Ontario re-introduces anti-SLAPP legislation
On December 1, 2014, Ontario once again tabled legislation targeting litigation brought for the purpose of stifling debate on matters of public interest, known as Strategic Litigation against Public Participation (“SLAPP”).
A SLAPP lawsuit typically involves a defamation claim against an expression made by the defendant that is contrary to the plaintiff’s interests. Proponents of anti-SLAPP legislation say these lawsuits are usually meritless and are brought by wealthy corporate entities against individuals or community groups for the purpose of discouraging public opposition.
If passed, the proposed Protection of Public Participation Act, 2014 (the “PPPA”) will allow a defendant in an alleged SLAPP lawsuit to bring a motion for dismissal at any stage in the proceeding. The defendant must show that its expression is related to a matter of public interest. If this is shown, the judge must dismiss the lawsuit, unless the plaintiff shows that:
(1) The lawsuit has substantial merit;
(2) The defendant has no valid defence to the claim; and
(3) The harm caused by the expression is serious enough that the public interest in allowing the lawsuit to continue outweighs the public interest in protecting the expression.
The motion must be heard within 60 days of being filed. Any related tribunal proceedings will be stayed if the defendant files a copy of the notice of motion with the tribunal. If the defendant succeeds in getting the proceeding dismissed, it will be entitled to 100% of its costs, which is almost never granted in typical lawsuits. The PPPA also gives the court discretion to award damages where it determines that the lawsuit was brought for an “improper purpose”.
In a typical defamation lawsuit, the plaintiff only needs to prove that the expression was defamatory and that it was communicated to at least one person. The onus then shifts to the defendant to prove that it has a defence to the claim (e.g. the content of the expression was true, or the expression was appropriate in the circumstances).
The PPPA reverses the onus of proof in defamation claims by forcing a plaintiff to not only prove its case, but also prove that there is no defence, all within a short 60 day timeframe. The defendant simply has to show that its expression related to a matter of public interest. This creates a presumption that any lawsuit against expression made in the context of a matter of public interest is a SLAPP lawsuit. A heavy burden then shifts to plaintiff to show that its lawsuit has “substantial merit” and, further, that there is no defence to the defamatory expression. This relieves the normal burden on the defendant and saddles the plaintiff with the difficult task of “proving a negative” without the benefit of a full trial.
The legislation creates a motion to dismiss with a very limited burden on the party bringing the motion (the “moving party”). In a typical motion to dismiss, the moving party must show that there is no genuine issue for trial, and is expected to lead evidence to prove this. Under the PPPA, once the defendant meets the threshold requirement that the expression relates to a matter of public interest, the burden of proof shifts entirely to the plaintiff to show that the lawsuit should not be dismissed.
What constitutes a matter of “public interest” is not defined in the legislation. How this gets interpreted by the courts will determine how easy it will be for a defendant to meet the threshold requirement and, consequently, how difficult it will be to advance a defamation claim in the future. The PPPA may therefore make for some ambiguous litigation where defendants have very little to lose in bringing a motion to dismiss as proposed in the legislation.
The intent of the PPPA is to prevent improper lawsuits. The presumption that the legislation creates (that any lawsuit against expression related to a matter of public interest is SLAPP) arguably goes beyond this intent and creates undue hardship for those with legitimate defamation claims.
Davies Howe Partners LLP has been involved in countless municipal planning and environmental matters that would likely be considered matters of “public interest” for the purposes of anti-SLAPP legislation, and has rarely seen accusations of SLAPP. In one instance, the firm sought substantial costs on behalf of a client in an Ontario Municipal Board (the “Board”) proceeding, where our client’s appeals were opposed by ratepayers seeking to stop its proposed development. The opposing parties argued that in seeking a high costs award, our client was engaging in SLAPP. The Board dismissed that allegation, determining that the cost claim was not brought for any improper purpose but rather out of genuine belief in entitlement to substantial indemnity costs.