tool by a well-resourced plaintiff to silence the defendant critic on a matter that should in fact be brought into the public light. If it is the latter, then an anti-SLAPP motion may be appropriate.
The Centre for Free Expression defines SLAPP as “lawsuits brought by individuals, corporations, or others to intimidate and silence critics by forcing them into legal battles that would be extremely costly and time-consuming.”[1] The anti-SLAPP law, enshrined in the Protection of Public Participation Act, 2015, S.O. 2015[2], offers protection through section 137.1 of the CJA, by allowing persons and entities to move to dismiss a defamation lawsuit if they are able to prove that its intended purpose is none other than a strategic tactical move.
Legislation expressly outlines the purposes of section 137.1 of the CJA, which are to (1) encourage individuals to express themselves on matters of public interest; (2) promote broad participation in debates on matters of public interest; (3) discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and (4) reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.[3]
In August 2025, the Ontario Court of Appeal released its decision in Universalcare Canada Inc. v. Gusciglio[4], offering guidance on the test to meet and evidence required to succeed on an anti-SLAPP motion.
Background
Ms. Gusciglio was dissatisfied with the level of care received by her elderly mother at Villa Colombo (“VC”), a long-term care home owned and operated by Universalcare Canada Inc. in Vaughan, Ontario. A bitter battle developed between Ms. Gusciglio and VC’s CEO, Mr. Gulizia, which resulted in complaints of elder abuse to the Ministry of Health and Long-Term Care. Meantime, Ms. Gusciglio posted about 100 tweets on various twitter accounts, named ‘Villa Colombo Abuses Seniors’ (10,000 followers); ‘Vaughan Elder Abuse LTC’ (61,000) and ‘Happy Days’ (44,000 followers). Some of the tweets described Mr. Gulizia as a “disgusting pig”, who ran a “death squad”, deserved to be in jail; employees were “devils” and would “kill” the elder residents in retaliation if families dared to criticize VC’s staff.
Ultimately, VC, Mr. Gulizia and Universalcare (collectively “VC”) commenced a defamation lawsuit against Ms. Gusciglio, who at first denied the tweets, but then, on the cusp of examinations for discovery, moved to dismiss VC’s defamation suit as a SLAPP action, pursuant to s. 137.1 of the CJA. VC denied the action was SLAPP. It argued that most of Ms. Gusciglio’s tweets were personal attacks directed at the character and reputation of VC and Mr. Gulizia, and only a few of her tweets could have public interest value related to elder abuse in long-term care homes. VC further argued the driving force behind Ms. Gusciglio’s “personal invectives” was an acrimonious family feud between Ms. Gusciglio and her siblings, the latter who had power of attorney over their mother’s care.[5] Malice and dissatisfaction with her siblings’ decisions is what motivated Ms. Gusciglio’s harmful tweets and her animus was directed at VC’s staff caught in the middle of the family feud.
Application of the Two-Part Test by the Motion Judge
The anti-SLAPP motion requires a judge to apply a two-part test under section 137.1 of the CJA when considering whether to dismiss a defamation action.
First, the defendant against whom the defamation action is brought must prove the expressions made by the defendant relate to a matter of public interest. “Expressions” are defined as “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity”.[6]
If the test is met, then the onus moves to the plaintiff, and engages the second part of the test which requires a judge not to dismiss the action if the plaintiff can prove the defamation action has (1) substantial merit; (2) the defendant has no valid defence; and (3) the harm suffered by the plaintiff is sufficiently serious that allowing the action to continue outweighs the public interest in protecting the expression.[7]
The relevant portions of s. 137.1 of the CJA state:
In Universalcare, the motion judge by-passed the analysis of whether VC’s action had any merit and Ms. Gusciglio had any valid defence to VC’s lawsuit. Instead, the motion judge focused solely on whether VC suffered any harm. The evidence considered was rather narrow, focused on VC’s staff refusing to work in the facility where Ms. Gusciglio’s elderly mother resided; Ms. Gusciglio’s harassing conduct led to the resignation of VC’s Director of Care; and friends and family would often question Mr. Gulizia about the tweets.
The motion judge dismissed VC’s defamation action, with costs awarded to Ms. Gusciglio in the amount of $100,000. VC appealed the decision successfully on grounds that the motion judge did not properly apply the two part-test on the motion.
At its core, the anti-SLAPP motion is a balancing exercise between a defendant’s freedom to express views on matters of public interest and a plaintiff’s reputational harm caused by the impugned expression. Defence counsel must weigh whether the defamation lawsuit brought by the plaintiff against their client is the plaintiff’s “honest” attempt to vindicate their reputation, or a strategic tool by a well-resourced plaintiff to silence the defendant critic on a matter that should in fact be brought into the public light. If it is the latter, then an anti-SLAPP motion may be appropriate.
