Ontario Reintroduces Its Anti-SLAPP Bill

The Attorney General of Ontario today reintroduced the Protection of Public Participation Act, now Bill 52, which as Bill 83 in the last session of the Legislature completed second reading but died when the election was called. Here is the news release.

The bill – if passed – will provide a fast-track motion by which a court could decide if a case involving expression on a matter of public interest should continue. Cases (such as defamation actions) will be allowed to continue if there are grounds to believe that they have technical merit and if the harm caused or likely to be caused by the expression outweighs the value of the expression.

The bill does not depend on demonstrating that the plaintiff has bad intentions in bringing the lawsuit. The considerations are based on effect rather than motive.

The bill is intended to enact most of the recommendations of an Advisory Panel on anti-SLAPP Actions that reported in 2010.

Whether it would have helped Mr Levant is not clear.

Comments

  1. Thank you John for sharing this with everyone. I was just wondering when we could see this legislation come into effect in Ontario.

  2. After about thirty years in this line of work, I never predict when the Legislature will do something until after it has done it. I am happy to report progress here as it happens.

    The bill says it comes into force on Royal Assent and applies to litigation begun on or after the date of first reading, i.e. December 1, 2014.

  3. Yes, hard to predict if it will be passed, but important to know it is back in front of the legislature.

  4. Reading this post and then looking at subsections 137.1 (3) and (4) in particular concern me as going too far. If someone genuinely defames someone, and there is a meritorious claim against them, would the claim would be struck out merely because the defamatory speech related to a matter of public interest and the plaintiff (respondent on the motion) couldn’t prove that there was no possible defence, or they couldn’t prove the damages they suffered were sufficiently serious?

  5. David, that is exactly the point of the bill. The law – whether defamation or some other cause of action – should not be used to suppress expression on a matter of public interest unless the expression has caused serious harm. A technically winning case is not good enough, if the plaintiff has suffered no harm, because suppressing speech on matters of public interest is harmful in itself.

  6. John, that’s my problem; I think “…sufficiently serious…” is too high a level for the plaintiff to have to prove.

    That is much higher than “technically winning case…if the plaintiff has suffered no harm…”. This language appears to require that a plaintiff who has suffered, say, medium harm, or even serious harm that is not “sufficiently” serious, still has their case dismissed. A defendant could deliberately concoct a falsehood, admit they deliberately made up a lie, cause serious harm, but so long as the comment related to a matter of such public importance that the harm suffered by the plaintiff was not sufficiently serious — case dismissed.

  7. Also, I read in this current draft Bill that it will only help those SLAPPed before Dec 1 2014. This was not in the previous draft that was being debated this spring. It seems incredibly unfair that a defendant could not benefit from this Bill just because they weren’t sued before a certain magic date. If it’s a SLAPP suit, it’s a SLAPP suit and deserves the same protection, regardless of the time it happened… especially since it’s taking YEARS to get this Bill passed!

  8. Bill 52 – the Protection of Public Participation Act, 2015 – has now passed its final reading in the Legislature by a vote of 87 to 7 and has received Royal Assent. It is therefore now in force. The recourse in the bill is available to any lawsuit begun on or after December 1, 2014, when the bill had first reading.

    The main opposition to the bill came from the forest industry and northern Ontario municipalities that depend on employment in that industry. They claimed the bill would be a licence for environmental groups to defame the industry. The government denied that it would have this effect, and that suits with merit and where harm was shown or likely would still be allowed to continue.

    The main concern of supporters of the bill was the point raised by Ms Wrightman in the previous comment – one she and others repeated to the Standing Committee: that the bill will not apply to lawsuits begun before last December, when the bill had first reading. On that point, the bill differed from its predecessor that died when the 2014 provincial election was called.

    Professor Normand Landry from Quebec wrote to the Committee to say that the bill would be an excellent model for common-law jurisdictions anywhere.