What the bill proposes to do is strike a balance between a couple of values. One is the value of protecting an individual’s reputation or a company’s reputation. The other is the value of a robust and rigorous debate that the courts have described as freewheeling, that can be heated, that can result in intemperate comments. But that’s part of public debate, and it shouldn’t be met with threats of litigation to stop people from talking about the issues of the day. Those are the values that this bill is aimed at addressing.
Mr. Eby continued by pointing out the historic roots of SLAPP suits:
Historically, this is something that would have protected the aristocrats, protected very wealthy people from commentary from the common folks about them, and it’s structured that way. It’s structured in a way that is quite unique in terms of different ways of bringing forward a claim in court, or a tort, in that the way that you prove it is very strange.
The Attorney General further critiqued the burdens placed on the defendant in SLAPP suits, distinguishing them from other tort actions because here, damages are presumed without any proof of fault. Moreover, said the Attorney General, the damages are compensatory for an “abstract harm.”
The legislation identifies SLAPP suits through an expedited hearing process, which brings the merit of the lawsuit into issue. There is a low burden on the Applicant, who will need to establish that the publication is in the public interest.
The onus will then shift to the original SLAPP plaintiff to establish that the proceeding has substantial merit, and the respondent lacks a valid defence. Further, the plaintiff will have to demonstrate that the harm the publication will cause to them outweighs any good the publication may have brought to the public.
Importantly, the legislation allows for the Court to reward costs and punitive damages in the expedited application hearing process
This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.