The Centre for Free Expression defines SLAPP as “lawsuits brought by individuals, corporations, or others to intimidate and silence critics by forcing them into legal battles that would be extremely costly and time-consuming.”[1] The anti-SLAPP law, enshrined in the Protection of Public Participation Act, 2015, S.O. 2015[2], offers protection through section 137.1 of the CJA, by allowing persons and entities to move to dismiss a defamation lawsuit if they are able to prove that its intended purpose is none other than a strategic tactical move.
Legislation expressly outlines the purposes of section 137.1 of the CJA, which are to (1) encourage individuals to express themselves on matters of public interest; (2) promote broad participation in debates on matters of public interest; (3) discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and (4) reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.[3]
In August 2025, the Ontario Court of Appeal released its decision in Universalcare Canada Inc. v. Gusciglio[4], offering guidance on the test to meet and evidence required to succeed on an anti-SLAPP motion.
Background
Ms. Gusciglio was dissatisfied with the level of care received by her elderly mother at Villa Colombo (“VC”), a long-term care home owned and operated by Universalcare Canada Inc. in Vaughan, Ontario. A bitter battle developed between Ms. Gusciglio and VC’s CEO, Mr. Gulizia, which resulted in complaints of elder abuse to the Ministry of Health and Long-Term Care. Meantime, Ms. Gusciglio posted about 100 tweets on various twitter accounts, named ‘Villa Colombo Abuses Seniors’ (10,000 followers); ‘Vaughan Elder Abuse LTC’ (61,000) and ‘Happy Days’ (44,000 followers). Some of the tweets described Mr. Gulizia as a “disgusting pig”, who ran a “death squad”, deserved to be in jail; employees were “devils” and would “kill” the elder residents in retaliation if families dared to criticize VC’s staff.
Ultimately, VC, Mr. Gulizia and Universalcare (collectively “VC”) commenced a defamation lawsuit against Ms. Gusciglio, who at first denied the tweets, but then, on the cusp of examinations for discovery, moved to dismiss VC’s defamation suit as a SLAPP action, pursuant to s. 137.1 of the CJA. VC denied the action was SLAPP. It argued that most of Ms. Gusciglio’s tweets were personal attacks directed at the character and reputation of VC and Mr. Gulizia, and only a few of her tweets could have public interest value related to elder abuse in long-term care homes. VC further argued the driving force behind Ms. Gusciglio’s “personal invectives” was an acrimonious family feud between Ms. Gusciglio and her siblings, the latter who had power of attorney over their mother’s care.[5] Malice and dissatisfaction with her siblings’ decisions is what motivated Ms. Gusciglio’s harmful tweets and her animus was directed at VC’s staff caught in the middle of the family feud.
Application of the Two-Part Test by the Motion Judge
The anti-SLAPP motion requires a judge to apply a two-part test under section 137.1 of the CJA when considering whether to dismiss a defamation action.
First, the defendant against whom the defamation action is brought must prove the expressions made by the defendant relate to a matter of public interest. “Expressions” are defined as “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity”.[6]
If the test is met, then the onus moves to the plaintiff, and engages the second part of the test which requires a judge not to dismiss the action if the plaintiff can prove the defamation action has (1) substantial merit; (2) the defendant has no valid defence; and (3) the harm suffered by the plaintiff is sufficiently serious that allowing the action to continue outweighs the public interest in protecting the expression.[7]
The relevant portions of s. 137.1 of the CJA state:
Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
No dismissal
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
No dismissal
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
In Universalcare, the motion judge by-passed the analysis of whether VC’s action had any merit and Ms. Gusciglio had any valid defence to VC’s lawsuit. Instead, the motion judge focused solely on whether VC suffered any harm. The evidence considered was rather narrow, focused on VC’s staff refusing to work in the facility where Ms. Gusciglio’s elderly mother resided; Ms. Gusciglio’s harassing conduct led to the resignation of VC’s Director of Care; and friends and family would often question Mr. Gulizia about the tweets.
The motion judge concluded that VC’s evidence of the harm it suffered was rather weak and insufficient. The judge’s comments centered on Ms. Gusciglio’s conduct when visiting the nursing home, as opposed to the impact of her tweets. The judge stated that a reasonable inference could be drawn that VC’s lawsuit was intended to “address [Ms. Gusciglio’s] behavior at home, teach her a lesson, stand behind staff, and to deter others from behaving as she did”.[8] The intended effect of the lawsuit was to silence Ms. Gusciglio on a matter of public interest. As such, VC failed to persuade “that they likely have suffered any harm, or will suffer harm from Ms. Gusciglio’s tweets, let alone serious harm sufficient to outweigh the deleterious effect of stifling her expression on a matter of public interest.”[9]
The motion judge dismissed VC’s defamation action, with costs awarded to Ms. Gusciglio in the amount of $100,000. VC appealed the decision successfully on grounds that the motion judge did not properly apply the two part-test on the motion.
