Lindsay Rauccio, Jennifer Fairfax, Jack Coop
Dec 10, 2014
Bill 52, the Protection of Public Participation Act, 2014 (the Bill), was re-introduced by Attorney General of Ontario Madeleine Meilleur on December 1, 2014. The Bill is a reincarnation of Bill 83, which was first introduced in 2013 and received its second reading in September of that year before dying on the order paper.
The Bill “seeks to balance the protection of public participation and freedom of expression and the protection of reputation and economic interests” and to discourage the use of Strategic Lawsuits Against Public Participation (SLAPPs). SLAPPs, which are defined as lawsuits that are brought for the dominant purpose of silencing public opposition on an issue by strategically entangling the defendant in a web of expensive and time-consuming litigation, have been recognized as having the potential to stifle valid criticism and debate on issues of public interest.
The Bill represents the culmination of an Anti-SLAPP Advisory Panel (the Panel) that was struck to study the issue of SLAPPs in Ontario. In October 2010, the Panel reported its recommendations to the Ministry of the Attorney General.
The “Test” for Determining Whether a Lawsuit Constitutes a SLAPP
Rather than creating a new statutory right of public participation, the proposed legislation would amend the Ontario Courts of Justice Act to include a review process by which purely tactical lawsuits can be dismissed at an early juncture. The test, as set out by Bill 52, for determining whether a lawsuit constitutes a SLAPP would require a consideration of the following factors:
- First, the defendant in the alleged strategic lawsuit (i.e., the moving party) must show that the proceeding arises from an expression it made that “relates to a matter of public interest.”
- Second, if the defendant (moving party) is able to demonstrate that the proceeding arises from an expression on a matter of public interest, then the onus shifts to the plaintiff in the action (i.e., the responding party to the motion) to show that there are grounds to believe that:
- the underlying proceeding has substantial merit;
- the moving party has no valid defence in the proceeding; and
- the harm that would be 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.
With respect to (c), former Attorney General of Ontario John Gerretson explained during the first reading of Bill 83 that the test requires the courts to “balance the interests at stake, with an eye not only on the technical merits of the plaintiff’s case but the value of free expression on matters of public interest. Where the plaintiff is likely to suffer serious harm, … the case would continue. If, however, little or no harm is likely, then the technical merits of the case would yield to the value of public democratic debate, and the suit would be dismissed.”
According to the Panel, the key evaluation is the effect of the proceeding under review, rather than the intent. It is therefore not necessary for a court to find that the plaintiff’s proceeding was instituted in bad faith or for an improper purpose in order to dismiss a proceeding. Courts can, however, award damages against the plaintiff in such circumstances.
The dismissal motion is intended to be a fast-track review akin to a summary judgment motion. A motion to dismiss a proceeding is to be heard on an aggressive schedule within 60 days after the notice of motion is filed. A party can appeal a decision on the motion as of right to the Court of Appeal.
Related Administrative Tribunal Proceedings Would be Stayed
Once a dismissal motion has been brought, a related administrative tribunal proceeding may be stayed simply by the moving party filing its notice of motion with the tribunal. The stay remains in place until the dismissal motion has been finally disposed of, including any appeals. However, the Bill empowers a judge to, on motion, order that the stay is lifted if it poses an undue hardship to a party to the tribunal proceeding, or if the tribunal proceeding and the proceeding that is the subject of the motion to dismiss are not sufficiently related to warrant a stay.
Cost Consequences Are Weighted in Favour of the Moving Party
The Bill imposes severe consequences on a plaintiff if a dismissal motion is successful:
- First, the plaintiff is prohibited from amending its pleadings in order to prevent the dismissal order or to continue the proceeding.
- Second, plaintiffs are required to pay the full indemnity costs of the defendant on the motion and the underlying action, unless the judge determines that such an award is not appropriate.
- The Bill also allows a judge to award damages to the moving party if it is determined that the proceeding was brought for the express purpose of silencing or threatening a defendant, rather than as a means of protecting legitimate reputational or commercial interests.
