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Legislative Recommendations

"A SLAPP suit is a claim for monetary damages against individuals ... on an issue of public interest or concern. It is a meritless action filed by a plaintiff whose primary goal is not to win the case but rather to silence or intimidate citizens who have participated in proceedings regarding public policy decision-making ... this action ... has been used as an attempt to stifle the democratic activities of the defendants, the neighbourhood residents." (Singh, J. Fraser v. Saanich (District) [1999], para. 49,52)


SLAPP suits are finally being recognized as a growing problem in Canada. In response, Quebec adopted anti-SLAPP legislation in 2009 and Ontario and British Columbia(1) both have proposed legislation in various stages of consideration. However, we are along way from providing adequate protections against transnational corporations and government agencies suing Canadians for organizing, demonstrating and speaking out about matters of public concern. Canadians must get involved and understand that as much as Bill C-51 represents a serious threat to democratic rights, so do SLAPP suits. We must organize to protect democratic rights and lobby for legislation to stop SLAPP suits.

The Environmental Defense Working Group (EDWG) is meeting with and lobbying elected officials to discuss legislation based on the following widely accepted recommendations. You can help by signing the EDWG petition and organizing to create effective media campaigns to bring SLAPP suits to the attention of the public, non-profits, unions, professional associations and groups here.

The following is a brief summary of the recommendations for anti-SLAPP legislation made by the EDWG in submissions to the BC NDP in light of the introduction of Bill M223 in May 2015. These recommendations are explained in Chantler's(2) study of anti-SLAPP legislation for the EDWG and presented below. The section concludes with a copy of Bill M223. We invite comments and help to move the agenda of provincial governments and the courts to protection rather than allowing corporations to tie up citizens in meritless law suits that stifle public participation in the democratic process.(3)

Summary of Recommendations

1. A clear statement of purpose
The law should include a clear statement of purpose that provides guidance to judges and potential litigants on how it should be applied in specific circumstances.

2. A statutory right to public participation
The law should clearly define the sphere of public expression and conduct to be protected and promoted, including that targeting both government and private interests, and should specifically exclude unlawful activity.

3. An effects-­‐based test
The legislation should provide an effects-­based test for identification of appropriate cases (as opposed to a purpose-­based test).

4. An onus shift to the plaintiff
If the defendant can establish the lawsuit has the effect of discouraging expression on a matter of public interest, the onus should shift to the plaintiff to justify the claim.

5. Special costs to successful applicants in most cases
Defendants who succeed in having the claims against them stuck under this law should be entitled to costs on a full­‐indemnity basis, subject to a judge’s discretion in exceptional cases where such are not warranted.

6. Compensatory and punitive damages in appropriate cases
Judge’s should be encouraged to award compensatory damages in successful applications where damages are proven. Punitive damages should be encouraged in cases where a claim was brought in bad faith.

7. Consistency of legislation across Canada and Charter Protections
There should be attention to legislation that is relatively consistent throughout Canada and there should be a much broader application of Charter Rights and Freedoms to apply to the Supreme Court for the protection of Charter rights.

1. Essential Components of an Effective Anti-SLAPP Bill

Scott and Tollefson (2010) identified the following three essential procedural components of any effective anti-SLAPP bill:

1. provisions that expedite identification and dismissal of SLAPPs;

2. provisions that reduce the economic burden of defending against SLAPPs; and

3. provisions that create economic disincentives to the filing of SLAPPs.

Scott and Tollefson also argued in favour of enshrining a statutory right to public participation, thereby specifically recognizing the activity to be encouraged and protected by the legislation. While the Moran Report does not explicitly adopt Scott and Tollefson’s framework, its recommendations are largely consistent.

Based on our review of the above reports and legislation we have concluded that an effective anti-SLAPP bill for BC should contain the following primary elements:

1. a clearly-defined purpose;

2. a statutory right to participation;

3. a process that allows rapid identification and dismissal of appropriate cases, including:

a. an effects-based test for identification of applicable cases based on the type of activity engaged in by the defendant;

b. a subsequent onus shift to plaintiffs to justify their claims; and

c. requirements for the timely hearing and disposition of appropriate cases;

4. provisions that reduce the economic burden of defending against SLAPP suits;

5. additional financial disincentives for bringing SLAPP suits; and

6. a statutory defence of qualified privilege applicable to defamation claims.

