On November 3, 2015, the Protection of Public Participation
Act, 2015 (the "PPPA") received Royal
Assent and came into force. The PPPA – which amends
the Courts of Justice Act, Libel and Slander Act,
and Statutory Powers Procedure Act – marks
Ontario's first successful attempt to enact legislation dealing
with so-called strategic lawsuits against public participation
(more commonly known as "SLAPPs"). Ontario follows the
lead of Quebec, which amended its Civil Code in 2009 to
deal with SLAPPs and, until the coming into force of the
PPPA, was the only province in Canada with active
anti-SLAPP legislation. The scheme created by the
PPPA applies to all lawsuits commenced on or after
December 1, 2014.
SLAPPs are lawsuits intended to penalize members of the public
who participate in public affairs and deter others from doing so.
Although anecdotal evidence provides some support for preventing
such litigation, there does not appear to be any hard empirical
data that SLAPPs represent a serious problem. It is easy to
characterize almost any litigation as a SLAPP.
Under the new section 137.1 of the Courts of Justice
Act, a party against whom a proceeding is brought may bring a
motion to dismiss an action as a SLAPP. A judge must dismiss the
proceeding if he or she is satisfied "that the proceeding
arises from an expression made by the person that relates to a
matter of public interest", unless the responding party shows
that (i) there are grounds to believe the proceeding has
substantial merit, (ii) there are grounds to believe the moving
party has no valid defence in the proceeding and (iii) 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.
Although the new legislation appears to set out a structured
process, the real question is what level of scrutiny courts will
apply on these motions. "Public interest" is a vague and
fairly low threshold to meet, such that the burden may easily shift
to the responding party to fulfill what appears to be a much more
stringent test. The task imposed on the responding party is made
more difficult by timing, as these motions will be brought
pre-discovery before the plaintiff has an opportunity to test his
or her case.
This is especially problematic given the high stakes of these
motions. Where a proceeding is dismissed on this basis, the moving
party generally is entitled to full costs on the motion and in the
proceeding, while the responding plaintiff generally is not
entitled to costs even if the case is found not to be a SLAPP and
proceeds to trial (subject to the discretion of the judge). In
addition, judges have discretion to award damages where they find
that the proceeding was brought in bad faith or for an improper
purpose. Moreover, such motions can be used tactically to delay the
plaintiff's claim from advancing.
Given that a proceeding found to be a SLAPP seems to inherently
be for an improper purpose, exposure for a plaintiff is high, while
there appears to be minimal risk to defendants in trying their luck
under these provisions. Potential plaintiffs may be deterred from
bringing legitimate defamation lawsuits.
Further, the legislation can be employed in ways unintended by
the drafters. For example, an abortion clinic that commences an
action to prevent protesters from interfering with its operations
and molesting its patients may face a motion to dismiss by the
It remains to be seen how courts will balance the seemingly
unequal burdens placed on the parties with the deterrent intent of
the anti-SLAPP provisions. We are likely to see significant
litigation under these provisions, as defendants experiment with
the power they are now afforded and judges determine how to
interpret and apply this new procedure.
 Ontario previously attempted to enact
anti-SLAPP legislation in 2008 (Bill 138), 2012 (Bill 132), and
2013 (Bill 83).
 British Columbia briefly had
anti-SLAPP legislation in the Protection of Public
Participation Act, which went into effect in April 2001, but
it was repealed in August 2001.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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