By contrast, a successful respondent on a motion to dismiss is not entitled to costs, unless a judge determines that costs would be appropriate in the circumstances.
If passed into law, the Bill will substantially increase the risks associated with bringing a defamation or libel action (or indeed, any action brought against an individual or entity which might conceivably be categorized as having made expressions relating to a matter in the public interest). Prospective plaintiffs will need to carefully consider whether the advantages of such suits outweigh the risk of costs associated with an early dismissal of the proceeding.
In particular, the Bill raises but does not resolve a number of legal and practical issues:
- “Public Interest” vs. Harm to the Individual. The Bill provides no definition or criteria to assist prospective plaintiffs in determining whether a given expression relates to a “matter of public interest.” This is an issue which the Panel recommended leaving to the courts to be decided on a case-by-case basis. In addition, the Bill provides no guidance with respect to how significant or severe a harm to reputation, business or personal interests must be in order to trump an expression on a matter of public interest. It therefore remains to be seen how courts will address these issues. As Jennifer Fairfax commented in an article on the Bill in Canadian Lawyer, “the devil is in the details.” Prospective plaintiffs should therefore be comfortable with the notion of being a test case.
- “No Valid Defence.” The Bill provides no guidance on what it means for a plaintiff to prove that the moving party has “no valid defence.” However, if the dispute between the party litigants in such an action hinges on a clash of expert opinion that has yet to be adjudicated by the relevant statutory decision-maker in a related administrative proceeding, the “no valid defence” requirement may be a difficult hurdle for such a plaintiff to surmount. On the other hand, there may be cases where it will be easier to establish “no valid defence” (e.g., where a defendant is clearly engaged in an activity it knows to be illegal, such as violating a court-ordered injunction or conspiring with a regulatory authority to commit an abuse of public office).
- 60 Day Motion. Although the Bill provides that the motion to dismiss must be heard within 60 days, parties in Ontario are currently waiting many months to have any motion heard. Moreover, the tests set out for a dismissal motion would appear to require the parties to put their best foot forward from an evidentiary perspective, in a manner akin to a summary judgment motion, including the filing of affidavits and documents, and the conducting of out-of-court cross-examinations – a time-consuming exercise that is unlikely to be completed in 60 days. Given these circumstances, it is unclear how the courts and the parties will be able to accommodate the fast-tracking of dismissal motions envisaged by the Bill.
- Length of Stay. Until there is a conclusive body of jurisprudence on these types of motions, courts are likely to reserve for several months to carefully consider the issues prior to issuing a decision. In the meanwhile, the underlying action and any related administrative tribunal proceedings may be stayed pending the decision and the resolution of any appeals. This may create uncertainty and delay, and may detrimentally increase litigation, contrary to the Bill’s stated goal of unclogging the court system of frivolous claims.
- Traditional Cost Principles Upended. The Bill upends traditional cost principles (e.g., “loser pays partial indemnity costs of winner”), resulting in much greater risks for prospective plaintiffs. The Bill presumes that a successful defendant, who convinces a court to dismiss the proceeding against it, will be able to recoup their full indemnity costs, while an unsuccessful defendant, who fails to convince a court to dismiss the proceeding against it, will not be liable to pay any costs (let alone full indemnity costs) unless the judge determines that such an award is appropriate. It is exceedingly rare for a party to be awarded full indemnity costs in any circumstances, even in situations where the other party’s conduct has been in bad faith, or for a party to be immunized from a costs award for their own legal conduct. For the Bill to make these presumptions in favour of defendants lends credence to the notion that the Bill may tip the balance too far in favour of those who are purporting to act in the public interest.
It is difficult to know whether these anticipated problems with the Bill will become a reality, or whether the Legislature will take positive steps to address them. If the Bill is passed in its current form, it will be up to the courts to interpret the legislative scheme in a manner that both respects legislative purpose while at the same time neither eviscerating common law causes of action nor imposing impossible timelines on party litigants.
By Jack Coop, Jennifer Fairfax, Lindsay Rauccio