Each of these elements will be discussed in turn. At the end we recommend additional elements that ought to be included in an effective, comprehensive BC bill.

1. A Clearly-Defined Purpose

The Moran Report (2010), Ecojustice (2010), and Scott and Tollefson (2010) all recommend that anti-SLAPP legislation include a clear statement of its purpose. The respective legislation in BC (2001), Ontario, Quebec, California and Australia all specifically state their purpose, to varying degrees of specificity and clarity. The Australian Protection of Public Participation Act, for example, states at s. 5:

The purpose of this Act is to protect public participation, and discourage certain civil proceedings that a reasonable person would consider interfere with engagement in public participation.

While succinct, this statement of purpose does not provide much guidance on the application of the act to specific circumstances. By contrast, the repealed BC Bill 10 included in its purpose a much more detailed list of the various procedural elements and protections provided in the body of the Act. Meanwhile, the proposed Ontario Bill 52 arguably strikes an appropriate balance between clarity and comprehensiveness with its recitation of the broad ideals governing that bill.

We recommend the Ontario Bill 52 as providing a clear, succinct statement of its purposes (proposed amendment to the Courts of Justice Act at s. 137.1(1)):

Purposes

(1) The purposes of this Act are,

a. to encourage individuals to express themselves on matters of public interest;
b. to
promote broad participation in debates on matters of public interest;
c. to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
d. to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

The proposed BC Bill M 223 does not currently include a stated purpose.

1.2. Statutory Right to Public Participation

There appears to be some debate about whether an effective anti-SLAPP bill should enshrine a statutory right to public participation. Arguably such a right is implicit given the protections afforded by any such bill, but that alone does not support its exclusion. In our view, expressly providing a statutory right to public participation, if the right is carefully and properly defined, will provide potential litigants and judges with much-needed guidance in applying the law.

Scott and Tollefson insist that such a provision is essential and must define the sphere of public participation activities to be protected by an anti-SLAPP bill. They argue the definition should include the right “to communicate with all levels of government and the judiciary, as well as to the public at large in connection with matters of public concern”. This is in part because Canadians do not enjoy the same constitutional protections as Americans over this type of activity. In the US, the First Amendment right to freedom of expression includes freedom of speech, assembly and the implied rights of association. In BC, an express statutory right would reflect the value placed on this type of democratic activity. Meanwhile, it would also guide judges tasked with balancing the competing public and private interests that typically arise in SLAPP litigation. Lastly, Scott and Tollefson argue that a statutory right to public participation would assist with the identification of appropriate cases and enhance the prospect of early dismissal for potential defendants. Their recommendations are largely echoed by Ecojustice and the Canadian Environmental Law Association (2010).

Conversely, the Moran Report concluded the protection of public participation did not require the creation of a new “right”, and recommended against inclusion of an express statutory right to public participation. Accordingly, the Ontario bill does not include an express provision. The Moran report suggests that “Canadian’s constitutional freedom of expression, and the recognized importance of constitutional values for the development of the law applicable in civil litigation” were sufficient. Shragge (2011) argues that this is somewhat “disingenuous” given that the bill already creates an implicit right to public participation and that inclusion of an express right would only clarify the bill’s existing purpose and scope, thus providing helpful guidance to potential litigants and judges.

The Quebec anti-SLAPP law does not include an express right of public participations, perhaps because that Quebec’s Charter of Human Rights and Freedoms already guarantees “freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association”. Similarly, the Australian bill does not contain a statutory right to public participation, perhaps because the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution.

We commend the proposed BC Bill M 223 for its inclusion of a statutory right to public participation at s. 2. However, the language used in this section might overly emphasize action directed at government at the expense of action directed at private or corporate interests. We suggest an expanded definition that clearly encourages broad participation in public affairs by protecting the right to communicate on matter of public interest. Furthermore, we recommend the use of the phrase “public interest” in place of “public policy” due to the large body of jurisprudence considering what activity falls within the scope of “public interest” (for example, Grant v. Torstar Corp., 2009 SCC 61; WIC Radio v. Simpson, 2008 SCC 40).

The old BC bill, proposed first as Bill 29 (and later re-introduced as Bill 10), included a right to public participation (which was omitted from Bill 10). We recommend the language used in the proposed BC Bill 29: 2 (1) Subject to subsection 2, a person may make any communication or engage in any conduct if the communication or conduct is genuinely aimed at promoting or furthering lawful action by the public or by any government body in relation to an issue of public interest.

Subsection 2 of Bill 29 went on to limit the right of public participation to specifically exclude conduct that resulted in damage to property, physical injury, that was otherwise unlawful, or that was considered by a court to be an unwarranted interference with the rights or property of any other person. This, in our view, provided an effective balance between the right of public participation and the competing interests that might be affected by the establishment of such a right.

1.3. Process: an effects-based test for identification and dismissal of applicable cases

All noted commentary has stressed the importance of anti-SLAPP legislation providing a process for the efficient identification and dismissal of applicable cases, while at the same time, providing sufficient judicial discretion to allow for the variety of circumstances under which it will be applied. The proposed BC Bill M 223 provides the following process for identification and dismissal of applicable cases:

Right of participation

2 Every person has the right to participate freely in the process of government including the right to petition and communicate with government, and to freedom of speech, association and demonstration on matters of public policy.

Motion to dismiss

4 A person who alleges that an action or claim has been brought for the purpose of limiting a person’s enjoyment or use of the right in section 2 may, at any time, bring a motion to dismiss the action.

6 (1) A motion must be granted where the applicant establishes that the action was brought in order to deprive a person of the free and proper use and enjoyment of the rights accorded in section 2.

(2) A motion to dismiss must not be granted where the Court finds that
(a) the action is not one to which this Act applies;
(b) the motion of the applicant lacks any reasonable basis in fact; or
(c) the applicant's primary purpose is to harass the respondent, or to pursue some other private purpose other than the free exercise of the rights protected by this Act.

The process created by these sections places a heavy onus on the defendant (applicant) to prove the improper motive of the plaintiff (respondent), that is, to prove the plaintiff brought the action in order to deprive the defendant of its right to public participation (the
language “the action was brought in order to” appears to import the plaintiff’s motive into the equation).

The repealed BC Bill 10 provided for a similar process, with the onus squarely on the defendant (applicant) to prove the improper intention of the plaintiff in bringing the action. Under that law, the application for a dismissal would not succeed if the defendant was unable to prove the plaintiff acted with an “improper purpose” (defined within the Act).

The repealed BC Bill 10 received criticism for this approach. Scott and Tollefson (2010) note it would rarely be easy, and it would often be impossible, for a defendant to prove the improper motivation of the plaintiff in commencing the lawsuit. Carefully-drafted pleadings could conceal the plaintiff’s intent to stifle the defendant’s public participation; the plaintiff’s motive could be hidden behind ostensibly-legitimate legal grounds. Proving intent might require the defendant to engage in a lengthy discovery process including document disclosure and examinations for discovery, or in some cases a trial. Placing this onus on the defendant and requiring the defendant to undergo these complex and expensive legal processes is inconsistent with the principles of efficiency and deterrence that underlie anti-SLAPP legislation (Moran Report (2010) at para 34).
Moreover, it is not the motivation of the plaintiff that is of primary importance, but rather the effect of the litigation on the defendant’s (and the general public’s) right to communicate on matters of public interest.

We suggest BC should instead adopt the approach taken by California, the US Federal bill, Ontario and Quebec. These laws require a defendant (applicant) to meet only an initial threshold of proving that its conduct or expression was on a matter of public interest, following which the onus shifts to the plaintiff to justify the lawsuit.

The California’s law uses strong language to support the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances (s. 425.16 (a)). Section 425.16 (b) outlines the process for a special motion to strike, and places a significant onus on the plaintiff (respondent). The defendant (applicant) needs only to show that the cause of action against it arises “from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue”, in which case the case “shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

The proposed US Federal bill requires a defendant (applicant) to show, prima facie, that the claim arises from an oral or written statement or other expression by the defendant, made in connection with an official proceeding or about a matter of public concern (s. 4204). The onus then shifts and the plaintiff (respondent) must establish a claim is “likely to succeed on its merits, in which case the motion shall be denied.”

Under Ontario’s Bill 52, the defendant (applicant) must only satisfy a judge “that the proceeding arises from an expression made by the person [the defendant] that relates to a matter of public interest.” Once a defendant has met this initial threshold, here again the onus shifts to the plaintiff (respondent). The plaintiff must satisfy the judge that “there are grounds to believe that the proceeding has substantial merit” and the defendant “has no valid defence in the proceeding”. The plaintiff must also persuade the judge that the balance of harm to the public interest lies in favour of the plaintiff (by dismissing the application and allowing the lawsuit to continue).

