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Legislation to prevent strategic lawsuits against public participation in British Columbia

West Coast Environmental Law
August 2017

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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.

Legislation to prevent strategic lawsuits against public participation in British Columbia

“I am simply not convinced that the rule of law is enhanced by the present process which: (a) forces innocent bystanders to seek their own protection by manufacturing ill-fitting “civil” suits; (b) places the court in a position where it must fashion some remedy at the expense of repeatedly putting its authority in issue; (c) arguably deprives demonstrators of due process.”
— Justice McEwan

Introduction

A strategic lawsuit against public participation (SLAPP) is a claim filed against individuals participating in public debate as a means of silencing them. A plaintiff will typically bring numerous lawsuits against defendants to inhibit their ability to participate in public discussions or demonstrations and dissuade others from doing the same. These lawsuits most often take the form of defamation, nuisance, trespass, invasion of privacy, interference with contract or economic advantage, and other economic torts. These claims often do not have a strong evidentiary basis and are not intended to go to trial, but rather are meant to burden defendants with costs and stress until they disengage from the public debate. SLAPPs are usually characterized by an imbalance of resources and bargaining power in favour of the plaintiff — for example, plaintiffs are often corporations while the defendants are typically individuals or small organizations without comparable resources.

The courts acknowledge faults in our system for allowing such claims to proceed but are unwilling to fix those faults from the bench, as that would entail making drastic changes to our existing laws. It is evident that British Columbia needs new and effective governing legislation to prevent SLAPP suits.

This paper will analyze past and recent cases in British Columbia to demonstrate why anti-SLAPP legislation is needed in British Columbia. It then discusses the uncertainty and inconsistencies in how our courts address SLAPP actions, and concludes by reviewing the case law and legislation of other jurisdictions to determine how best to construct a new anti-SLAPP Act for British Columbia.
Why do we need anti-SLAPP legislation?

Anti-SLAPP legislation exists to protect the democratic right to engage in public debate and expression on matters of public interest. It shields citizens from unmeritorious lawsuits intended to prevent their public participation. The majority of SLAPP suits are defamation actions—claiming the defendant’s form of expression has caused harm to the plaintiff’s reputation. This is concerning because, as stated by an American law firm specializing in defamation law, “Canada is considered to have the most plaintiff-friendly defamation laws in the “English-speaking world”. That is, it is very easy for a plaintiff to show that someone has made defamatory statements about them while it is difficult to defend against this claim. Approaches for how to deal with defamation suits will be considered later in the ‘Draft Bill Considerations’ section of the paper.

British Columbia implemented anti-SLAPP legislation, the Protection of Public Participation Act (PPPA), in April of 2001, repealed it three months later, and has had a new proposed bill sitting in first reading since 2015. There have also been attempts to create common law defences to SLAPP actions, but judges appear unwilling to take on a principally legislative role.
Many jurisdictions, including more than half of the states in the United States, have implemented legislation to protect public participation. In Canada, Quebec and Ontario have adopted anti-SLAPP legislation making British Columbia the most populous province without these protections.

Arguments commonly made against implementing new anti-SLAPP legislation

Arguments against the enactment of anti-SLAPP legislation have generally focused on the availability of other existing remedies and concerns around the creation of a “protest culture”. For instance, when BC repealed its anti-SLAPP legislation in 2001 the government of the day argued that the Act was unnecessary as there had been only one lawsuit acknowledged as a SLAPP in BC history. A further argument was that even if SLAPPs were a problem, there are other avenues of redress available, and that the Act w0uld encourage a protest culture. Let us address each argument in turn.

SLAPP suits are not a pervasive enough problem

SLAPP suits are pervasive, but they can be difficult to count empirically. The unfortunate truth is that very few SLAPP suits make it to trial. The purpose of the lawsuit is to burden the defendant with legal fees and exhaust their resources in order to inhibit their ability to engage in public participation. SLAPP suits are also used as a threat to discourage others from engaging in the same participatory activity. Merely serving a defendant with a SLAPP suit allows the plaintiff to have powerful censoring effects. Therefore, the lack of cases identified as SLAPPs in the BC courts is not indicative of the frequency in which SLAPP suits are filed or the effect they have on the public.

