Anti-SLAPP legislation in British Columbia and Ontario is producing interesting decisions and requiring courts to continue to consider the scope of the legislation. The Supreme Court of Canada has already rendered two important and comprehensive decisions in connection with how section 137.1 of the Ontario Courts of Justice Act works and recently granted leave to appeal in Neufeld v. Hansman, which was decided under British Columbia's Protection of Public Participation Act (the "PPPA"). The PPPA is virtually identical to Ontario's section 137.1 and therefore the granting of leave to appeal in Neufeld suggests that anti-SLAPP law is still evolving.
In Waterton Global Resources Management, Inc. v. Bockhold, 2022 BCSC 499, the British Columbia court recently dealt with another issue that has received little judicial consideration. In this case, the court was asked to consider whether a defendant who had denied making an impugned expression was entitled to bring an application under section 4 of the PPPA to dismiss the plaintiff's claim or alternatively, if section 4 could not be used, whether the plaintiff's action should be dismissed under BC's summary judgment rule.
The parties to this action had been involved in multiple lawsuits involving a gold and silver mine in Nevada. The plaintiff was a secured lender in a company in which the defendants were shareholders. The company owned the mine. In 2013, the company filed for bankruptcy. Two years later the United States Bankruptcy Court dismissed the company's bankruptcy filing. This allowed the plaintiff to foreclose on its collateral security, which was the company's interest in the mine, and to obtain 100% ownership in the mining company.
Three lawsuits brought by the defendants against the plaintiff in the United States were dismissed. The last action was dismissed in October 2019.
However, in 2018 the defendant MB began publishing statements about the plaintiff on the internet which alleged that the plaintiff's business strategy was a "death-spiral loan" model, that the plaintiff misled the U.S. bankruptcy court, and that the plaintiff used "underhanded tactics to siphon value from the companies they promise to serve." MB also issued some press releases which made similar allegations. The plaintiff sued MB in British Columbia claiming that his statements were false and misleading. The plaintiff also sued the defendant corporation and its director ID on the grounds that they assisted MB in making the false and misleading statements by providing him with financial support and encouragement.
The defendant corporation and ID sought to dismiss the plaintiff's action under section 4 of the PPPA and rule 9-6 of the Supreme Court Civil Rules or the summary judgment rule. The defendant corporation and ID contended that they had not made the impugned statements.
Like section 137.1 of the CJA, section 4 of the PPPA permits a defendant to seek the early dismissal of an action that falls under the section. To utilize the section, the moving party must prove on a balance of probabilities that:
a) the expression was made by them; and
b) the expression relates to a matter of public interest.
The plaintiff argued that in the circumstances the defendant corporation and ID could not rely on section 4 of the PPPA because they denied having "made" the impugned expressions.
Relying on 1704604 Ontario Ltd. v. Pointes Protection Assoc., 2020 SCC 22, the defendant corporation and ID contended that "expression" was to be given a broad meaning. The word "expression" included both verbal and non-verbal communications and public and private communications.
The court ruled in the plaintiff's favour.
The application judge determined that the word "made" in section 4(1)(a) necessarily involved the taking of some positive action to cause or create the expression in issue. A party that denied making the impugned expression or having anything to do with the impugned expression simply could not fall within this section. Accordingly, the defendant corporation and ID could not meet the initial burden of proof under section 4(1)(a) and their application was dismissed.
However, this finding did not mean that the defendant corporation and ID were entitled to summary judgment because the facts in the case showed that during the discovery process the plaintiff had sought material disclosure related to communications between the defendant corporation and ID and MB. This disclosure had not been provided at the time the defendant corporation and ID brought their motion under the PPPA.
The plaintiff argued that the request for summary judgment was premature because of the incomplete disclosure. The application judge noted that in Xiao v. Fan, 2020 BCSC 69 it had been found "that in order to resist summary judgment based on incomplete disclosure, the respondent must demonstrate a reasonable prospect that further discovery will reveal the existence of a triable issue."
The defendant corporation and ID had brought their PPPA application shortly after the plaintiff's request for disclosure. This, presumably, raised a suspicion in the mind of the application judge, who ultimately was convinced that there was a reasonable likelihood that the outstanding disclosure would reveal the true relationship between the co-defendants and the role played by the defendant corporation and ID in the impugned defamatory statements made by MB. Accordingly, the request for summary judgment was also denied.
This case shows that although anti-SLAPP law can be a powerful weapon in a defendant's arsenal, it is not a weapon that is available to everybody. Where a defendant denies having anything to do with an impugned expression, the defendant will not be able to satisfy the initial burden. Simply because someone else made the expression will not permit the defendant who denied making the impugned expression to use the law to get an early dismissal of the action. For the defendant corporation and ID, this could lead to an ironic situation if the outstanding disclosure reveals, as the plaintiff has alleged, that they indeed provided financial support to MB and encouraged MB to make the impugned expressions. Query whether in such circumstances, the defendant corporation and ID would be able to bring a second application under section 4 of the PPPA to seek the dismissal of the plaintiff's action, or whether such an application would be barred under either the doctrines of res judicata, collateral attack or abuse of process?
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.