On October 28, 2015, the government of Ontario passed the Protection of Public Participation Act, 2015 (PPA), designed to identify and eliminate strategic lawsuits against public participation (SLAPPs). The PPA is the result of an expert advisory panel's recommendations of 2010. In short, the PPA provides a fast-track review process to quickly identify and put an end to SLAPPs. But it will take some time for the courts to work out what the PPA will really mean in practice.
The Genesis of the PPA
Concern about SLAPP suits is nothing new. B.C., Quebec, and a variety of states in the United States have passed laws to address SLAPP suits, to varying degrees of success. The issue is that SLAPP suits use the court system, not to advance legitimate rights, but rather to punish those who may speak out against matters that are in the public interest.
The most recent and notorious instance of an alleged SLAPP suit arose in 2009. A developer proposed to build a large residential condo village with 1,600 units and one of the largest lake-based marinas in North America, on Lake Simcoe, north of Toronto. Some of the neighbours took issue with that idea, and waged a campaign against the development. Among other things, they opposed the development at the Ontario Municipal Board (OMB).
The developer commenced a number of lawsuits against various individuals and organizations, including some of the residents opposing the development at the OMB. Most of these lawsuits alleged that the individuals had defamed the developer. And when the OMB ruled in favour of the developer on the merits of the development, the developer then came after the residents for $3.2 million in costs.
The residents fought back at the OMB, alleging that the claim for $3.2 million in costs was, in effect, a SLAPP suit, designed to chill dissent by residents of Big Bay Point specifically, but also against development in general. The concern was that if residents could face millions of dollars in cost claims, simply by objecting to potential environmental consequences of development, then such opposition would quickly be muzzled. The OMB ultimately dismissed the cost claim, but only after the residents had to spend significant funds on legal fees in defending it.
These types of lawsuits, or in the case of Big Bay Point, cost claims, are not common. And as some commentators noted in their submissions to the Ontario advisory panel, there are other provisions in the Ontario Rules of Civil Procedure that deal with meritless lawsuits. Nonetheless, based on the advice of the advisory panel, the Ontario government decided to proceed with the PPA. It will come into force upon royal assent.
How the PPA Works
The PPA creates a new section 137.1 in the Courts of Justice Act, which states that it has the following purposes:
- to encourage individuals to express themselves on matters of public interest;
- to promote broad participation in debates on matters of public interest;
- to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
- to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.
Section 137.1(3) allows a defendant to a proceeding to bring a motion to dismiss that proceeding on the grounds that it "arises from an expression made by the person that relates to a matter of public interest."
The PPA prohibits the judge from dismissing the action if the plaintiff shows that "there are grounds to believe" that:
- the proceeding has "substantial merit"; and
- the defendant has "no valid defence in the proceeding".
Further, the plaintiff must show that the harm suffered by him or her is "sufficiently serious" that the public interest in allowing the proceeding to continue outweighs the public interest in protecting that expression.
This new legislation has some serious teeth. As soon as a defendant brings such a motion, section 137.1(5) prohibits anything else from happening in the case until the motion has been decided. The motion must be heard by the court within 60 days of the motion material being filed—one of the few instances where the government has required the court to make time to hear a motion within a very short period of time. And if defendants are successful in dismissing the case for being a SLAPP suit, they will receive much more than what would normally be available in terms of costs: they will be entitled to "full indemnity" costs, not just on the motion, but on the dismissed action as a whole. Moreover, the PPA also confers power to a court to award damages—on a motion!—if the judge finds that the proceeding was brought in bad faith or for improper purposes.
What the Courts Still Need to Work Out
The real fights to come will revolve around:
- proving that the case "arises from" the expression of matters of public interest;
- the standard applied to the plaintiffs resisting a SLAPP motion; and
- the "balancing" component of the test.
As set out above, the defendant must show that the case "arises from" expression that raises matters of public interest. First, there is some question of what constitutes a matter of "public interest". What standard will a court employ here? Will it require proof that the matters at issue transcend the personal, pecuniary interests of the individual litigants? Will the courts draw from constitutional freedom of expression cases that also discuss the importance of political speech and "public interest"? Second, there could be significant questions of proof involved in such a motion. Presumably the defendant must show, on a balance of probabilities, that the action "arises from" the expression. This may be obvious in some cases, such as in defamation lawsuits, given that the action will "arise" from the expression that is the subject-matter of the claim.
But in other cases it will not be so clear. Taking the Big Bay Point example, the developer sued two of the residents for, among other things, conspiracy to injure. The individual defendants in that case never personally uttered a word—there would be no "expression" to point to. It was simply their connection to the residents' opposition which resulted in the lawsuit. Would such a lawsuit be captured under the umbrella of "arising from" an expression of matters in the public interest? We will have to see.