Other avenues of redress are available

The other options for dealing with SLAPP suits in British Columbia are Rules 9-5, 9-6, and 22-7 of the Supreme Court Civil Rules. Rule 9–5 allows a court to strike all or part of a pleading if it has no reasonable claim; is unnecessary, scandalous, frivolous or vexatious; will prejudice or delay the trial; or is otherwise an abuse of the court. Rule 9–6 allows summary judgement, which can result in dismissal if it is shown that the plaintiff’s claim contains no cause of action, and Rule 22–7 allows the court to dismiss a proceeding if there has been failure to comply with the Supreme Court Civil Rules. These tests are difficult to meet and are typically reserved for particularly egregious circumstances. The 2015 BCSC decision in the ongoing Northwest Organics, Limited Partnership v Maguire (“Northwest Organics”), highlighted how challenging it is for defendants to have cases dismissed using these Rules. The Court explained that Rules 9-5, 9-6, and 22-7 have high thresholds and are therefore rarely used. Similarly, in CanWest MediaWorks, defendants who were confident they were subject to a SLAPP failed to meet the high threshold of Rule 19(24) (now Rule 9–5(1)).

Anti-SLAPP legislation will create a protest culture

The existence of anti-SLAPP legislation does not appear to have been linked to notable increases in activism. The term “protest culture” has been used to describe moments of widespread political pushback that lead to “mobile and collaborative protest structures” within a region. This phenomenon has been sparked by issues such as political discontent, decreasing confidence in governments, and moral outrage. Most protests are “reactive, spurred by a sense of threat to one’s daily life”. Additionally, protestors may value the collective gains they are pursuing above the costs, and do not have uniform views on the risk of punishment. Some put great efforts toward avoiding conflicts with law enforcement while others may view it as a form of martyrdom. This information suggests that protestors are collectively motivated by the cause and are only moderately dissuaded by potential repercussions. People will protest with or without anti-SLAPP legislation, and that is their right as part of a healthy democracy.

Conclusion

On the whole, the main arguments against anti-SLAPP legislation in British Columbia do not have a strong evidentiary basis. It is important now to review the circumstances that led to BC’s 2001 PPPA, as well as the current situation to determine what steps should be taken.

The BC experience with SLAPPs

Efforts to create anti-SLAPP legislation began in the 1990s after a few notable cases raised public awareness of the issue. In 1992, a forestry corporation, MacMillan Bloedel Ltd., filed a lawsuit against the Galiano Conservancy Association, a local elected governing council, and three sitting councillors after zoning bylaws limited the company’s development opportunities on Galiano Island. In response to allegations of the strategic purposes of the suit, the Court allowed the Conservancy to engage in further examinations for discovery to establish special costs, followed by an unsuccessful appeal by MacMillan.

In 1993, a local company filed a defamation suit against community residents who spoke out against its application to build a liquor store in the neighbourhood. The claims were dropped before the case went to trial but had a significant impact on community members’ ability to express opposition.

In 1997, a 150-person blockade was formed to prevent Slocan Valley Products (“Slocan”) from logging a watershed near New Denver. Slocan brought a suit against Richard Caniell, the Valhalla Wilderness Society, John Doe, Jane Doe, and others. While Caniell was an active critic of Slocan in the media, he presented photographic proof that he was there to document only, and not participate in the blockade. Nonetheless, the injunction was filed limiting the ability of anyone to protest. Though the defendants may have had a strong case, they were unable to have the lawsuit dismissed because they had exhausted their financial resources.

The case that really sparked public interest in the need for anti-SLAPP legislation was Fraser v Saanich, in 1999. The District of Saanich responded to citizen petitions and rezoned a building, prohibiting Ms. Fraser from redeveloping her property. Fraser sued the District and neighbourhood residents with various claims that were all rejected by the BC Supreme Court (“BCSC”):
[…] this action not only contains an unreasonable claim, is meritless and devoid of any factual foundation, but also has been used as an attempt to stifle the democratic activities of the defendants, the neighbourhood residents. I find the plaintiffs’ conduct reprehensible and deserving of censure by an award of special costs.

Unfortunately, it takes an exceptional case for a judge to find that an action is a SLAPP suit. In the 2016 Taseko Mines Ltd (“Taseko”) case, though strong evidence was presented that the Western Canada Wilderness Committee had been the victim of a SLAPP, the Court withheld factoring that into its ruling, claiming that was a job for the legislature.

There have been other recent lawsuits that have characteristics of SLAPP suits, but without the proper laws in place they are unlikely to be explicitly recognized as such. In 2000 a logging company, Slocan Forest Products Ltd, filed for damages and an injunction against protestors for blocking a road, though the company could not name a single defendant. While the judge remarked that this was not the proper use of the courts, he found no recourse available other than to grant the injunction.

