In Benchwood Builders, Inc. v. Prescott1, the Ontario Court of Appeal overturned an anti-SLAPP ruling that had dismissed a defamation lawsuit brought in the context of a heated dispute over a residential construction project. The decision provides insight into the application of defamation law to online reviews of products and services, including in the construction sector.
What you need to know
- Not every online review of a product or service relates to "a matter of public interest". Lawsuits arising from online comments that are part of bitter private disputes may not be subject to review under Ontario's anti-SLAPP (strategic lawsuits against public participation) legislation.
- The courts' willingness to protect freedom of expression is reduced when the expression is malicious and personal (name calling, character attacks, etc.) or contains misrepresentations.
- The courts may not be prepared to prevent lawsuits when parties to a construction project take their grievances online.
Background
In Benchwood Builders, a couple contracted with a construction contractor to renovate their home. The relationship soured during the renovation work and ended badly. The contractor started a construction lien action against the homeowners to recover unpaid bills.
About a month after the parties parted ways, the homeowners discovered that the contractor had posted photos of their home online to attract new customers. Angered, the homeowners took to social media. They made several posts and comments that were highly critical of the contractor and its work on their home. The homeowners described their experience with the contractor using extremely strong language. They also personally criticized the contractor's owner. Consequently, the contractor and its owner brought a defamation action against the homeowners.
The motion judge: anti-SLAPP ruling granted
The homeowners brought a motion for an order dismissing the defamation action as a strategic lawsuit against public participation under section 137.1 of the Ontario Courts of Justice Act. Ontario's anti-SLAPP regime exists to stop meritless litigation that serves to intimidate or undermine expression in the public interest. Traditional indicia of SLAPPs include an imbalance of power between parties and a history of litigation being used to silence expression.
The homeowners admitted they made statements on social media but claimed most of the postings were removed within minutes. The motion judge granted the anti-SLAPP motion and dismissed the defamation action, finding that the homeowners' comments related to a matter of public interest because the contractor offers services to the public and customer reviews online are "widely utilized"2.
The Court of Appeal: anti-SLAPP relief denied
The contractor appealed. The unanimous Ontario Court of Appeal overturned the decision, concluding that the motion judge had erred.
As a threshold issue, the Court found the motion judge had erred in finding that the homeowners' statements related to a matter of a "public interest". Instead, the Court found the homeowners' statements related to a private dispute over a construction project and did not attract the protections of section 137.1.
The Court of Appeal rejected the view of some lower courts that "[o]nline reviews serve an important function by offering the public information about consumer experiences dealing with professionals or businesses". The Court reiterated that social media is not a defamation-free zone and participants do not consent to the risk of being defamed.
The Court held that the online reviews posted by the homeowners reflected nothing more than an especially bitter private dispute. Although some members of the public might have found it interesting, it was not a matter of public interest and did not engage a broader societal concern.
The Court held that the classic SLAPP indicia—a power imbalance and a history of using litigation to silence critics—were absent. While some of the homeowners' statements may have been motivated by a desire to warn other consumers, the use of harsh derogatory language devolved into malice, and was not merely a review of construction work.
Footnotes
1 Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171.
2 The reasons of the motion judge are unreported.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