Impugned Expressions Must Relate to a Matter of Public Interest
The Court of Appeal reinforced the two-part test at an anti-SLAPP motion which it characterized as a balancing exercise between (1) whether the impugned expressions relate to a matter of public interest and (2) whether a defamation action has any merit, and the plaintiff had suffered any harm.
VC tried to persuade the Court of Appeal that Mr. Gusciglio’s tweets were “personal invective” and of “low value”. However, the Court rejected the argument siding with the motion judge’s interpretation that while some of the expressions were in fact “low value” personal attacks against VC, the overall object of the defamation lawsuit was alleged elder abuse in long-term care homes, which was “uncontroversially a matter of public interest”.[10] As such, the nature of the expressions brought the defamation action within the ambit of section 137.1(3) of the CJA, satisfying the first part of the test.
Defamation Proceeding Not Dismissed if Action Has Merit and Serious Harm Is Suffered
The second part of the test is a conjunctive application of s. 137.1(4)(a) and s. 137.1(4)(b). Section 137.1(4)(a) requires the plaintiff to establish grounds to believe (1) the proceeding has substantial merit and (b) the defendant has no valid defence to the proceeding. Section 137.1(4)(b) requires proof of harm by the plaintiff that outweighs the protection of the expression in the name of public interest.
The analysis of whether a defamation proceeding has substantial merit requires a close examination of the words or expressions alleged to defame. In this case, it would have been necessary for the motion judge to analyze, if not every tweet, the string of Ms. Gusciglio’s tweets, or, a representative sample of the expressions, which analysis was lacking.
The Court of Appeal stated that had a thorough examination of the impugned expressions been carried out by the motion judge at the s. 137.1(4)(a) stage, it likely would have helped the judge to conclude under s. 137.1(4)(b) that the “likelihood of harm [existed] of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression.”[11]
Dispensing with the analysis of whether a defamation action has substantial merit and a defence to the action would not succeed can be “hazardous”. The Court may overlook the possibility that a tweet or expression could be motivated by malice, bad faith or improper purpose.
In Universalcare, the motion judge’s analysis at the s. 137.1(4)(b) stage was also rather “brisk”, with the judge concluding that “little or no harm” flowed from the tweets to Mr. Gulizia[12]. At this stage, what was also missing from consideration was the impact the impugned expressions had on the reputation of VC, its staff and CEO; VC operated in a “highly regulated field”; VC’s operations required a “high level of trust” by regulatory bodies; and Mr. Gulizia was accused of serious crimes which impacted his and VC’s reputation.[13]
The Court of Appeal emphasized the “weighty importance reputation must be given” and that reputation is “closely related to the innate worthiness and human dignity of the individual’’.[14] The Court of Appeal concluded the motion judge erred in not considering sufficiently the professional reputational harm to Mr. Gulizia. Even if the reputational harm to a plaintiff is not clearly quantifiable at this stage, it is nonetheless a significant factor for consideration. It may lead the Court to conclude that reputational harm far outweighs the public interest in protecting the expression.
As the motion judge focused only on whether the expression addressed a matter of public interest and engaged in a brief analysis of the potential harm to VC, the Court of Appeal ruled the balancing analysis within the two-part test had to be redone. As such, the anti-SLAPP motion was remitted back to Superior Court for a rehearing. The costs award against VC was also set aside. Whether Ms. Gusciglio will proceed with a fresh anti-SLAPP motion is yet to be seen.
Takeaways
VC tried to persuade the Court of Appeal that Mr. Gusciglio’s tweets were “personal invective” and of “low value”. However, the Court rejected the argument siding with the motion judge’s interpretation that while some of the expressions were in fact “low value” personal attacks against VC, the overall object of the defamation lawsuit was alleged elder abuse in long-term care homes, which was “uncontroversially a matter of public interest”.[10] As such, the nature of the expressions brought the defamation action within the ambit of section 137.1(3) of the CJA, satisfying the first part of the test.
Defamation Proceeding Not Dismissed if Action Has Merit and Serious Harm Is Suffered
The second part of the test is a conjunctive application of s. 137.1(4)(a) and s. 137.1(4)(b). Section 137.1(4)(a) requires the plaintiff to establish grounds to believe (1) the proceeding has substantial merit and (b) the defendant has no valid defence to the proceeding. Section 137.1(4)(b) requires proof of harm by the plaintiff that outweighs the protection of the expression in the name of public interest.