In 2015, the British Columbia Supreme Court (BCSC) heard Trans Mountain Pipeline ULC v Gold (Trans Mountain) in which numerous individuals associated with the Burnaby protests of Kinder Morgan’s expansion defended against claims of civil conspiracy and other tortious allegations. The case was eventually dropped by Trans Mountain, but only after the defendants had suffered enormous legal costs.

The case of Alan Dutton, one of the defendants named in the Trans Mountain case, exemplifies how these lawsuits may look in practice. Dutton deposed that he was present for the demonstrations but only to take photographs and talk to officers about traffic and safety concerns. Though he wasn’t involved in the actual blockade, he may have been a target because of the active and public role he played in mobilizing the public to express opposition to the project. Though the claim did not persist, targeting Dutton had a chilling effect on public participation.

Similarly, in November of 2015, a series of blockades prevented Maverick Ltd from constructing roads to allow Teal Cedar to log near Castle Grove, an old growth forest on Vancouver Island. The company brought suit against a handful of named individuals including Torrance Coste, the Western Canada Wilderness Committee (Wilderness Committee), and John and Jane Doe. The transcript from Chambers before Justice Abrioux articulated that Teal Cedar found it difficult to identify individuals in the blockade but that Coste’s email was located on the Wilderness Committee’s website and he was believed to have some influence over the blockaders. This case mirrors Trans Mountain in that the chosen defendants imply a prioritization on discouraging participation over discovering those truly at fault.

The Wilderness Committee was fortunate to acquire pro bono services from EcoJustice and Teal Cedar ultimately agreed to abandon the claim. Despite the favourable outcome and free legal services, the Wilderness Committee’s liability insurance has since tripled. The Wilderness Committee also had to forego other opportunities to focus their efforts on defending a claim even without substantive proof of their involvement. Unfortunately, most individuals and organizations are not so lucky to have pro bono legal services and will exhaust their resources very quickly.

The mere threat of a SLAPP suit is often enough to have a significant impact. It may seem apparent that there is no basis for a claim, however it would be highly irresponsible for a defendant to not treat it as valid. In 2003, West Coast Environmental Law faced threats of a lawsuit for organizing a community debate. The suit was never filed, but significant funding and resources were allocated by the organization in preparation for the claim.

Anti-SLAPP legislation would reduce legal uncertainty

Without anti-SLAPP legislation, there is uncertainty in delineating what technically is a SLAPP suit and what an appropriate judicial response may be. Implementing a law on the matter would increase consistency and clarify the boundaries for the judiciary and the public. Case law from across Canada can be categorized based on the courts’ response to allegations of the actions being SLAPP suits.

Ignored or refused to consider SLAPP arguments

Courts have hesitated to consider SLAPP arguments even with anti-SLAPP legislation in place. In the well-known lawsuit against Greenpeace by Resolute Forest Products Ltd, the Ontario Superior Court of Justice was not prepared to address whether the action was a SLAPP. This may be attributable to the fact that Ontario’s anti-SLAPP legislation came into force between hearings and its application was uncertain. Nonetheless, with the Ontario example to follow, British Columbia should be able to enjoy a more seamless transition once anti-SLAPP legislation is implemented.

As mentioned previously, in the Taseko Mines case, the Court chose not to consider special damages for the defendants on the grounds that the claim was a SLAPP because it found that to be a role for the legislature. Similarly, the Court in Northwest Organics declined to grant a remedy because, without anti-SLAPP legislation, it would call for a drastic change to defamation law.

Defendants failed to defend an action through alternatives to anti-SLAPP legislation

Without anti-SLAPP legislation, defendants must resort to the alternative remedies previously mentioned. Due to the difficulty in meeting the tests in the Rules, the courts have no option but to allow the trial to proceed.

In 2000, the previously mentioned Slocan Forest Products v John Doe case involved an injunction against protestors generally. In this particularly unusual case, the Court observed that the injunction was not in response to a clear legal issue, but a “proscriptive rule, binding generally on the public, governing present and future behaviour so that Slocan can get on with its activities. Even though the Court asserted that such an order was essentially ad hoc lawmaking, it found that given the current state of the law, it had no option but to keep the injunction in place.

