On November 3, 2015, the Protection of Public Participation Act, 2015 (the “PPPA”) received Royal Assent and came into force. The PPPA – which amends the Courts of Justice Act, Libel and Slander Act, and Statutory Powers Procedure Act – marks Ontario's first successful attempt to enact legislation dealing with so-called strategic lawsuits against public participation (more commonly known as “SLAPPs”).[1] Ontario follows the lead of Quebec, which amended its Civil Code in 2009 to deal with SLAPPs and, until the coming into force of the PPPA, was the only province in Canada with active anti-SLAPP legislation.[2] The scheme created by the PPPA applies to all lawsuits commenced on or after December 1, 2014.
SLAPPs are lawsuits intended to penalize members of the public who participate in public affairs and deter others from doing so. Although anecdotal evidence provides some support for preventing such litigation, there does not appear to be any hard empirical data that SLAPPs represent a serious problem. It is easy to characterize almost any litigation as a SLAPP.
Under the new section 137.1 of the Courts of Justice Act, a party against whom a proceeding is brought may bring a motion to dismiss an action as a SLAPP. A judge must dismiss the proceeding if he or she is satisfied “that the proceeding arises from an expression made by the person that relates to a matter of public interest”, unless the responding party shows that (i) there are grounds to believe the proceeding has substantial merit, (ii) there are grounds to believe the moving party has no valid defence in the proceeding and (iii) the harm likely to be or have been 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.
Although the new legislation appears to set out a structured process, the real question is what level of scrutiny courts will apply on these motions. “Public interest” is a vague and fairly low threshold to meet, such that the burden may easily shift to the responding party to fulfill what appears to be a much more stringent test. The task imposed on the responding party is made more difficult by timing, as these motions will be brought pre-discovery before the plaintiff has an opportunity to test his or her case.
This is especially problematic given the high stakes of these motions. Where a proceeding is dismissed on this basis, the moving party generally is entitled to full costs on the motion and in the proceeding, while the responding plaintiff generally is not entitled to costs even if the case is found not to be a SLAPP and proceeds to trial (subject to the discretion of the judge). In addition, judges have discretion to award damages where they find that the proceeding was brought in bad faith or for an improper purpose. Moreover, such motions can be used tactically to delay the plaintiff's claim from advancing.
Given that a proceeding found to be a SLAPP seems to inherently be for an improper purpose, exposure for a plaintiff is high, while there appears to be minimal risk to defendants in trying their luck under these provisions. Potential plaintiffs may be deterred from bringing legitimate defamation lawsuits.
Further, the legislation can be employed in ways unintended by the drafters. For example, an abortion clinic that commences an action to prevent protesters from interfering with its operations and molesting its patients may face a motion to dismiss by the defendants.
It remains to be seen how courts will balance the seemingly unequal burdens placed on the parties with the deterrent intent of the anti-SLAPP provisions. We are likely to see significant litigation under these provisions, as defendants experiment with the power they are now afforded and judges determine how to interpret and apply this new procedure.
[1] Ontario previously attempted to enact anti-SLAPP legislation in 2008 (Bill 138), 2012 (Bill 132), and 2013 (Bill 83).
[2] British Columbia briefly had anti-SLAPP legislation in the Protection of Public Participation Act, which went into effect in April 2001, but it was repealed in August 2001.