The standard to be applied to the plaintiff (the person who is allegedly "SLAPPing") is both unknown to Ontario law and potentially quite onerous. The first part of the onus is not a standard known to Ontario civil procedure: the "grounds to believe" element of the statute. The plaintiff has to show not only that there are "grounds to believe" that the proceeding has "substantial merit", but also, incredibly, that the defendant has no valid defence to the proceeding. There is no "substantial merit" test in Ontario civil proceedings, and certainly no other area of law where the plaintiff must show that the defendant has no valid defence.
In no other area of law must a plaintiff justify his or her case on such a standard, at an early phase of the case. And the standard to be applied—"grounds to believe"—is largely unknown in Ontario law. The words appear nowhere else in the Courts of Justice Act. The standard of "reasonable and probable grounds to believe" is well-known in criminal law—this is the standard employed to authorize a police officer to arrest an individual of a criminal offence. But it seems unlikely that a court would employ that standard to a SLAPP suit, which obviously deals with a very different issue.
Normally, a court can only dismiss a proceeding if it concludes that the pleadings do not disclose a reasonable cause of action (Rule 21), or if it concludes on affidavit evidence that there is no genuine issue for trial (Rule 20). These standards are so different from what has been passed with the PPA that they are unlikely to be of much use to courts applying the PPA.
Finally, it is not clear how the courts will deal with the "balancing" component of the PPA. Where the court finds that the lawsuit arose from expression on matters of public interest, and the plaintiff has satisfied the "grounds to believe" test set out above, the plaintiff must then prove that the harm suffered by the plaintiff is sufficiently serious that the public interest in allowing the proceeding to continue outweighs the public interest in protecting that expression. This too raises a number of questions. This balancing is not based on the "grounds to believe" standard—plaintiffs must satisfy this test on a normal civil standard of balance of probabilities. That's the same standard they would have faced at trial. Each aspect of the balancing test raises questions that the courts will have to work out.
First, on its face, it appears that the plaintiff will have to prove, on a motion, that either (a) it has suffered damages ("harm") or (b) it will likely suffer damages. That is a significant hurdle, given that the quantum of damages is one of the trickier aspects of defamation cases.
Second, the plaintiff will have to show that, on a balance of probabilities, such harm is "sufficiently serious". What is the difference between "sufficiently serious" harm and other types of harm? Most SLAPP suits are defamation cases, and in every case the "harm" being alleged will be to the plaintiff's reputation. Are some reputations more deserving of protection than others? Is this a qualitative issue (the nature of the defamation, e.g., an allegation of rape is more "serious" than an allegation of negligence) or a quantitative issue (the dollar value of the harm suffered by the plaintiff)? The PPA gives no guidance on this, so this will be left to the courts.
Third, the plaintiff will have to show that the public interest of allowing their lawsuit to proceed outweighs the public interest in protecting freedom of expression. This too raises a host of questions. Keep in mind that by this stage of the analysis, the plaintiff will have already proved:
- that there are grounds to believe that the case has "substantial merit";
- there are grounds to believe that the defendant has no defence;
- that the plaintiff has suffered harm or is likely to suffer harm; and
- that such harm is "sufficiently serious".
It is difficult to imagine how a plaintiff could clear all of those hurdles yet still have a judge find that the public interest warrants dismissing the claim entirely.
It is possible that the PPA is infrequently invoked. The number of SLAPP suits in Ontario has never been meaningfully quantified. If anything, it is arguable that the PPA's most important effect will be a deterrent effect, chilling efforts by individuals to stomp out free speech through lawsuits.
Whenever section 137.1 is actually tested in the courts, the standard to be applied will be the most important battleground. On the one hand, courts will rightly be reticent to dismiss efforts by an individual in Ontario to redress alleged wrongs. Courts are reluctant to deprive people of their day in court.
On the other hand, courts do not like litigants who are using the court system as an abuse of process. As one New York judge said about SLAPP suits, "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined". It is the twin evils of abusing the court system and stomping out free speech that gives rise to this legislation, and any successful motion brought thereunder.
It will also be interesting to watch who invokes the PPA. For example, newspapers are frequent targets of defamation cases, even in circumstances where the newspaper is reproducing the allegedly defamatory statements made by others. One can imagine that newspapers would say that all of their expressions are matters of "public interest", and a court may well agree. Given that a newspaper would have to meet only that threshold, and given how much the plaintiff has to show in response, it is foreseeable that the PPA may well become the weapon of choice for newspapers and other publications. It is not clear that this was the government's intention.
For all litigants in Ontario, the PPA now has to be considered before starting any defamation suit in Ontario, along with any other lawsuit connected to public opposition to matters of public interest. But until the courts decide the first few motions to dismiss alleged SLAPP suits, we will not know with any certainty whether the PPA is a serious weapon in the hands of a defendant, or just a tool available for the worst abuses of the court system, which probably would have been rooted out by the existing Rules of Civil Procedure.