In 2009, without the ability to dismiss the claim as a SLAPP, Horizon Publications Ltd (“Horizon”) relied on Rule 19(24) (now Rule 9–5(1)) of the Supreme Court Rules to show the claim brought against them was “scandalous, frivolous or vexatious”. CanWest MediaWorks Publications Inc (“CanWest”) sued Horizon for publishing a parody of the Vancouver Sun — one of the company’s many newspapers. Horizon argued that since CanWest was unable to show they suffered any harm, the company was not truly seeking to recover damages, but to restrict parodies of their publications. The Court declined to consider CanWest’s motives and found Horizon failed to prove the 9–5(1) test that the plaintiff’s claim is bound to fail.

The Court in Home Equity Development Inc v Crow contemplated BC’s repealed Protection of Public Participation Act (“PPPA”) but did not apply it. Home Equity Development Inc. filed defamation suits against residents of the town of East Sooke for opposing its development plans. The Court found the qualified privilege provision of the Act did not apply as the statements were made before the Act was implemented. The Court acknowledged that the debate itself constituted “public participation”, and would have been covered by the Act had the timeline fit. The Court asserted “because the statutory qualified privilege is not available, each applicant must establish either the facts contained in the communication were true or, where the communication is opinion, that the facts upon which the opinion was based were true.”

In Clark v East Sooke Rural Assn, the argument that a lawsuit was a SLAPP was dismissed because the defendants failed to prove the action was brought for an improper purpose—a standard that, as will be argued later in the paper, should not be included in anti-SLAPP legislation.

In a 2016 case against the British Columbia Hydro and Power Authority (“BC Hydro”), defendants were unable to argue against an injunction. The Court found that BC Hydro met the test for an injunction, requiring “1) a fair question to be tried; 2) that it will suffer irreparable harm if the injunction is not granted; and 3) that the balance of convenience favours the granting of the injunction.” The defendant argued that the facts were not sufficient for BC Hydro to meet this test but the Court did not agree, emphasizing the importance of potential economic burden on BC Hydro.

Finally, in the 2015 BCSC Northwest Organics decision, defendants were subject to defamation suits for disseminating materials, most notably an environmental study of Northwest Organics’ compost development plans. The defendants’ claim that the lawsuit was a SLAPP were dismissed so they relied on Rules 9–5, 9¬–6, and 22–7 for their defence. The defendants were unable to meet to “high threshold” required for any of the Rules. The Court even articulated that “[s]triking pleadings under Rule 22–7 … is a draconian remedy, only to be granted in the most egregious cases”.

It is impossible to determine whether any of the above cases would have been decided differently with the implementation of anti-SLAPP legislation. However, many of these unfavourable outcomes resulted from the difficulties of the higher standards in defamation and injunction law that anti-SLAPP legislation seeks to correct. With appropriate legislation, even if the defendants fail, there could at least be confidence that they received a fair process.
Claim successfully defended through alternatives to anti-SLAPP legislation

Other methods sometimes are sufficient and allow defendants to defend themselves against the claims against them. It is important to note that, even in successful cases the existence of anti-SLAPP legislation would likely have significantly expedited the process and potentially eliminate the need for a trial.

In a case that is obviously unmeritorious, the claim would be dismissed before the actual trial. In Scory v Krannitz, Ms. Krannitz not only encountered significant legal fees and could no longer work full time, but disassociated herself from environmental organizations and community involvement generally in response to the lawsuit against her. The Court stated that “there was absolutely no merit to the action and no evidence led to support the serious allegations.” During the trial the Court also observed that the lawsuit “effectively silenced the respondents’ participation in the Township’s decision” meeting the basic criteria of a SLAPP. As a result, the Court ordered special costs against the plaintiff; a positive conclusion after a lengthy, unnecessary trial.
Similarly, cases such as Taseko Mines and Northwest Organics were successfully defended, but only after full trials on the basis of defamation law. These cases now serve as examples of how the system can be made more efficient and cost-effective with the introduction of anti-SLAPP legislation.

Ontario’s Moran Report

In 2010, the province of Ontario considered implementing anti-SLAPP legislation. To ensure Ontario’s legislature was fully informed beforehand, the Anti-SLAPP Advisory Panel (“the Panel”) released a report to the Attorney General (“Moran Report”) after considering all available evidence and research on the matter. The Panel concluded that “threats of lawsuits for speaking out on matters of public interest, combined with a number of actual lawsuits, deter significant numbers of people from participating in discussions on such matters” and therefore that Ontario should enact legislation to protect against SLAPP suits.

In addition to the general need for anti-SLAPP legislation, the Moran Report made suggestions on specific aspects of the proposed Act that will be reviewed below.

What should BC’s anti-SLAPP law look like?

