On Dec. 1, Ontario’s proposed anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation passed a first reading in the legislature. With the Protection of Public Participation Act, 20141likely to receive royal assent under the current provincial government, it’s a good time to consider the contents of the draft Act and how it might operate in practice.
Background to the PPPA
A SLAPP has been defined as “a lawsuit initiated against one or more individuals or groups that speak out or take a position on an issue of public interest. SLAPPs use the court system to limit the effectiveness of the opposing party’s speech or conduct.”2 They usually concern highly-charged or sensitive issues.
In Canada, there has been an ongoing debate about whether anti-SLAPP legislation is necessary and whether it would create more problems than it would resolve. In British Columbia, the Protection of Public Participation Act3 was very short-lived, being enacted in April 2001 and repealed in August 2001 by a newly elected provincial government. In Québec, amendments to the Civil Code made in 2009 strengthened existing abuse of process provisions, which now allow SLAPPs to be considered an abuse of the court’s process and provide certain subsequent remedies. Currently, this is the only form of anti-SLAPP legislation in Canada. There is some, but not a lot, of relevant case law.
In Ontario, anti-SLAPP legislation was unsuccessfully introduced in 2008 and 2012. The latest version of the PPPA is the result of a 2010 report by the Attorney General of Ontario's Anti-SLAPP Advisory Panel, which recommended the introduction of an efficient process for dismissing SLAPPs and which also emphasized freedom of expression.4 The PPPA was introduced by the Attorney General in June 2014 as Bill 83.
What does the PPPA provide?
In short, the PPPA is designed to provide a mechanism for dismissing a SLAPP quickly. Under the PPPA, on a motion by the defendant, a court may dismiss the action if the “proceeding arises from an expression made by the person that relates to a matter of public importance.”
However, the action will not be dismissed if the plaintiff can show that: (1) there are grounds to believe that the claims has substantial merit and that the defendants has no valid defence, and (2) that the harm that has been or likely will be suffered by the plaintiff outweighs the public interest in protecting the expression of the defendant that is in issue. This decision should take into account the existing law of free expression and the protection of reputation and economic interests.
In addition, the PPPA will include the following provisions:
- A PPPA motion will be heard within 60 days.
- No other steps in an action may be taken before a PPPA motion has been decided, including an appeal.
- Cross-examinations on affidavits shall not exceed seven hours for all plaintiffs and seven hours for all defendants.
- A plaintiff cannot amend its pleadings to avoid an order under the PPPA.
- A defendant, who is successful on a PPPA motion, is presumptively entitled to full indemnity costs.
- A plaintiff, who is successful on a PPPA motion, is presumptively entitled to no costs.
- If the court finds the plaintiff’s action was commenced in bad faith, it may award damages “as the judge considers appropriate.”
- An appeal of a PPPA motion “shall be heard as soon as practicable” after the appeal is perfected.
Finally, the PPPA amends the Libel and Slander Act5 to permit a defence of qualified privilege, regardless of whether the communication is witnessed or reported by the media. At common law, following the introduction of the defence of responsible communication on a matter of public interest, a defence of qualified privilege is usually unavailable in a case of a media publication.6 In addition, it is unclear at what point a media publication becomes a “publication to the world” and therefore cannot be protected by privilege. The PPPA appears to clarify this issue and broadens the qualified privilege defence.
What can we expect?
The focus of the debate over anti-SLAPP legislation has been whether such legislation is necessary to ensure freedom of expression and public debate on important issues. Broadly speaking, proponents argue that a mechanism to dismiss SLAPPs quickly is necessary in order to ensure meaningful participation in public debate. Opponents, on the other hand, argue that there is no firm evidence that abusive lawsuits are a problem in Ontario, the law offers satisfactory remedies against SLAPPS and there are many opportunities for the public to make submissions to government on matters of public interest.7
As the draft PPPA provides for an additional procedural mechanism to dismiss a claim, which allows parties to file evidence, conduct cross-examinations and debate the merits of an action, the Act may draw criticism as being another form of summary judgment.
In addition, under current libel law, a plaintiff only needs to prove that the words complained of were published to a third person, refer to the plaintiff, and are capable of being defamatory — then the falsity of the words are presumed and damages are presumed and the defendant must make out a defence. Under the PPPA, a defendant need only file a motion alleging the libel action is a SLAPP and the plaintiff must show — for the first time under Ontario law – that the claims have substantial merit and the defendant has no valid defence — a game changer.
There will also likely be growing pains as early cases determine how the PPPA is to be interpreted and applied. For example, certain important terms remain undefined, including ‘a matter of public importance,’ ‘substantial merits’ and ‘a valid defence.’ Further, courts will have to determine how to conduct the balancing act between the harm that will be suffered by the plaintiff and the public interest in protecting the expression of the defendant.
On the other hand, the PPPA is clearly intended to target abusive proceedings only. The “purpose” section of the Act provides that its purpose is to encourage freedom of expression and debate on matters of public interest and to “discourage the use of litigation as a means of unduly limiting expression...” This makes clear that the PPPA is intended to discourage litigation that is deliberately being used to “unduly” limit expression: the Act cannot be used as a means of weeding out weak claims, or even those that may not disclose a viable cause of action, if the claims are not being used for an improper ulterior purpose. This interpretation is consistent with the 2010 Report recommendation that anti-SLAPP legislation should provide a means of efficiently dismissing SLAPPs “...if those suits were brought for an improper purpose, namely to harass or intimate defendants.”8
The provisions of the PPPA also focus the Act’s application. An action will only be subject to the PPPA if it concerns (1) “an expression” that (2) “relates to a matter of public interest.” Like the purpose section, this provision focuses the PPPA’s application to proceedings whose focus is a debate over a public issue. In addition, a plaintiff need only show “grounds to believe” that the proceeding has substantial merit, there is no valid defence and it is in the public interest for the proceeding to continue. This is not a high evidentiary standard and appears to be akin to showing a good defence on the merits under the security for costs provisions of the Libel and Slander Act, as opposed the standard on a summary judgment motion.”9 Together with the limitation on cross-examinations and the 60-day hearing deadline, this standard should address some of the concerns raised by opponents to the PPPA.
However, only time will tell how effective the Act will be in practice.