We recommend Ontario’s proposed Bill 52 as providing an effective process for the identification and dismissal of appropriate lawsuits (proposed amendment to the Courts of Justice Act at s. 137.1 (3) and (4)):

Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

No dismissal
(4) A judge shall not dismiss a proceeding under sub- section (3) if the responding party satisfies the judge that,
1. (a) there are grounds to believe that,
1. (i) the proceeding has substantial merit, and
2. (ii) the moving party has no valid defence in the proceeding; and
(b) 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.

In our view, the Ontario bill provides a sensible and practical process for the identification and dismissal of appropriate lawsuits. The onus properly lies on the defendant (applicant) to bring the motion and to meet an initial (albeit low) threshold. The heavier onus lies on the plaintiff (respondent) to justify its claim. The balancing of the public interest in proposed s. 137.1(4)(1)(b) should provide some assurance that the process will not be abused.

1.4. Provisions that reduce the economic burden of defending against SLAPP suits

Provisions designed to financially indemnify the target of a SLAPP suit are essential to an effective anti-SLAPP bill. Even the weakest of claims can be hugely expensive to defend. The financial imbalance that typically exists between the parties presents an obvious advantage to the wealthier plaintiff, which will achieve its goal of dissuading the defendant (and others) from continuing with the targeted activity whether or not the claim has any merit at all. An effective anti-SLAPP bill must combat this reality with sufficient and dependable provisions for awarding special costs to a successful defendant (applicant).

Existing rules of court do not provide adequate protection for potential and actual targets of SLAPP suits. With respect to costs, successful litigants typically only receive a fraction of their actual legal expenses at the conclusion of a lawsuit, an award known as “party and party costs”. The rules provide judges with the ability to award “special costs” (or full indemnification of legal costs) only in cases involving reprehensible conduct, also described as “scandalous or outrageous” conduct (American Creek Resources Ltd. v. Teuton Resources Corp., 2014 BCSC 2214 at para. 11).

The primary purpose of special costs under the existing rules is to impose punishment, not to indemnify the successful litigant (American Creek at para. 14). A court must exercise restraint in awarding special costs; the party seeking special costs must demonstrate exceptional circumstances; and not all types of misconduct are captured by the rule (Westsea Construction Ltd. v 0759553 BC Ltd., 2013 BCSC 1352 at para 73).

The provision of special costs in an anti-SLAPP bill also creates a financial penalty on the plaintiff for bringing a SLAPP suit, which ought to discourage potential plaintiffs from bringing these suits. Ecojustice and the Canadian Environmental Law Association (2010) note that discouraging potential plaintiffs from filing SLAPP suits is the most effective way to provide protection to potential targets (p. 23). Such protection also reduces the “chill factor” resulting from a SLAPP suit by eliminating the overhanging threat of financial harm potentially caused to would-be defendants.

All the legislation we reviewed all includes provisions for special costs to successful defendants (applicants), but of course there is some variation in the approaches taken. The repealed BC Bill 10 included permissive language, and provided that the successful defendant (applicant) “may obtain…all reasonable costs and expenses incurred” (s. 5(2)(a)(ii)). The Quebec law is also permissive: “the court may order a provision for costs
to be reimbursed” (s.54.4), as is the Australian law. Stronger language is found in the California law, which states that a successful defendant “shall be entitled to recover his or her attorney’s fees and costs” (s. 425.16. (c) (1)). The proposed US Federal bill contains mandatory language: “a court shall award [to a successful defendant] litigation costs, expert witness fees, and reasonable attorneys fees” (s. 4207(A)), as does the proposed BC Bill M 223: “The Court must award an applicant who prevails in a motion under this Act (a) fees and costs on a special basis” (s. 7(1)(a)).

Interestingly, in addition to permitting an award of special costs, the repealed BC Bill 10 also included provisions permitting a judge to order “security for costs” where a defendant (applicant) was unable to meet the higher threshold for dismissal but was able to establish that there was a “realistic possibility” the case was a SLAPP suit (ss. 5(3) and (4)). Security for costs is typically a lump-sum amount determined by the court and paid by the plaintiff into court until the conclusion of the case, either by settlement or judgment, to cover the defendant’s legal costs. This provision in Bill 10 allowed a judge to grant the defendant some protection despite the defendant’s inability to prove the plaintiff’s “improper purpose”, and was to be commended in its context. However, given our recommendation for an entirely different process for dismissal, including a reverse onus on the plaintiff to justify the case, we do not recommend the inclusion of security for costs provisions in the proposed BC bill.