Ideally, anti-SLAPP legislation will protect the individual’s right to protest and engage in public debate without inhibiting a claimant’s ability to file a meritorious claim. If the statute is constructed to offer remedies to those faced with SLAPP suits, and only SLAPP suits, then the Act should not impede on the rights of any involved. In Strategic Lawsuits Against Public Participation: The British Columbia Experience, Michaelin Scott and Chris Tollefson identified three categories necessary for effective anti-SLAPP legislation: (a) expedite identification and dismissal of SLAPPs, (b) reduce the economic burden SLAPPs place on defendants, and (c) create economic disincentives to the filing of SLAPPs. This structure informed the approach in the Moran Report and would be a useful starting point for British Columbia as well.

A new anti-SLAPP law should compensate for the economic and power imbalance typically found between parties involved in SLAPPs and deter subsequent reliance on this strategy. British Columbia’s Protection of Public Participation Act, 2001 did not adequately address these concerns, resulting in a near impossible standard for defendants to meet. Conversely, Ontario’s anti-SLAPP law has done an impressive job of remedying this issue. We are fortunate to now have both Acts, as well as those from other jurisdictions, to inform what should or should not be included in future anti-SLAPP laws.
In Suggestions for a New and Improved Protection of Public Participation Act for BC, Neil Chantler outlined six essential elements for anti-SLAPP legislation:

1. A clearly-defined purpose;

2. A statutory right to participation;

3. A process that allows rapid identification and dismissal of appropriate cases, including:
a. An effects-based test for identification of applicable cases based on the type of activity engaged in by the defendant;
b. A subsequent onus shift to plaintiffs to justify their claims; and
c. Requirements for the timely hearing and disposition of appropriate cases;

4. Provisions that reduce the economic burden of defending against SLAPP suits;

5. Additional financial disincentives for bringing SLAPP suits; and

6. A statutory defence of qualified privilege applicable to defamation claims.

A non-exhaustive draft bill, based on recommendations by numerous legal scholars, can be found in the Appendix on page 20. This sample legislation includes aspects of BC’s repealed legislation as well as other jurisdictions that have had favourable results with their own statutes.

Draft bill considerations

Definitions

The definitions section can be vital to ensuring proper application of the statute by the courts. Some important definitions for this type of legislation include “expression”, “improper purpose”, and “public interest”. There are also certain phrases, namely “public participation”, and “strategic lawsuit against public participation” that must be refined to clarify what needs to be proven in court.

Relevant terms, even those that seem apparent, should be included in the definition section to ensure consistency. Ontario’s statute does not contain a definition of “public interest”, compelling the courts to fashion their own interpretation. The Court in both Platnick v Bent, and Veneruzzo v Storey reviewed various cases to determine what is a matter of public interest, ultimately following the definition in Grant v Torstar. In fact, 1704604 Ontario Ltd v Pointes Protection Assn, Able Translations Inc v Express International Translations Inc, Accruent LLC v Mishimagi, and Fortress Real Developments Inc v Rabidoux all ultimately relied primarily on the definition from Grant v Torstar. While it is fortunate that the Ontario courts took similar approaches in defining “public interest”, the process would be streamlined by a clear and concise definition that would not require analysis of any external sources. This is illustrated by the numerous Ontario SLAPP judgements that expressed frustration with the lack of guidance in the Courts of Justice Act regarding the application of the term “public interest”. Due to its widespread adoption, the draft bill defines “public interest” to closely resemble that in Grant v Torstar.

On the other hand, BC’s previous anti-SLAPP legislation may have overdone the definition of what constitutes “public participation”. Here, the legislature listed activities that cannot be considered public participation including damage to property, physical injury, and otherwise unlawful interference with one’s rights. Drawing a hard-and-fast line without leaving room for contextual considerations has been criticized by legal scholars, including the Moran Report. Instead, the judiciary should be trusted to use their discretion not to protect or encourage public participation that is truly harmful lawless behaviour. The proportionality balance in Ontario’s threshold test (below) allows judges to balance the negative impact resulting from the actions of both parties.

The Moran Report also suggested omitting the phrase “strategic lawsuit against public participation” from Ontario’s legislation, largely because it emphasizes the intention behind the lawsuit. Because the phrase is now so widely used and understood, it seems unnecessary and possibly confusing to eliminate it completely. The legislation can still emphasize an effects-based analysis by defining the term broadly to refer to actions that result in having an adverse effect on the ability to participate in discussions on matters of public interest.

