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Draft Bill for a new Protection of Public Participation Act


The Environmental Defense Working Group and Burnaby Pipeline Watch received a grant in 2015 from the West Coast Environmental Law Foundation (WCEL) to research and prepare recommendations for legislation to protect public participation in British Columbia. As part of the grant, the WCEL prepared a summary in August 2017 of the case for legislation and recommendations for the proposed legislation. Additional information about our recommendations is on this website and Facebook.

Draft Bill
Protection of Public Participation Act, 2018

“claim” means any claim for relief within a proceeding;
“defendant” means a person against whom a proceeding is brought or maintained;
“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
“improper purpose” refers to a claim with the effect of
i. dissuading the defendant or other persons from engaging in public participation;
ii. diverts the defendant’s resources from public participation to the proceeding; or
iii. penalizes the defendant for engaging in public participation
“plaintiff” means a person who initiates or maintains a proceeding against a defendant;
“proceeding” means any action, suit, matter, cause, counterclaim, appeal, or originating application that is brought in the Supreme Court or the Provincial Court, but does not include a prosecution for an offence or a crime;
“public interest” means the whole of the subject matter invites public attention, or a matter in which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached;
“public participation” means communication or conduct aimed at influencing public opinion, or promoting further lawful action by the public or any government body, in relation to an issue of public interest;
“Strategic Lawsuit Against Public Participation (SLAPP)” means a claim that arises from a form of expression or public participation, by the person against whom the claim is asserted that was made in connection with an official proceeding or about a matter of public interest;
Purposes of this Act:
2 The purposes of this Act are to
a) Establish a statutory right to public participation for every individual;
b) Encourage individuals to express themselves on matters of public interest;
c) Promote broad participation in debates on matters of public interest;
d) Discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and,
e) Preserve the right of access to the courts for all proceedings and claims that are not brought or maintained for an improper purpose.
2 The purpose of this Act is to expand the democratic benefits of broad participation in public affairs by protecting the right to communicate on matters of public interest.
Defamation and Qualified Privilege
3 Public participation constitutes an occasion of qualified privilege and, for that purpose, the communication or conduct that constitutes the public participation is deemed to be of interest to all persons who, directly or indirectly,
a) Receive the communication, or
b) Witness the conduct
4 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.
Order to dismiss
5 On motion by the person against whom a proceeding is brought, a judge shall, subject to subsection (6), 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
6 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 already 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.
Limit on cross-examinations
7(1) Subject to subsection (2), cross-examinations on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants
(2) A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interest of justice
Costs on dismissal
8(1) 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.
(2) The judge may also award punitive damages, either on the defendant’s motion or on the court’s own motion, as justified in the circumstances.
Costs if motion to dismiss denied
9 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.
10 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
Relief under this Act is in addition to other available relief
11 Nothing in this Act limits or restricts the rights available to a plaintiff of defendant under any Act or any rule of any court.
Motion to be heard
12(1) If a defendant against whom a proceeding is brought or maintained considers the whole of the proceeding or any claim within the proceeding has been brought in response to their expression or public participation, the defendant may, subject to subsection (2), bring an application for one or more of the following orders:
a) To dismiss the proceeding or claim, as the case may be;
b) For costs and expenses;
c) For punitive or exemplary damages against the plaintiff.
(2) If a motion is brought under section (1),
a) the applicant must set a date for the hearing that is
i. No later than 60 days after notice of the motion is filed with the court, and
ii. Not less than 120 days before the date scheduled for the trial of the proceeding, and
b) all further applications, procedures, or other steps in the proceeding, including interim injunctions are, unless the court otherwise orders, suspended until the motion, including any appeal of the motion, has been finally disposed of.
Amendment to pleadings
13 Unless a judge orders otherwise, the responding party shall not be permitted to amend their 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.
14(1) An order granting or denying a special motion to dismiss under this Act shall be appealable.
(2) An appeal under subsection (1) shall be heard as soon as practicable after the appellant perfects the appeal.
Directors liability
15 If a corporation is responsible for an improper use or abuse of procedure, those of its directors and officers who took part in the decision may be ordered personally to pay damages
Exclusion of deliberate acts
16 This Act does not apply to an action against a person for the deliberate destruction of property or the deliberate infliction of physical injury to other persons.