Canada: Bill 83: Anti SLAPP Law At Last

Last Updated: June 11 2013
Article by Dianne Saxe

Ontario is finally introducing an anti SLAPP law later today, the Public Participation Act, 2013. We worked hard to reach this result, through the Ontario Bar Association, and in cooperation with other stakeholders. Lets hope it is acceptable to the NDP and will be passed with their support.

Summary:

What is a strategic lawsuit?

A strategic lawsuit is a lawsuit that is used to limit expression on matters of public interest.

In most cases, one party claims that another has damaged his or her reputation, usually through a claim of defamation (libel or slander).

How would the legislation work?

Under the proposed law, there would be a fast-track review process for lawsuits alleged to be strategic in nature, rather than legitimate defamation claims. This would include the "legal test" that a judge would use to quickly determine whether or not a case should be dismissed or if it should be allowed to proceed in court.

A request to dismiss would have to be heard by the court within 60 days. This would help minimize wasted time and resources for plaintiffs, defendants and the courts on questionable claims, while allowing legitimate complaints to proceed in a timely manner.

Text of Bill 83:

Bill 83 2013

An Act to amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest

Note: This Act amends or repeals more than one Act.  For the legislative history of these Acts, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Courts of Justice Act

1.  Clause 19 (1) (a) of the Courts of Justice Act is repealed and the following substituted:

(a)  a final order of a judge of the Superior Court of Justice that is described in subsection (1.1) or (1.2), other than an order made under section 137.1;

2.  The Act is amended by adding the following sections:

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)

Dismissal of proceeding that limits debate

Purposes

137.1   (1)  The purposes of this section and sections 137.2 to 137.5 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.

Definition, "expression"

(2)  In this section,

"expression" means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

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 subsection (3) if the responding party satisfies the judge that,

(a)  there are grounds to believe that,

(i)  the proceeding has substantial merit, and

(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.

No further steps in proceeding

(5)  Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

No amendment to pleadings

(6)  Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a)  in order to prevent or avoid an order under this section dismissing the proceeding; or

(b)  if the proceeding is dismissed under this section, in order to continue the proceeding.

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.

Costs if motion to dismiss denied

(8)  If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

Damages

(9)  If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

Procedural matters

Commencement

137.2   (1)  A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced.

Motion to be heard within 60 days

(2)  A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court.

Hearing date to be obtained in advance

(3)  The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served.

Limit on cross-examinations

(4)  Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall be limited to one day for each party.

Same, extension of time

(5)  A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice.

Appeal to be heard as soon as practicable

137.3   An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal.

Stay of related tribunal proceeding

137.4   (1)  If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal.

Notice

(2)  The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

(a)  notice of the stay; and

(b)  a copy of the notice of motion that was filed with the tribunal.

Duration

(3)  A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4).

Stay may be lifted

(4)  A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

(a)  the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

(b)  the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay.

Same

(5)  A motion under subsection (4) shall be brought before a judge of the court hearing the motion under section 137.1 or, if the motion is under appeal, its appeal.

Statutory Powers Procedure Act

(6)  This section applies despite anything to the contrary in the Statutory Powers Procedure Act.

Application to commenced proceedings

137.5   For greater certainty, sections 137.1 to 137.4 apply in respect of proceedings commenced before the day section 2 of the Protection of Public Participation Act, 2013 came into force.

Libel and Slander Act

3.  The Libel and Slander Act is amended by adding the following section:

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.

Statutory Powers Procedure Act

4.  Subsections 17.1 (7), (8), and (9) of the Statutory Powers Procedure Act are repealed and the following substituted:

Submissions must be in writing

(7)  Despite sections 5.1, 5.2 and 5.2.1, submissions for a costs order, whether under subsection (1) or under an authority referred to in subsection (6), shall be made by way of written or electronic documents, unless a party satisfies the tribunal that to do so is likely to cause the party significant prejudice.

Commencement and Short Title

Commencement

5.  This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

6.  The short title of this Act is the Protection of Public Participation Act, 2013.

EXPLANATORY NOTE

The Bill amends the Courts of Justice Act to add sections 137.1 to 137.5, which create a process for getting a proceeding against a person dismissed if it is shown that the proceeding arises from an expression made by the person that relates to a matter of public interest (section 2 of the Bill). Subsection 137.1 (1) sets out the purposes of the new sections.

Under subsection 137.1 (3), a person against whom a proceeding is brought may bring a motion to get the proceeding dismissed on the basis that the proceeding arises from an expression made by the person that relates to a matter of public interest (subsection 137.1 (2) defines "expression" for the purposes of section 137.1). If the judge hearing the motion is satisfied of this, he or she must dismiss the proceeding unless the party who brought the proceeding satisfies the judge that the proceeding should not be dismissed because the conditions in subsection 137.1 (4) are met. These conditions include that there are grounds to believe that the proceeding has substantial merit and that the person against whom the proceeding was brought has no valid defence in the proceeding. Once a motion under section 137.1 is brought, no further steps may be taken in the proceeding until the motion is finally disposed of (subsection 137.1 (5)). Section 137.1 also sets out restrictions on amending pleadings in the proceeding (subsection (6)) and sets out rules for awards of costs and damages on the motion to dismiss (subsections (7), (8) and (9)).

Section 137.2 deals with various procedural aspects of the motion to dismiss under section 137.1. These include that the motion may be brought at any time after the proceeding to which it relates has commenced (subsection (1)); that the motion must be heard within 60 days (subsection (2)); and that cross-examination on documentary evidence is limited to one day for each party, unless a judge orders otherwise (subsections (4) and (5)).

An appeal of a motion under section 137.1 must be heard as soon as practicable (section 137.3). Section 1 of the Bill re-enacts clause 19 (1) (a) of the Act to provide for appeals of motions made under section 137.1 to be heard by the Court of Appeal.

Section 137.4 creates a process by which a person who brought a motion under section 137.1 can have a tribunal proceeding automatically stayed if he or she believes that the tribunal proceeding is related to the same matter of public interest that he or she alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1. The stay remains in effect until the motion under section 137.1 is finally disposed of (subsection (3)); however, a judge may, on motion, order that it be lifted earlier if one of the conditions in subsection 137.4 (4) is met.

Section 137.5 specifies that sections 137.1 to 137.4 apply to a proceeding even if it was commenced before the day that section 2 of the Bill comes into force.

The Bill also amends the Libel and Slander Act to add section 25, which states that 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 (section 3 of the Bill).

Finally, the Bill amends section 17.1 of the Statutory Powers Procedure Act to provide that submissions for a costs order in a proceeding must be made in writing, unless a tribunal determines that to do so is likely to cause a party to the proceeding significant prejudice. In addition, three spent subsections in that section are repealed (section 4 of the Bill).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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