The Moran Report recommended a mandatory special costs award to a successful defendant (applicant) under anti-SLAPP legislation (at para. 44):

If the plaintiff fails to satisfy the court as to the substantive merit of the plaintiff’s case, the action should be dismissed with costs on a full indemnity basis. It is important that the special procedure provide for full indemnification of the successful defendant’s costs to reduce the adverse impact on constitutional values of unmeritorious litigation, and to deter the commencement of such actions. The prospect of a full indemnity award should also encourage counsel to represent defendants on a contingency fee basis, where the defendants may otherwise not have sufficient means to retain counsel…

Ontario’s subsequently-proposed Bill 52 contains mandatory special costs language, but with an interesting release valve: while a successful defendant is entitled to special costs by default, a judge may alter the award in appropriate circumstances.

We recommend Ontario’s proposed Bill 52 as providing an appropriate balance of competing concerns with respect to indemnification of successful defendants (proposed amendment to the Courts of Justice Act at S. 137.1(7)):

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

It remains to be seen whether this provision will provide the necessary certainty with respect to costs in most SLAPP cases, however, it is perhaps more in keeping with the general deference afforded to judges in awarding costs. Ultimately the success or failure of this provision in achieving the goals of protection from and prevention of SLAPP will depend on how judges are guided by the language of this section and the bill as a whole.

Interestingly, the proposed Ontario Bill 52 provides that an unsuccessful application does not automatically entitle the plaintiff (respondent) to costs (proposed s. 137.1(8)). This is presumably in recognition of the weaker financial position in which most SLAPP defendants find themselves, and to reduce any disincentive felt by defendants from bringing applications for an early dismissal arising from the normal costs rules.

1.5. Additional Financial Disincentives for Bringing SLAPP Suits

In additional to costs provisions, which serve to indemnify the target of a SLAPP suit, the legislation we reviewed contains a variety of additional financial disincentives designed to deter potential SLAPP-suit plaintiffs and compensate potential SLAPP-suit targets. These include provisions encouraging or expanding judges’ powers to award compensatory and punitive damages. Compensatory damages are typically designed to compensate a party for actual harm incurred, whereas punitive (or exemplary) damages are designed to punish a party for egregious conduct.

Scott and Tollefson (2010) note that under existing rules of court, awards of punitive damages are very rare, granted “in only the most egregious of circumstances, where a party’s actions offend community standards.” They praised the old BC Bill 10 for including a provision encouraging judges to award punitive damages in appropriate circumstances (p. 55).

By recognizing a broader judicial discretion to award punitive damages in SLAPP cases, the PPPA clearly underscored that the highhanded use of non-meritorious litigation to threaten and intimidate individuals exercising their democratic rights is unacceptable and not to be tolerated.

The Moran Report recommended Ontario’s anti-SLAPP bill should contain provisions for damages, but only in circumstances where the plaintiff had brought the claim in bad faith or with an improper motive (para. 46):

…the court should not be required to make findings as to bad faith or improper motive on the part of the plaintiff in deciding a motion under the special procedure. If in a particular case, however, the court is satisfied on the record before it that an action has been brought in bad faith or for an improper motive, such as punishing, silencing or intimidating the defendant rather than any legitimate pursuit of a legal remedy, an additional remedy should be available for this improper conduct. In such circumstances, the court should have the power to award damages to the defendant in such amount as is just.

In other words, the Moran Report did not recommend an award of punitive damages in every case where the defendant was able to succeed on a motion to dismiss. Rather, punitive damages should remain an option for a judge when satisfied the lawsuit was brought with an improper purpose.

Ecojustice (2010) recommended that anti-SLAPP legislation in Ontario should contain mandatory provisions for punitive damages on all successful applications, and, notably, provisions requiring directors and officers of a corporate plaintiff to personally pay damages. These recommendations were not adopted by the Moran Report or incorporated into Ontario’s proposed Bill 52.

