A free-standing statute with focused remedies such as an expedited review process and a statutory recognition of qualified privilege anchor a series of comprehensive recommendations made by a blue-ribbon panel of legal experts who are calling on the Ontario government to enact legislation to crack down on strategic lawsuits against public participation, otherwise known as SLAPPs.
In the wake of rising concerns over the growing use of litigation to silence critics who speak out on matters of public concern, notably in environmental disputes, the advisory panel appointed by the Attorney General of Ontario recommends new legislation, distinct from existing rules, that would “help to encourage” courts to apply remedies to protect expression on matters of public interest from undue interference.
The 26-page report, made public just before the Christmas holidays, points out that while there is “no question” that in principle current law – be it in common law, the Courts of Justice Act and the Rules of Civil Procedure — offers remedies against abuses of processes, these remedies are “not effective” as the courts are often reluctant to dismiss cases on preliminary motions based on affidavit evidence and oral argument.
At present, only Quebec has anti-SLAPP legislation, which was adopted in 2009. But there is mounting pressure in Ontario to introduce anti-SLAPP legislation. More than 60 Ontario municipalities, including Mississauga and Hamilton, have passed resolutions calling for a law to rein in SLAPPs. A 2008 report of the Environmental Commissioner of Ontario stressed the need for legislation to end SLAPPs. More recently still, a bulletin from the Lawyer’s Professional Indemnity Company (LawPRO) cautioned lawyers engaged in public advocacy work that they might need supplementary liability insurance because of the increasing risk of SLAPP legislation – a development that the advisory panel found “noteworthy. And out of the 31 written submissions the panel received and eight oral presentations it heard, the overwhelming majority supported the introduction of special legislation against SLAPPs.
“There seemed to be quite a broad sense that something needed to be done about this issue, and so we certainly considered that,” remarked Mayo Moran, the chair of the anti-SLAPP advisory panel and dean of the faculty of law at the University of Toronto.
Indeed, the panel was “persuaded” that threats of lawsuits for speaking out on matters of public interest, coupled with the number of actual lawsuits, “deter significant numbers” of people from participating in discussions of public interest. “The Panel believes that the value of public participation is sufficiently weighty that the government should take active steps to promote it by enacting targeted legislation,” said the report.
The advisory panel, however, does not go so far as to recommend the creation of a new legal right to public participation that would be protected by the new statute. Nor was it compelled to recommend the so-called improper purpose test, which delves into the motives a plaintiff may have for bringing an action, as is the case in Quebec. Judging the motive of a plaintiff “is really very difficult, and needless because to our mind the real issue is what is the effect of the proceeding,” said Brian MacLeod Rogers, a veteran Toronto media lawyer who sat on the panel.
Instead its recommendations include a test for courts to quickly recognize a SLAPP, with the new legislation broadly defining the scope of protection to encompass communications on matters of public interest – and not be limited to communication directed to a public body as is the case with some American statutes.
Under the two-prong test, the defendant would have the burden of proving that the case involves the protected activity of public participation. If the subject matter of the action is shown by the defendant on a balance of probabilities to be communication on a matter of public interest, the onus would then be shifted to the plaintiff to prove the suit has substantial merit, that there are substantial grounds to believe that no valid defence exists, and that the harm suffered by the plaintiff outweighs the harm done to the public interest (especially in freedom of expression) by allowing the action to continue.
The advisory panel also recommends that remedies against “inappropriate litigation” affecting public participation be available quickly and be distinct from that which is now available under the Rules of Civil Procedure. Under the recommendations, the courts should hear a motion for a remedy for a SLAPP within 60 days. Until the motion for a remedy is decided, no further steps in the proceeding may be taken except possibly an injunction in the discretion of the court where the plaintiff can establish the fact or serious threat of irreparable harm. The unsuccessful party should have a fast track right to appeal to the Court of Appeal, proposes the advisory panel. If the plaintiff fails to satisfy the court, the action should be dismissed with costs on a full indemnity basis, and the court should have the power to award punitive damages.
“We have done relatively little in terms of recommendations to substantive law,” said Peter Downard, a panel member who is an expert on defamation matters. “Our primary emphasis has been to recommend an expedited procedure which indicates the policy of the government with respect to unreasonable civil litigation that unreasonably restricts expressions of public interest. Having established that vehicle we have left a great deal of discretion to the courts to administer the procedure and to apply the substantive law as the courts think, which is exactly what the courts should be doing.”
The panel also recommended that qualified privilege should be extended to persons with a “direct interest” in a matter of public interest who makes statements on that subject to persons who also have direct interest on the subject. “In those circumstances such statements should be privileged in the absence of proof of malice in the legal sense,” said the report.
“What we recommended was a codification of qualified privilege in the public participation context, and we thought it was consistent with existing law and that if the matter were brought to adjudication under common law it would be recognized,” said Downard, senior litigation counsel at Fasken Martineau. “We thought it would be useful for the legislator to simply crystallize that and state it.”
Organizations such as the Public Interest Advocacy Centre (PIAC) welcomed the proposals. “We’re happy that there’s finally some movement towards taking this seriously,” remarked John Lawford, a research analyst and lawyer with PIAC. “In terms of encouraging people to be public interest advocates in their own right, it’s a very good thing. It doesn’t immunize anyone from being sued if they are actually libeling someone. So I think it’s a good balance.”
But the true test remains, if the Ontario government does forge ahead with a new free-standing statute, how the courts will interpret it.
“There is no doubt that a great deal of discretion is left to the judiciary to act in these situations,” said Rogers. “We have given in the report the tools that a judge can use to act on. But it’s that discretion of the judiciary that ultimately will make this kind of legislation effective or not.”