British Columbia’s Anti-SLAPP legislation entered its second reading this week. Bill 32, or the Protection of Public Participation Act was tabled by David Eby in May 2018.This legislation has roots in its short lived predecessor: an Act by the same name that the NDP implemented in 2001, and the newly elected Liberal government removed in the same year.
The legislation aims to discourage strategic actions brought against public participation, often involving large corporations with a wealth of resources bringing defamation suits against parties who can’t afford the costs associated with litigation, forcing them into a state of financially imposed censorship.
This was the issue faced by Alan Dutton, who was sued for $5.6 million by Kinder Morgan in 2014. Kinder Morgan claimed Dutton’s press comments and Facebook posts against the Burnaby Mountain Pipeline constituted defamation. While the action was eventually discontinued, Dutton’s battle against the pipeline giant cost him tens of thousands of dollars, a debt that followed him into 2018.
More recently, the Western Canada Wilderness Committee (WCWC) found themselves engaged in a legal battle over the alleged defamatory nature of articles they posted to their website which opposed Taseko Mine’s operations near Williams Lake. At trial, the WCWC argued successfully that the suit was a SLAPP, and were awarded scale B on all costs incurred prior to December 1, 2013 and special costs for costs incurred after this date. The BC Court of Appeal held that the trial judge erred in part, and allowed the appeal of the special costs.
These cases brought considerable attention to SLAPP suits, highlighting issues of censorship and British Columbia’s disparate access to justice, and prompting a reaction from B.C.’s legal community. In February 2018, a group of lawyers, law professors, and former Justices sent an open letter the Attorney General’s office, calling for urgent law reform:
Public confidence in the administration of justice is critically important. The justice system is currently experiencing many challenges, notably the insufficiency of legal aid and the prevalence of delay. The continuing presence of abusive lawsuits in the civil justice system is another issue which threatens confidence in the justice system, and which can result in a significant waste of public and judicial resources.
Plaintiffs in strategic lawsuits against public participation, or “SLAPPs”, as they are known, unfairly target individuals or groups with strategic lawsuits with the effect of deterring them from speaking out on matters of public interest. Defendants of SLAPPs are exposed to onerous financial and emotional costs incurred in a process that attacks their individual right to speak on matters of public interest and chills citizen engagement more broadly.
Many jurisdictions have recognized that abusive litigation violates rights of free expression and public participation and undermines public confidence in the administration of justice. British Columbia needs to safeguard the administration of justice by enacting effective anti-SLAPP legislation.
The letter, signed by many influential legal figures, including Frank Iacobucci, Ian Binnie, Wally Oppal and the Honourable Ujjal Dosanjh, suggested that B.C. look to Ontario’s anti-SLAPP law, citing its success in the legislation’s absence of a motive requirement, a requirement that many criticized the 2001 version for.
In its current form, the Participation Act is notably absent of a motive requirement, granting qualified privilege to communications between directly interested parties regarding matters of public interest. To obtain a dismissal, the defendant must satisfy a two step test. First, they must prove that the action arose out of the impugned communication or expression between two directly interested parties. Second, that the communication or expression relates to public interest. If the Applicant satisfies this test the court is required to order a dismissal, unless the respondent can rebut the findings.
With many eyes following this legislation, it will be interesting to watch its development in the debates and committee meetings.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.