Purposes of the Act

The purpose section allows the legislature to explain the overall intent behind a statute. It is often relied upon by the courts when interpreting how the legislation applies in a particular context. BC’s PPPA and other jurisdictions such as Ontario, Quebec, Australia, and California have used varied phrasing to describe an intention to encourage public participation and discourage litigation used as a means of limiting such participation. The most comprehensive purpose section can be found in Ontario’s Courts of Justice Act:

137.1 The purposes of this section and sections 137.2 to 137.5 are,
a) To encourage individuals to express themselves on matters of public interest;
b) To promote broad participation in debates on matters of public interest;
c) To discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
d) To reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

The PPPA also specified that the Act is a means for dismissing an action brought for an improper purpose, for reimbursing and awarding punitive or exemplary damages to defendants subject to SLAPP proceedings, and protection from liability for defamation in public participation. To that extent, the PPPA comprehensively defined the values the legislation sought to uphold. However, this section also established the onus of proof remaining with the defendant, an issue which will be addressed in the section below.

Creation of a private right to publicly participate

Canadians do not encounter SLAPP suits as frequently as in the United States, but the US offers better protections. The American right to petition government, grounded in the First Amendment, has been interpreted as a broad constitutional protection and a successful tool for defendants of SLAPP suits, even in areas without anti-SLAPP legislation. While the Canadian Charter of Rights and Freedoms (the Charter) protects rights and freedoms related to opinion, expression, and assembly, it has been found by the courts to only protect citizens from government bodies, and is not applicable between private parties. Therefore if a developer files SLAPP suits against a defendant, that defendant cannot invoke Charter rights because they are both private, non-government, parties.

The Moran Report concluded that the purpose of anti-SLAPP legislation should be “to expand the democratic benefits of broad participation in public affairs and to reduce the risk that such participation will be unduly hampered by fear of legal action.” While this phrasing is somewhat rights-oriented, the Report concluded that establishing a right to publicly participate was unnecessary as our common law is informed by constitutional values, such as freedom of expression. At the very least, a statutory right to participate in matters of public interest would provide litigants, judges, and the public generally with much-needed clarification in how the law should apply.

Scott and Tollefson insisted that this issue must be clearly and robustly addressed, and provided a definition to “include the right to communicate with all levels of government and the judiciary, as well as to the public at large in connection with matters of public concern.”

This paper adopts Jeremy Shragge’s phrasing for the Purposes of the Act: “to expand the democratic benefits of broad participation in public affairs by protecting the right to communicate on matters of public interest.” This description emphasizes the values and intent informing the Act in addition to establishing a statutory right.

Burden of proof

Arguably the most important section of anti-SLAPP legislation establishes the burden or onus of proof. This refers to what needs to be proven and which party holds the burden of proving it. British Columbia’s PPPA placed the responsibility of proving the claim was a SLAPP suit on the defendant. This is concerning because of the inherent difficulty in proving the intentions of an individual or company that has launched the suit. Additionally, “[p]roving intent might require the defendant to engage in a lengthy discovery process including document disclosure and examinations for discovery, or in some cases a trial.” In fact, the courts have been uncomfortable with this idea as was exemplified in CanWest MediaWorks, where the Court refused to consider the intentions of the plaintiff and asserted that “a defendant is not entitled to inquire at trial as to the motives of a plaintiff in bringing an action in the hope that it might advance a claim for special costs.”

Other jurisdictions have observed that this type of action calls for a reversed onus. Quebec’s Code of Civil Procedure, states that “if a party summarily establishes that a judicial application or pleading may constitute an abuse of procedure, the onus is on the initiator of the application or pleading to show that it is not excessive or unreasonable and is justified in law.” A leading Quebec case wrestled with the effects-based and purpose-based language between the French and English versions of the text and concluded that while the effects of a lawsuit are most determinative, the Act required some level of intent as well. This is an improvement on the PPPA, but does not go far enough as it still requires the defendant to present evidence on the intention behind a plaintiff’s claim.

Ontario’s Act mirrors the standard suggested by the Moran Report which focused on evaluating the effect, and not the purpose, of the legal action. The Moran Panel noted that “[j]udging the motive of a plaintiff is likely to be difficult, and often impossible, in an expedited proceeding.” The Panel concluded the ideal threshold test for a defendant would be to show “the expression giving rise to the underlying action was on a matter of public interest.” Once established, the onus switches to the plaintiff to prove the proceeding has substantial merit, that the defendants have no valid defence, and the harm suffered is sufficiently serious to outweigh the public interest in protecting expression. For this step, the plaintiff is expected to introduce compelling, credible, and cogent evidence to establish the existence of damages and basis for attributing the damages to the defendant.

