Ontario Enacts Anti-SLAPP Legislation
SLAPP, an acronym for “Strategically Lawsuit Against Public Participation”, is a legal tactic used by organizations intent on muzzling public criticism of their policies and practices. Usually framed in defamation, a SLAPP plaintiff has no intention of pursuing a defendant for bona fide damages. Rather, the objective is to enforce the target’s silence through the prohibitive cost of litigation and the fear of additional legal action.
In an effort to protect free speech and promote public debate, on October 28 the Ontario legislature passed Bill 52 – the Protection of Public Participation Act, 2015. Largely through amendments to the Courts of Justice Act, it is intended to deter the use of SLAPPs through the following:
First, the Bill permits a SLAPPed defendant to bring a motion dismissing the SLAPP. The threshold for dismissal is low; all the defendant must do is “satisfy” the Superior Court that that the lawsuit arises from an expression made by the defendant that relates to a matter of public interest. “Expression” is defined broadly to mean any communication, verbal or non-verbal, public or private, regardless of whether or not it was directed at a person or entity. The Bill does not define the phrase “public interest” but our courts have interpreted it broadly. The public interest is not confined to publications on government and political matters. Nor must the plaintiff be a public figure.
Second, the Court can refuse to dismiss an alleged SLAPP only when the plaintiff satisfies it: (1) that there are grounds to believe that the lawsuit has substantial merit; (2) the defendant has no valid defence; and, (3) the likely or actual harm to the plaintiff caused by the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
Third, the Bill specifically prohibits any further steps in an alleged SLAPP until a motion to dismiss has been dealt with in finality. Subject to judicial supervision, the Bill also bars plaintiffs from amending their pleadings in order to prevent or avoid a dismissal order, or if the SLAPP is dismissed, to continue the proceeding. As to the latter, the Bill is silent as to the circumstances under which a Court can permit the pleadings to be amended allowing a dismissed proceeding to continue.
Fourth, the Bill presumptively provides that successful defendants are entitled to their costs on a full indemnity basis for both the motion to dismiss and the proceeding, unless it would be inappropriate in the circumstances. Plaintiffs who are successful in defeating a motion to dismiss are presumptively not entitled to any costs, unless costs would be appropriate in the circumstances. The Court is also clothed with jurisdiction to award successful defendants with appropriate damages when the plaintiff has brought the SLAPP out of bad faith or for an improper purpose.
Arguably, the Bill comes up short in the protection of some defendants who have been SLAPPed prior to its enactment. The Bill specifies that it is applicable to proceedings commenced on or after the date of its First Reading on December 1, 2014, meaning it does apply not to proceedings commenced before this date.
The Bill received Royal Assent and came into force on November 3.