Consistent with the Moran Report, the proposed Ontario Bill 52 does include a provision for “damages” (unspecified), to be awarded in cases brought “in bad faith or with an improper purpose” in an amount deemed appropriate to the judge (proposed s. 137.1(9)). In BC, the repealed Bill 10 included a provision allowing an award of punitive damages against a plaintiff, notably, either on the defendant’s motion or on the court’s own motion (s. 5(2)(b)). Quebec’s law permits a court to award “damages in reparation for the prejudice suffered by another party, including the fees and extrajudicial costs incurred by that party, and, if justified by the circumstances, award punitive damages” (s. 54.4). The Australian law, interestingly, does not provide for punitive damages per se but does include a provision permitting a judge to levy a penalty to the state, if satisfied the lawsuit was brought with an improper purpose (s. 9(2)).

The proposed BC Bill M 223 includes a unique provision for damages (s. 8). Under this bill, damages would be available only where a defendant (applicant) was both successful on the motion to dismiss (having proven the claim was brought with an improper purpose) and successful at persuading the judge the plaintiff’s conduct met an even higher threshold of malfeasance. The plaintiff must have filed the action “for the purposes of harassment; inhibiting the [defendant’s] exercise of protected rights under this Act; or otherwise injuring the person”. If this higher threshold is met, “the Court must award the [defendant] with actual damages, and may award punitive damages.”

In our view, the higher threshold of proposed BC Bill M 223 places a heavy burden on a SLAPP defendant. As argued above, it is rarely easy, and often impossible, for a defendant to prove the plaintiff’s motivation for filing a lawsuit. However, we commend the bill for using mandatory language in respect of compensatory damages: in our view, where a plaintiff has improperly brought an action, the defendant should be compensated for damages incurred as a result of that action. And while the law should strongly encourage punitive damage awards in appropriate cases, judges should ultimately retain the discretion to award punitive damages. A provision for mandatory punitive damages might discourage findings of malfeasance by judges in all but the most egregious of cases.

Given our earlier recommendation that BC adopt the reverse-onus process for identification and dismissal of appropriate cases used in Ontario’s proposed Bill 52, we cannot recommend the existing language of BC’s proposed Bill M 223 without some modification.

1.6. A Statutory Defence of Qualified Privilege Applicable to Defamation Claims

SLAPP suits are often founded on the tort of defamation, which is considered to be a “plaintiff friendly” tort and which has evolved such that it is particularly suitable to SLAPP suits. This is because it imposes strict liability on a defendant: once a plaintiff is able to show that the defendant’s published communication caused harm, the onus shifts to the defendant to justify the communication based on the established defences to defamation.

In response to this reality, the Moran Report recommended that civil actions targeting communications on matters of public interest should generally be subject to a special procedure. It recommended that there be statutory protections to a defendant in a defamation suit, where that person had “a direct interest in a subject of public interest” and made “statements on that subject to persons who also have a direct interest in that subject” (para 74).

This general approach had been taken in the repealed BC Bill 10, which provided some measure of protection to the target of SLAPP suits founded on the tort of defamation (at s. 3). It defined “public participation” as an “occasion of qualified privilege” in which the defendant is provided with substantive protection from a claim in defamation.

Following the Moran Report, Ontario’s proposed Bill 52 would amend that province’s Libel and Slander Act by adding the following section, which we recommend be adopted for the BC context:

Communications on Public Interest Matters Application of qualified privilege

25. Any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons.

In BC, the Libel and Slander Act, RSBC 1996, c 263 could similarly be amended to include the statutory defence of qualified privilege in appropriate cases.

2. Additional Elements of an Effective Anti-SLAPP Bill

In addition to the elements discussed above, the legislation we reviewed contained a number of additional elements that we suggest would be suitable for an effective, comprehensive BC law, such as provisions:

1. to require the timely hearing and disposition of any motions for dismissal brought under the act (for example, within 60 days, as per the Ontario proposed Bill 52, s. 137.2(2) and repealed BC Bill 10, s. 4(2)(i));

2. to prevent any further steps in the litigation including discovery until the disposition of a motion for dismissal (Ontario proposed Bill 52, s. 137.1(5); California Code of Civil Procedure, s. 425.16 (g); US proposed Federal Bill, s. 4203);

3. to prevent the plaintiff from amending its pleadings pending the disposition of a motion for dismissal (Ontario proposed Bill 52, amendment to the Courts of Justice Act at s. 137.1(6));

