The Ontario government has addressed the issue of 'SLAPP' lawsuits by introducing the Protection of Public Participation Act, 2013 (the "PPPA") in the Ontario legislature.
The PPPA adopts recommendations made in a 2010 report by the Attorney General of Ontario's Anti-SLAPP Advisory Panel The three-member Panel was composed of Mayo Moran, Dean of the University of Toronto Faculty of Law, Toronto media counsel Brian Rogers, and the author of this bulletin.
The acronym SLAPP stands for 'Strategic Litigation Against Public Participation'. It refers to litigation without substantial legal merit that is brought against citizens or groups in order to silence their opposition to the plaintiff on matters of public interest, and to deter others from voicing opposition to the plaintiff on public interest issues.
The express purposes of the PPPA are to encourage individuals to express themselves on matters of public interest; promote broad participation in debate on such matters; discourage the use of litigation as a mean of unduly limiting such expression; and reduce the risk that participation in public debate will be hampered by fear of legal action.
The PPPA aims to prevent the misuse of courts and other agencies of justice, without depriving anyone of appropriate remedies for expression that actually causes significant harm.2] To this end, where an action is brought against a defendant on the basis of expression by the defendant on a matter of public interest, the PPPA provides for an expeditious preliminary merits review.
On a motion for relief under the PPPA the court may dismiss the action unless the plaintiff establishes that, first, there are grounds to believe that the claim has substantial merit and that the defendant has no valid defence; and second, 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 balancing exercise will be for the judgement of the court, having regard to the existing law of free expression and the protection of reputation and economic interests.
If the plaintiff does not meet this test, the court will dismiss the action. The PPPA establishes a presumption that a successful moving defendant should be awarded costs of the litigation on a full indemnity basis. If the court finds that the plaintiff has brought the action in bad faith or for an improper purpose, the court can also award damages to the moving defendant.
The PPPA provides that once a motion is brought, no further steps may be taken in the proceeding pending the motion's disposition. If the expression in issue relates to a pending proceeding before an administrative tribunal, that proceeding may also be stayed pending the disposition of the motion by filing with the tribunal a copy of the notice of motion. The court is provided discretion to grant relief from the stay in appropriate cases.
The PPPA also requires the expeditious disposition of the motion. A motion for preliminary review is to be heard within 60 days of the filing of a notice of motion. Pending the hearing of the motion, the time for cross-examination on documentary evidence is to be limited to one day for each party, subject to the court extending the time in the interests of justice. After the motion is disposed of, any appeal is to be heard as soon as practicable after it is perfected.
Upon its introduction in the Legislature on June 4, opposition parties expressed support for the legislation. It is anticipated that the PPPA will receive second reading this fall, and that it could potentially be in force by the end of 2013.