While critics have suggested Ontario’s statute places an undue burden on the plaintiff, the case law suggests that this is still quite a difficult test for the defendant to meet. Of the ten Ontario cases under section 137 of the Courts of Justice Act, three resulted in a successful application to dismiss on the grounds that the case was a SLAPP, six failed, and one did not make a final decision on the matter.

The burden of proof aspect of Ontario’s anti-SLAPP legislation should be viewed as a model for any future Act in British Columbia. An example of how this should be articulated can be found in sections 5 and 6 of the legislative draft in the Appendix on page 20.

Defamation

Defamation law creates the right to sue for harm to one’s reputation. “Defamation is the single most frequent cause of action alleged in SLAPP lawsuits” making up approximately 53% of SLAPPs filed in the United States, and is recognized as a particularly plaintiff-friendly cause of action. This legal area creates inequality in bargaining power by leaving individuals vulnerable while larger companies have sufficient resources and the corporate structure to shield employees from personal liability.

BC’s repealed PPPA sought to address this imbalance by including a provision stating that acts of public participation fall under the defence of qualified privilege. This defence recognizes the public interest in access to certain information—in the absence of malice— that may otherwise be considered defamatory. This provision would theoretically create a relatively easy method for a defendant to dismiss an improper defamation suit.
In 2006, Australia took a unique approach by preventing large corporations from suing in defamation regarding ongoing community concerns where the company has potential to stifle legitimate public debate. The benefit to this over the defamation and qualified privilege provisions in anti-SLAPP legislation, is that it removes the steps of filing the claim, the plaintiff proving defamation, and the defendant proving the defence of qualified privilege in court. This amendment to Australia’s defamation laws successfully restricted a corporation’s ability to have a cause of action in defamation and theoretically will reduce costs and increase efficiency in SLAPP cases.

A rule similar to that in Australia would have a significant impact on future British Columbia cases. For example, a past BC case decided on defamation technicalities would have been drastically altered by such a rule. In the 2013 Mainstream Canada v Staniford case, Mainstream Canada, the second largest producer of farmed salmon in BC, brought a defamation suit against Staniford for publishing information online about the health and environmental impacts of farmed fish. Mainstream Canada conceded that Staniford’s statements were on a matter of public interest, but the defendant was nonetheless unable to meet the full test for a fair comment defence to defamation. The defence required the facts to be known, and since they were not “notorious”, the statement required a clear reference to the source. Although the studies relied on were later presented at trial, they were not adequately referenced on the website and so the defence failed.

British Columbia has already restricted the right of municipal corporations to bring a claim in defamation despite holding full capacity, rights and powers of a natural person. Expanding this rule to include larger corporations on matters of public interest would eliminate some SLAPP suits before they occur and increase the efficiency of our courts.

Directors’ liability

Quebec’s anti-SLAPP provisions in the Code of Civil Procedure hold directors and officers of a corporation accountable for an improper use of procedure by their company. If a director or officer is shown to have participated in a decision that led to their corporation engaging in activity that amounts to an abuse of process, they will be ordered to personally pay damages. This addresses the inequality in bargaining power inherent in SLAPP suits. While defending a SLAPP suit often results in great financial losses for the defendants, directors and officers of a plaintiff company that filed the unmeritorious claims can shield themselves from any liability if only their corporation is liable. This strategy is achieved by restricting the corporation’s assets to drastically limit the extent to which they can be held accountable.

A new PPPA in British Columbia should adopt a similar clause to ensure directing minds involved in filing SLAPP suits face legal risk and defendants of SLAPPs are adequately compensated.

Costs

Costs are an integral consideration in both the context of litigation costs for the parties involved, as well as how costs are awarded depending on the outcome. Scott and Tollefson emphasized the impact legal costs can have on defendants:

Much of the chilling effect of SLAPPs comes simply from anxiety surrounding the financial burden that defending a SLAPP almost inevitably entails. Reducing some of these costs by accelerating the hearing of a summary dismissal application is an important step toward reducing this burden.

