Protecting public debate through anti-SLAPP legislation

Last week, Greenpeace Canada filed a defence in a claim by Resolute Forest Products Inc. This was the result of a failed motion by Greenpeace to have Resolute's claim for intentional interference with economic relations dismissed by the Divisional Court of Ontario, together with an order requiring Greenpeace to pay $20,000 in costs. According to Resolute's claim, Greenpeace widely distributed the Unsustainability Report on Resolute, together with other targeted communications to customers, investors and stakeholders, which harmed Resolute's business, goodwill and reputation.

In response to the filing of its defence, Greenpeace stated that Resolute benefited from filing its claim in Ontario instead of Quebec where Resolute's headquarters were located, because Ontario did not have legislation designed to prevent what are referred to as Strategic Lawsuits against Public Participation (SLAPPs).

Anti‑SLAPP legislation in Canada

Quebec is the only province in Canada with legislation designed to protect organizations and individuals from being the target of a SLAPP, in cases where they express opinions in the public interest that may be contrary to the interests of another party. British Columbia implemented legislation in 2001 but it was repealed four months later.

SLAPPs are designed to chill freedom of expression in the public interest by initiating costly legal proceedings against the parties engaging in public debate.

In June of 2013, the Government of Ontario introduced Bill 83, the Protection of Public Participation Act. Bill 83 made certain amendments to the Courts of Justice Act and the Libel and Slander Act, in order to encourage individuals to express opinions on matters of public interest and promote debate, and to discourage the use of litigation to silence public debate.

Notably, it allows a defendant in a lawsuit to bring a motion to have a proceeding dismissed where it could be demonstrated that the proceeding met the definition of a SLAPP.

Bill 83 died when the 2014 Ontario provincial election was called, and the status of proposed anti‑SLAPP legislation under the new government is unknown.

The common law on SLAPPs

The common law does provide some protection from SLAPPs through the award of special costs, meaning an award of legal costs on a substantial indemnity basis. Generally, barring misconduct or other improper behaviour, only part of the legal costs incurred by a successful party may be awarded by a judge, meaning partial indemnity. Where special costs are awarded, the amount of the award would be closer to the actual legal costs incurred by the successful party, meaning substantial indemnity. Special costs are meant to sanction the improper behaviour of a party during the conduct of the lawsuit or, in the case of SLAPPs, for bringing an improper action.       

In British Columbia, despite the repeal of anti‑SLAPP legislation, courts have dealt with SLAPPs through an award of special costs.  

The British Columbia Supreme Court (BCSC) in Fraser v. District of Saanich et. al., found that the action brought by Ellen Fraser and Clovelly Terrace against the Corporation of the District of Saanish and several community members who opposed Fraser's application for re‑development of a nursing home owned by Clovelly Terrace, was not only meritless and unreasonable, but was also used as "an attempt to stifle the democratic activities of the defendants, the neighbourhood residents." (see paragraph 52). The basis of the court's conclusion was that Fraser's claim raised no cause of action, alleged misconduct without any supporting facts, and was brought with the purpose of silencing the defendants. These factors justified an award of special costs to the defendants.

Similarly, in 2011 the BCSC in Scory v. Krannitz, relying on Fraser also awarded special costs on the basis that the allegations in the claim could be not be proven and the claim could be characterized as a SLAPP.

The common law addressing SLAPPs does not necessarily address the concerns in the manner that anti‑SLAPP legislation is designed. Under the common law it is still necessary to demonstrate that a claim is devoid of merit and has no chance of success. It sets a higher bar for addressing SLAPPs.

In Quebec, under section 54.1 of the Code of Civil Procedure, a SLAPP may be found where a claim or action is brought in bad faith or a party uses a procedure that is excessive or unreasonable if it is an attempt to defeat justice, notably through restricting freedom of expression in public debate.

Based on this criteria, the court may on its own or after submissions by the parties, declare a claim improper.  

Similarly, Bill 83's proposed amendments to the Courts of Justice Act stated that where a proceeding related to a matter of public interest does not have substantial merit and there is no valid defence to the proceeding, a defendant could bring a motion to have the proceeding dismissed. 

Neither the Quebec Code of Civil Procedure nor Bill 83 requires a party to demonstrate that the claim should be dismissed prior to obtaining an award of special costs. The analysis of whether the lawsuit is designed to chill public debate forms an essential part of whether the lawsuit should be dismissed. In contrast, the common law only considers whether the lawsuit is geared towards chilling public participation when deciding on whether special costs should be awarded once the lawsuit is dismissed.

As found by the Anti‑SLAPP Advisory Panel in its report to the Attorney General of Ontario in 2010, although rules of civil procedure addressing issues such as abuse of process and frivolous and vexatious lawsuits are useful in ordinary cases, they do not address the specific concerns around chilling public debate that SLAPPs raise. The Advisory Panel found that "threats of lawsuits for speaking out on matters of public interest, combined with the number of actual lawsuits, deter significant numbers of people from participating in discussion on such matters."

Legal proceedings are costly and can be untenable for individuals or organizations actively involved in public debate. Anti‑SLAPP legislation provides a mechanism to protect this kind of debate from being silenced by allowing courts to dismiss cases aimed at stifling freedom of expression in the public interest. In Ontario, the provincial government came close to affording this kind of protection, and will hopefully continue to recognize the importance of this legislation in creating a space for public debate.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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