On October 28, 2015, Bill 52, the Protection of Public Participation Act, 2015 (PPPA), passed a vote following its third reading at the Ontario Legislature. It awaits royal assent. The PPPA is designed and intended to allow people and organizations to better respond to SLAPPs (Strategic Litigation Against Public Participation).
The Problem with SLAPPs
SLAPPs are lawsuits or threats thereof, often meritless defamation or other civil claims, directed towards people or organizations who criticize the plaintiff (or potential plaintiff) on certain public interest issues. Because defendants incur costs in responding to such claims, SLAPPs disincentive such criticism on public interest issues. SLAPPs thereby limit the freedom of expression of people and organizations in practice; this freedom is one of the cornerstones of our Canadian democracy.
The Proposed Solution: The Protection of Public Participation Act, 2015
Effect of the PPPA
The PPPA, in essence, creates statutory machinery for said defendants that allows them to respond to SLAPPs in a quicker and less costly manner, if they so choose. The effect of the PPPA, then, is to potentially diminish the disincentive effect arising from SLAPPs and thereby protect freedom of expression.
For specificity, the PPPA amends the Courts of Justice Act by creating a motion to dismiss the plaintiff’s claim (s.137.1(3)). A judge will dismiss the plaintiff’s claim pursuant to such a motion if the former is satisfied that the proceeding arises from an expression made by the defendant that relates to a matter of public interest. The responding party may then move against this motion (s.137.1(4)); generally, the responding party can succeed if they can demonstrate to the judge that:
- There are grounds to believe that: (1a) the proceeding has substantial merit, AND (1b) the moving party has no valid defence in the proceeding; AND
- 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.
Please note that the immediately preceding enumerations are my own.
S.137.1(7) entitles the moving party to costs on the motion and costs on a full indemnity basis (all legal costs), unless the judge decides that such costs are not appropriate. Conversely, an unsuccessful motion to dismiss does not by default entitle the responding party to costs on the motion, unless the judge determines such costs to be appropriate.
In a broader sense, this motion can be brought by the defending party, prior to undertaking in lengthy and costly civil procedure.
Scope of the PPPA
A fact sheet released by the Canadian Civil Liberties Association, and Canadian Journalists for Free Expression expresses concerns over possible misinterpretation of the scope of the PPPA. In addition to the benefits already stated in the foregoing discussion, the PPPA will (as quoted from the CCLA-CJFE fact sheet):
- Ensure fairer process.
- It will be available to any civil litigant in Ontario (involved in a lawsuit started after December 1, 2014) who feels the suit is targeting their public participation and will not limit who can bring a special motion to dismiss.
- It will not create a new legal right.
- It will not limit protection to communication that targets governments.
- It will not focus on the purpose of the lawsuit.
Concerns Going Forward
While various organizations, the CCLA included, laud the PPPA, others have expressed reservations about its application. Derek Bell of Bennett Jones writes that the PPPA will be contentious on three main points in the course of its application:
- How will a court define a matter of “public interest”?
- What standards of proof will a court apply to the words of s.137.1(4), which define the limitations on a successful motion to dismiss the proceeding? Words such as “grounds to believe” in conjunction with “substantial merit” are heretofore undefined in Ontario civil procedure.
- How will the court balance the two notions of public interest in s.137.1(4)?
The PPPA combats the chilling effect with respect to SLAPPs through machinery that allows defendants to respond quicker and with lower cost than previously, within limits. Certain reservations related to the indeterminacy of the words of the Act may qualify optimism surrounding the application of the Act.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.