Allocation of costs

The Moran Report highlighted the importance of anti-SLAPP legislation rebalancing the inequality of financial resources between parties from the outset of litigation. The report explained that cost provisions should “reduce the adverse impact on constitutional values of unmeritorious litigation…deter commencement of such actions” and encourage counsel to represent defendants on a contingency basis. Such principles led to Ontario implementing highly effective cost provisions. The Ontario Courts of Justice Act provides for full indemnity for a successful applicant (defendant) but no guarantee of costs to be awarded to the plaintiff if the application to dismiss fails. Another important consideration to supplement this provision can be found in BC’s repealed PPPA. Section 5(2)(b) of the PPPA allowed the court to award punitive or exemplary damages in particularly egregious circumstances where the plaintiff acted in bad faith.

Dismissal with prejudice

In his paper, Jeremy Shragge identified dismissals with prejudice as another key factor to help with the economic imbalance found with SLAPP suits. Such a provision would prevent a plaintiff from amending their statement of claim after having the action dismissed, subject to the discretion of the court. This makes the dismissal relatively permanent, providing an ongoing protection for the defendants involved.

Expedited proceedings

The expedited identification and dismissal of SLAPPs helps to manage legal costs. BC’s PPPA required applications to dismiss to be heard within 60 days of filing the application and no less than 120 days before the trial. Additionally, while the motion was underway, it required that all proceedings be suspended until the action was decided. Provisions of this nature are common in the legislation of other jurisdictions as well. In a 2017 Ontario case, the Court explained:

Once the anti-SLAPP motion is brought, no party may take any further step in the proceeding until the motion is finally disposed of. The prohibition makes good sense given the purpose of the legislation, as it prevents the use of “extraneous tactical steps” that might be used to undermine the efficiency of the intended process. The provision contains no exceptions and, importantly, the court is afforded no power to grant relief from the prohibition in any circumstances.

British Columbia’s PPPA, on the other hand, did create an exception for interim injunctions, allowing the plaintiff to achieve their goal—to stifle public participation—before a fair hearing. An interim injunction can be executed by the courts to restrain defendants from continuing the behaviour at issue over the course of the trial. When applying for an interim injunction, a plaintiff must show there is a fair question to be tried and that the balance of convenience favours granting the injunction. This test, combined with the perception that it was improper to file a lawsuit primarily to obtain an interim injunction, created some protection for defendants. However, this was challenged in the 2000 Slocan Forest Products Ltd v John Doe decision in which, with no named defendants, it appeared unlikely there was ever any intention to proceed to trial. Nonetheless, Slocan Forest Products Ltd was granted an interim injunction, prohibiting protesters from congregating near the construction site. In a 2003 decision, the BCSC echoed the Slocan case by declaring that beginning an action for the sake of obtaining an interim injunction was not an abuse of process.

Interim injunctions have the potential to keep the public silent during the trial, which in itself has a great impact on SLAPP defendants. If the suspension of proceedings were expanded to also prohibit interim injunctions, as in Ontario, both parties will be enticed to settle the matter quickly, and expression will no longer be limited by claims that haven’t yet been upheld in court.

Limiting cross examinations

A final method for reducing costs and expediting hearings includes placing time limits on the right of either party to conduct cross examinations. Ontario’s Courts of Justice Act limits cross examinations on any documentary evidence to prevent the hearing from being unnecessarily prolonged. This is essential to prevent either party from wasting the court’s time and increasing costs once the hearing for the motion to dismiss has begun.

Appeals

Most jurisdictions with anti-SLAPP legislation do not include specific provisions regarding appeals of dismissal motions in their legislation. Ontario’s statute acknowledged the ability to appeal judgements on dismissal applications, and specified that they must be dealt with as soon as is practicable.
British Columbia could follow suit and spare the courts the burden of deciding this matter. It took a few years and multiple trials for Quebec to establish that judgements on the dismissal of an action through their anti-SLAPP provisions are appealable with leave. It would be in keeping with the values of efficiency and cost-effectiveness to include a statement as to the legislature’s intention regarding rights of appeal in SLAPP dismissals.

Conclusion

At a time where issues with the efficiency of British Columbia’s courts and access to justice are at the forefront, we must address SLAPP suits as they congest the courts and cause individuals to fear the legal repercussions of exercising their right to expression. We are fortunate to have the guidance of our previous PPPA, and the Acts of various other jurisdictions to help us navigate the legal complexities of this area. The hope for this paper is that it will be a useful tool to assist legislators and policy makers in the province to thoroughly consider the topic and begin the process for an Act protecting British Columbians from SLAPP suits.

Appendix: Draft Bill for a new Protection of Public Participation Act.

Protection of Public Participation Act, 2018

Definitions:
“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.

Alternatively

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.

Damages

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.

Appeals

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.

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