4. to allow for an order setting conditions for the furtherance of the action, requiring undertakings from a party, suspending the action for a period, or requiring the action proceed with case management (Quebec’s Bill 9, s. 54.3(4));

5. to limit the time permitted for cross examination (Ontario proposed Bill 52, amendment to the Courts of Justice Act at s. 137.2(4));

6. to allow for an order for damages to be payable personally by the directors and officers of the legal entity that brought the action (Quebec’s Bill 9, s. 54.6)

7. to allow for an order prohibiting the plaintiff from commencing future legal proceedings without leave of the court (Quebec’s Bill’s 9, s. 54.5);

8. to allow for an order staying related administrative proceedings that were also commenced by the plaintiff (Ontario proposed Bill52, amendment to the Courts of Justice Act at 137.4(1));

9. to require any settlement, discontinuance or abandonment of the action be effected only with the approval of the court and on terms the court considers appropriate (repealed BC Bill

10, s. 5(4)(b)); 10. to require an appeal of a decision made under the Act to be heard as soon as practicable (Ontario proposed Bill 52, amendment to the Courts of Justice Act at 137.3);

11. to require a Ministerial review of the legislation at a specified time (Australia’s Protection of Public Participation Act at s. 11);

12. to require a public record to be created containing information and data, available to the public, on the applications brought pursuant to the act (as per California Code of Civil Procedure, s. 425.16(j)).

Other recommendations from the commentary we reviewed, that had not yet been adopted into any of the legislation we reviewed, included provisions:

13. to establish a publicly-administered fund to provide financial assistance to SLAPP defendants (Ecojustice (2010) at p. 22); and

14. to permit a judge to make an award of treble damages in particularly egregious cases of plaintiff misfeasance (Shragge (2011) at p. 11).

Summary

The implementation of legislation based on these principles will at last protect public participation in B.C. and ward off the chill that would otherwise drastically affect democracy if not unchecked.(4) As West Coast Environmental Law concludes in their submission to the Ministry of the Attorney-General’s Consultation Document of 2000, anti-SLAPP legislation is the best method to deal with the problem of malicious lawsuits that have the effect and/or are designed to prevent public participation. In the words of the WCEL: "While the Rules of Court may be an appropriate place to deal with technical matters related to the administration of justice, law reforms addressing substantive rights as important as this should be implemented through the legislative process where they will receive full public scrutiny and debate..."

The following is the Anti-SLAPP Act, 2015 introduced in the BC Legislature in May 2015 by MLA for Nanaimo, Leonard Krog.


Bill M223, Anti-SLAPP Act, 2015, 4th Sess, 40th Leg, British Columbia, 2015.

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Interpretation

1 For the purposes of this Act,

“action” means any legal action for damages brought in a court of law, and includes a counter-claim;
“applicant” means a person who, pursuant to this Act, brings a motion to dismiss an action;
“government” includes all federal, provincial and municipal government departments, agencies and officials;
“person” includes any non-profit organization, trade union or group, whether or not incorporated, and any director or member of any organization that is subjected to an action to which this Act applies;
“respondent” means a person who is required to respond to a motion to dismiss under this Act.

Right of participation

2 Every person has the right to participate freely in the process of government including the right to petition and communicate with government, and to freedom of speech, association and demonstration on matters of public policy.
Prohibition of action

3 Subject to sections 6 and 9, no action shall be brought or maintained against a person for any act arising from or in furtherance of rights protected by this Act.

Motion to dismiss
4 A person who alleges that an action or claim has been brought for the purpose of limiting a person’s enjoyment or use of the right in section 2 may, at any time, bring a motion to dismiss the action.

5 (1) A motion to dismiss under section 4
(a) may be brought on seven days notice;
(b) must be given priority by the Court;
(c) may be decided on the basis of pleadings or affidavit evidence; and
(c) may be decided without discovery.

(2) Where a motion to dismiss is brought prior to or during discovery, discovery must be suspended, pending the motion.

6 (1) A motion must be granted where the applicant establishes that the action was brought in order to deprive a person of the free and proper use and enjoyment of the rights accorded in section 2.
(2) A motion to dismiss must not be granted where the Court finds that
(a) the action is not one to which this Act applies;
(b) the motion of the applicant lacks any reasonable basis in fact; or
(c) the applicant’s primary purpose is to harass the respondent, or to pursue some other private purpose other than the free exercise of the rights protected by this Act.

