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.
Kate FairbrotherRead More
Davies Howe Partners LLP has once again been recognized by Novae Res Urbis as the top GTA law firm for Planning and Development.
Excerpt: “Davies Howe Partners once again retains the number one
spot in the GTA annual rankings, with its solicitors involved
in practically every major decision……..The sheer number
of OMB cases Davies Howe is involved in will make it an
uphill battle for any firm to challenge it for the number one
position in 2015.”
To read the complete Novae Res Urbis article, please click here.Read More
It has long been clear that a landowner who grants a right-of-way over his land does not give up the right do what he wants with that land, as long as the use does not interfere with the easement, as granted.
On October 24, 2014, the Ontario Court of Appeal affirmed this principle and provided a helpful overview of the law as it relates to encroachments on rights-of-way.
The case of Weidelich v. de Koning involved a right-of-way running behind a series of six row houses in Toronto. The right-of-way allowed the owners of these houses, known in law as the “dominant owners”, to access their garages. The owners of the house at the entrance to the right-of-way built an addition to their home that encroached upon a part of the right-of-way.
The Court of Appeal upheld the “substantial interference” test, stating that “an encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for a purpose identified in the grant”.
The dominant owner does not own the land upon which the right-of-way runs, but only enjoys the reasonable use of that land subject to the terms of the grant. However, the landowner cannot create an obstruction that prevents the dominant owner from substantially and practically exercising his right as conveniently after as before the obstruction. Further, the wording of the grant of the right-of-way may be so broad as to its use, or so specific as to its necessary dimensions, that almost any form of interference may be unlawful.
Hence, every case of encroachment on a right-of-way will turn on the specific circumstances, including the terms of the grant, the nature of the encroachment and its impact on the use of the right-of-way. The law also differs with respect to public as opposed to private roads.
With this decision, the Court of Appeal also made clear that it is irrelevant if a landowner deliberately encroaches onto lands subject to a right-of-way, so long as the interference is not “substantial”. In this regard, the Court held that Albiston v. Liu (a decision of the Small Claims Court) was wrongly decided.
Turning to the result in Weidelich, the Court of Appeal denied the neighbours’ appeal. It was uncontested that the addition to the house did not impede the neighbours’ ability to drive to and from their garages. The laneway remained at least 4.4 metres wide where the addition was built. Since the addition to the landowners’ home did not substantially interfere with the neighbours’ use of the right-of-way, it was not actionable.
By: Kyle GossenRead More
Lexpert®, Canada’s legal expert Directory, named Jeff Davies of Davies Howe Partners LLP one of Canada’s Leading Infrastructure Lawyers in a recent report. This Lexpert® story was published in the September issue of the Report on Business Magazine published by the Globe and Mail. Highlighting the rapid growth of public private partnerships in Canada, and tying effective legal modules to their continued success, Lexpert® described the selected lawyers as leading the “legal vanguard of Infrastructure evolution thus far.”
Click here to read the full report.Read More
On Sept 15th Pickering Council voted 4-3 to endorse Durham Live, a proposal made by Pickering Developments Inc. Durham Live is a proposal to re-zone vacant land in the Bayly and Church Streets area to a major tourist destination, which may include a variety of 40+ uses including a casino. DHP partner Katarzyna Sliwa, represented Durham Live.
For additional media coverage please see the following links:
“Ajax still questioning massive Pickering casino proposal” – durhamregion.com, Sept 03
“Pickering casino proposal marathon meeting forced to halt at 1 a.m.” – durhamregion.com, Sept 03
“Pickering casino project takes a step forward” – durhamregion.com, Sept 10
“Pickering council approves Durham Live re-zoning: What happens next?” – durhamregion.com, Sept 17Read More
Jeff Davies was recently quoted in Law Times, where he expressed his views on Toronto’s proposed Development Permit System (“DPS”). Jeff pointed out that, while well-intentioned, a DPS may have more problems and fewer benefits than its proponents expect and will “merely be the same creature dressed in different clothes.” Read the full article here.Read More
The Cobourg Internet, a community website, reported on a recent local OMB hearing.
The author describes Davies Howe Partners’ associate Katarzyna Sliwa as ‘super sharp. If she cross examines you, you lose.’ We agree! Click the link for the full report on her OMB victory.
Davies Howe Partners is proud to announce that 3 of our partners have been identified as Leading Practitioners in Property Development in the 2014 Canadian Legal Lexpert Directory. Our leading practitioners for 2014 are:Read More