The analysis of whether a defamation proceeding has substantial merit requires a close examination of the words or expressions alleged to defame. In this case, it would have been necessary for the motion judge to analyze, if not every tweet, the string of Ms. Gusciglio’s tweets, or, a representative sample of the expressions, which analysis was lacking.
The Court of Appeal stated that had a thorough examination of the impugned expressions been carried out by the motion judge at the s. 137.1(4)(a) stage, it likely would have helped the judge to conclude under s. 137.1(4)(b) that the “likelihood of harm [existed] of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression.”[11]
Dispensing with the analysis of whether a defamation action has substantial merit and a defence to the action would not succeed can be “hazardous”. The Court may overlook the possibility that a tweet or expression could be motivated by malice, bad faith or improper purpose.
In Universalcare, the motion judge’s analysis at the s. 137.1(4)(b) stage was also rather “brisk”, with the judge concluding that “little or no harm” flowed from the tweets to Mr. Gulizia[12]. At this stage, what was also missing from consideration was the impact the impugned expressions had on the reputation of VC, its staff and CEO; VC operated in a “highly regulated field”; VC’s operations required a “high level of trust” by regulatory bodies; and Mr. Gulizia was accused of serious crimes which impacted his and VC’s reputation.[13]
The Court of Appeal emphasized the “weighty importance reputation must be given” and that reputation is “closely related to the innate worthiness and human dignity of the individual’’.[14] The Court of Appeal concluded the motion judge erred in not considering sufficiently the professional reputational harm to Mr. Gulizia. Even if the reputational harm to a plaintiff is not clearly quantifiable at this stage, it is nonetheless a significant factor for consideration. It may lead the Court to conclude that reputational harm far outweighs the public interest in protecting the expression.
As the motion judge focused only on whether the expression addressed a matter of public interest and engaged in a brief analysis of the potential harm to VC, the Court of Appeal ruled the balancing analysis within the two-part test had to be redone. As such, the anti-SLAPP motion was remitted back to Superior Court for a rehearing. The costs award against VC was also set aside. Whether Ms. Gusciglio will proceed with a fresh anti-SLAPP motion is yet to be seen.
Takeaways
-
An anti-SLAPP motion is an effective tool to consider when your client is defending a defamation action which appears to be brought strategically to silence your client’s expressions on a matter of public interest;
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An anti-SLAPP motion requires a careful application of a two-part test under s. 137.1 of the CJA: (1) does the defamation proceeding arise out of expressions that relate to matters of public interest, and (2) does the proceeding have substantial merit; is there a valid defence to it and did the plaintiff suffer serious reputational harm that does not justify protecting the impugned expression;
-
While intended to be efficient, an anti-SLAPP motion can resemble a mini trial, with lots of affidavit evidence and cross-examinations on affidavits;
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Anti-SLAPP motions may not always succeed and can be very costly: if a defendant is unsuccessful, costs may not be recoverable; however, if a defendant is successful and the plaintiff’s defamation action is dismissed, the defendant may be entitled to recover costs on a substantial indemnity basis.
[1] Anti-SLAPP Legislation: A Backgrounder | Centre for Free Expression: https://cfe.torontomu.ca/guidesadvice/anti-slapp-legislation-backgrounder
[2] Protection of Public Participation Act, 2015, S.O. 2015, c. 23 - Bill 52 | ontario.ca: https://www.ontario.ca/laws/statute/s15023
[3] Ibid.
[4] Universalcare Canada Inc. v. Gusciglio, 2025 O.N.C.A. 583 (“Court of Appeal Decision”); 2023 O.N.S.C. 6874 (“Motion Judge’s Decision”)
[5] Ibid. Motion Judge’s Decision, para. 5
[6] Courts of Justice Act, R.S.O. c. C43, section 137.2
[7] Motion Judge’s Decision, supra note 4 at para. 2
[8] Ibid. at para. 10
[9] Ibid. at para. 8
[10] Court of Appeal Decision, supra note 4 at para. 10-11
[11] Ibid. at para. 15, as cited in Hansman v. Neufeld, 2023 SCC 14 at para. 67
[12] Ibid. at para. 14.
[13] Ibid. at para. 15
[14] Ibid. at para. 15, as cited in Bent v. Platnick, 2020 S.C.C. 23 at para. 146 (citing Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, at para. 107
The opinions expressed in this article are those of the author(s) and should not be taken as legal advice. Any errors, omissions or inaccuracies are the responsibility of the author(s). Content in Hearsay is edited for spelling, grammar and basic punctuation only.
The opinions expressed in this article are those of the author(s) and should not be taken as legal advice. Any errors, omissions or inaccuracies are the responsibility of the author(s). Content in Hearsay is edited for spelling, grammar and basic punctuation only.