7 (1) The Court must award an applicant who prevails in a motion under this Act
(a) fees and costs on a special basis; or
(b) punitive costs, as deemed appropriate by the Court, and costs.

(2) The Court may hear evidence, order discovery, or make any other such consequential orders as the Court may deem just, in order to meet the policy objectives of this Act.

(3) Where the Court finds that
(a) the motion of the applicant lacks any reasonable basis in fact; and
(b) the applicant’s primary purpose was to harass the respondent, or pursue some other private purpose other than the free exercise of the rights protected by this Act,
the Court must not grant the motion to dismiss.

Damages
8 (1) A person may petition the Court for damages in conjunction with a motion under this Act.
(2) If a motion is granted and the court is satisfied that the Plaintiff filed the cause of action, claim, or counterclaim for the purposes of
(a) harassment,
(b) inhibiting the person’s exercise of protected rights under this Act, or
(c) otherwise injuring the person,
the Court must award the person with actual damages, and may award punitive damages.

Exclusion for deliberate acts

9 This Act does not apply to an action against a person for the deliberate destruction of property or the deliberate infliction of physical injury to other persons.


Notes

(1.) Bill 52, An Act to amend the Courts of Justice Act, the Libel and Slander Act and in order to protect expression on matters of public interest, 1st Sess, 41st Leg, Ontario, 2014 (second reading March 23, 2015) and Bill M223, Anti-SLAPP Act, 2015, 4th Sess, 40th Leg, British Columbia, 2015.

(2) The Environmental Defence Working Group submission is based on Neil Chantler's (2015) comprehensive study of anti-SLAPP legislation, academic reports, recommendations of law associations and groups and on-going cases. Chantler's work was funded by grants from the Environmental Defence Resolution Fund of the West Coast Environmental Law Foundation and Alan Dutton, a defendant in Trans Mountain Pipeline ULC v. Dutton et al.

(3) The EDWG will post the details of the suggestions for legislation along with supporting references. Click here (coming) for further commentary and the analysis of important SLAPP suits across Canada.

Legislation Cited

Bill 10, Protection of Public Participation Act, 5th Sess, 36th Leg, British Columbia, 2001 (third reading 5 April 2001).

Bill 9, An Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate, 1st Sess, 39th Leg, 2009 (assented to 4 June 2009).

Bill 52, An Act to amend the Courts of Justice Act, the Libel and Slander Act and in order to protect expression on matters of public interest, 1st Sess, 41st Leg, Ontario, 2014 (second reading March 23, 2015).

Bill M223, Anti-SLAPP Act, 2015, 4th Sess, 40th Leg, British Columbia, 2015.

References

Anti-SLAPP Advisory Panel (Ontario): Report to the Attorney General, "Moran Report". 2010.

Canan, Penelope and George W. Pring. 1988. "Strategic Lawsuits Against Public Participation." Social Problems, Vol. 35, No. 5

__________. 1988. "Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches." Law and Society Review, Vol. 22, No 2.

Chantler, Neil. 2015. Suggestions for a New and Improved Protection of Public Participation Act for BC Vancouver, Environmental Defence Working Group.

Landry, Norman. 2014. Threatening Democracy: SLAPPS and the Judicial Repression of Political Discourse. Winnipeg, Fernwood Book Publishing.

Pring, George and Penelope Canan. 1996. SLAPPS: Getting Sued for Speaking Out.Philadelphia, Temple University Press.

Scott, Michaelin and Chris Tollefson. 2010. "Strategic Lawsuits Against Public Participation: The British Columbia Experience." Review of European and Community International Environmental Law 19(1): 45-57.

Sheldrick, Byron. 2014. Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression.Wilfred Laurier University Press.

Shragge, Jeremy E. 2011. “Recommended Legislative Measures to Counter Strategic Lawsuits Against Public Participation.”

Wilkins, Hugh, et al. 2010. "Breaking the Silence: The Urgent need for anti-SLAPP legislation in Ontario." Canadian Environmental Law Association and EcoJustice.

Wilts Rodney, Oliver Brandes and Bram Rogachevsky. 2002. The West Coast Environmental Law SLAPP Handbook.Vancouver, West Coast Environmental Law.

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