Twenty years ago CELA called for the introduction of legislation to address strategic lawsuits against public participation (SLAPPs) (See Intervenor: The Newsletter of the Canadian Environmental Law Association, Volume 19, Issue 4, July/August 1994). SLAPPs are civil lawsuits that are filed, often by large corporations, against individuals or local citizens’ groups for speaking out or taking a position on a matter of public interest. At that time the number of SLAPP suits in Canada was small in comparison to the U.S., where these types of cases had proliferated resulting in a number of states enacting anti-SLAPP laws.
SLAPPs have a ripple effect because not only do these lawsuits intimidate SLAPP victims but they also deter others from participating in discussions on matters of public interest. Accordingly, CELA warned the trend in Canada may increase and urged the government to adopt anti-SLAPP legislation before SLAPPs became a fixture in our legal landscape. Unfortunately over the years these types of lawsuits have not only increased in Ontario but have also arisen in other Canadian provinces.
This month the provincial government introduced Bill 52, Protection of Public Participation Act, 2014 to address the problem of SLAPPs. At the core of the bill is the test for early dismissal which allows a proceeding to be dismissed if it arises from an expression made by a person that relates to a matter of public interest. If a judge hearing the motion is satisfied of this, he or she must dismiss the proceeding unless the responding party satisfies the judge that there are grounds to believe that:
1. (a) the proceeding has substantial merit, and
(b) 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.
The Bill also sets out time lines to ensure these motions are dealt with promptly. A motion for early dismissal is to be heard within 60 days of filing and any cross-examinations are not to exceed seven hours. An appeal of a judge’s order on a motion to dismiss also has to be heard as soon as practicable after the appellant perfects the appeal.
The introduction of the bill is consistent with measures taken in other jurisdictions to address SLAPPs. In the U.S., twenty-eight states have passed anti-SLAPP legislation. Australia and Quebec have also adopted legislative measures against SLAPPs. Bill 52, if enacted, will protect Ontarians who engage in public participation from SLAPPs, thereby strengthening our democratic process. This is a Bill, therefore, that deserves all party support.