Canada: Anti-SLAPP Legislation Introduced In Ontario

Anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation has once again been introduced in Ontario. Now known as Bill 83, the draft Protection of Public Participation Act, 2013 received its first reading last week at Queen's Park. The new bill comes on the heels of previous private members legislation tendered in 2008 and 2012 that did not make it into law.

Bill 83 Proposes a Motion for Early Dismissal

Among other things, Bill 83 proposes to allow the early dismissal of a proceeding if the moving party (i.e., the defendant in a defamation claim) establishes that the proceeding "arises from an expression made by the person that relates to a matter of public interest".

While Bill 83 does not state what constitutes a matter of public interest, an "expression" is defined as "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."

If the moving party discharges their burden, the onus shifts to the responding party (i.e., the plaintiff who commenced the defamation suit) to satisfy the judge:

1. There are grounds to believe that,

1. The proceeding has substantial merit, and

2. The moving party has no valid defence in the proceeding; and

2. 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.

It is clear that the government intends for these motions to be dealt with promptly. According to the draft bill, the early dismissal motion is to be heard within 60 days of filing and any cross-examinations are limited to one day for each party.

It is also clear that the stakes will be very high for plaintiffs if Bill 83 is passed. The draft bill provides that the pleadings may not be amended to avoid defending the motion and, if the proceeding is dismissed, plaintiffs will be required to pay the full indemnity costs of the defendant. Furthermore, the responding party may be required to pay damages if the Judge determines the proceeding was brought in bad faith or for an improper purpose.

In contrast, the stakes are not quite as high for defendants. If the proceeding is not dismissed, the bill provides, contrary to the ordinary rules, that the responding party is not automatically entitled to costs unless the Judge determines that such an award is appropriate. Further, there is no similar risk that defendants would be required to pay damages if the Judge determines that there is no valid defence or that the early dismissal motion was brought in bad faith.

Summary Judgment by Another Name?

Essentially, Bill 83 creates an early escape hatch for defendants in defamation proceedings where the expression at issue concerns public interest subject matter. According to existing caselaw, matters that concern the public interest are not synonymous with matters that merely interest the public. Rather, the legislation is aimed at protecting speech on matters of public debate such as municipal planning, environmental issues, political matters, etc.

If Bill 83 is passed in its current form, it is likely that the main battleground on an early dismissal motion would be whether the expression at issue concerns a matter of "public interest". As a matter of law, defamation suits are intended to protect personal reputations. However, personal reputations are frequently attacked when significant matters of public debate are at issue. Accordingly, the line is often blurred between an individual's personal reputation and their public conduct.

So, hypothetically, if a major Canadian newspaper alleged that the Mayor of a large Ontario municipality abused alcohol or drugs, that mayor's defamation action might be subject to a motion for early dismissal under Bill 83 on the basis that the conduct of the mayor and his sobriety is a matter of public interest.

Assuming the court agreed, the onus would then shift to the mayor to establish "grounds to believe" that his defamation claim has "substantial merit", that the defendant has is no valid defence in the proceeding (ex. that the statements about his sobriety are untrue), and that the harm to his reputation outweighs the public interest in protecting the statements alleged to be defamatory.

If the mayor were to be successful in resisting the motion, not only would he end up paying the other side's full indemnity costs but he could possibly end up paying damages. In addition, the action for defamation would be entirely dismissed without a hearing on the merits or the benefit of discovery and a full evidentiary record. In that context, the motion for early dismissal looks a lot more like a simplified motion for summary judgment.

Thicker Skin Required

While Bill 83 has its genesis in disputes arising in high profile environmental and municipal planning disputes, the proposed legislation will surely be of interest to defendants in garden variety defamation claims.

The issue for those with reputations in the public and private sphere will be whether the comments and surrounding publicity are worth risking costs and the optics of having their defamation suit dismissed. For many involved in matters of public interest, Bill 83 would suggest a thicker skin and second thought is required before taking steps to defend their reputation.

The full text of Bill 83 can be viewed here:

http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session2/b083.pdf

Background material provided by the Office of the Attorney General can be viewed here:

http://news.ontario.ca/mag/en/2013/06/ontario-protecting-freedom-of-expression.html

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions