Written by: Alfonso Chen
1. What is the relevant legislation?
There is significant value in many expressions made on matters of public interest. However, such expressions, even if innocently made, can sometimes defame others in society, triggering a defamation lawsuit. Provinces in Canada, such as Ontario, have had legislation for years inviting courts to dismiss lawsuits involving certain expressions on matters of public interest to deter “strategic lawsuits against public participation”, also known as SLAPP. British Columbia did not have such anti-SLAPP legislation until recently.
The Protection of Public Participation Act, S.B.C. 2019, C. 3 (the “PPPA”) came into force in British Columbia on March 25, 2019, becoming British Columbia’s anti-SLAPP legislation that provides defendants involved in certain lawsuits a mechanism to have the action against them dismissed.
Madam Justice Donegan reviewed Ontario case law and readings of the bill to enact the PPPA in the Legislative Assembly to set out in Hobbs v Warner, 2019 BCSC 2196 (“Hobbs”) at paras 20-27 that the purposes of the PPPA are 1) to distinguish between claims arising from an expression that relates to a matter of public interest and other claims, and 2) to provide for the early and inexpensive dismissal of claims based on expressions relating to matters of public interest, either because those claims lack sufficient merit to proceed or because the public interest is, on balance, not served by allowing the action to proceed to an adjudication on the full merits.
Please note that this article does not constitute legal advice and that it is imperative that you discuss your particular case with a lawyer to have the lawyer advise you properly.
2. The Application to Dismiss
Section 4 of the PPPA provides the mechanism for the application to dismiss:
(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that
(a) the proceeding arises from an expression made by the applicant, and
(b) the expression relates to a matter of public interest.
(2) If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1), the court must make a dismissal order unless the respondent satisfies the court that
(a) there are grounds to believe that
(i) the proceeding has substantial merit, and
(ii) the applicant has no valid defence in the proceeding, and
(b) the harm likely to have been or to be suffered by the respondent as a result of the applicant's expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.
ThePublic Interest Threshold Hurdle
Section 4 first “requires a defendant to clear a “threshold hurdle” and demonstrate that the litigation arises out of his or her expression on a matter relating to the public interest: s. 4(1)”: Hobbs at para 11. Expression is defined broadly in s. 1 of the PPPA to be “any communication, whether it is made verbally or non-verbally, publicly or privately, and whether it is directed or not directed at a person or entity”. Although public interest is not defined in the PPPA, the threshold can be guided by the discussion of “public interest” in Grant v Torstar Corp., 2009 SCC 61, which provides in para 65 that “public interest… does not take into account the merits or manner of the pression nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus.”
If the defendant does meet the onus of establishing that the litigation arises out of his or her expression on a matter relating to the public interest, the onus then shifts to the plaintiff to demonstrate that his or her lawsuit clears both the “merits-based” and the “public interest” hurdles: Hobbs at para 11.
The Merits-based Hurdle
First, the plaintiff must clear the merits-based hurdle. The discussion regarding “grounds to believe” involves reasonable grounds to believe: Hobbs at para 39. The proceeding would be considered to have substantial merit if, upon examination of the application record, the claim is shown to be legally tenable and supported by evidence, which could lead a reasonable trier to conclude that the claim has a real chance of success: Hobbs at para 44. The defendant has an evidentiary burden to advance details of any proposed defence in either its pleadings or in its application materials. Then, the plaintiff has the onus of establishing that a trier of fact could conclude that none of the defences advanced would succeed when looking at the application materials through a reasonableness lens. The court can make limited credibility assessments.
ThePublic Interest Hurdle
Second, the plaintiff must clear the public interest hurdle, which involves a balancing exercise. The court may consider the monetary and non-monetary harm to the plaintiff as a consequence of the impugned expression. The plaintiff must provide a basis for the court to assess the harm done or likely to be done – a common sense reading of the claim, supported evidence to draw a causal connection between the challenged expression and non-nominal damages may suffice. However, the plaintiff cannot rely on bald assertions in the notice of civil claim relating to damages or on unsourced, unexplained damage claims. Regarding the public interest in protecting the expression, a few factors are relevant, including:
1. the quality of the expression;
2. the motivation of the speaker; and
3. the consequences of the plaintiff’s claim.
For example, statements that contain deliberate falsehoods, gratuitous personal attacks or vulgar and offensive language may involve less public interest in their protection than statements delivered without the lies, vitriol and obscenities. Evidence of actual “libel chill” generated by the plaintiff’s claim can also be an important factor in public interest evaluation. The above analysis of this balancing exercise is discussed in further detail in paras 50-57 of Hobbs.
3. Conclusion
The anti-SLAPP legislation in British Columbia, the PPPA, provides a mechanism that may allow defendants to have claims dismissed where the proceedings arise from the defendants’ expressions relating to matters of public interest. Both plaintiffs and defendants of lawsuits involving public interest expressions should familiarize themselves with the PPPA and be prepared to overcome the hurdles set out in s.4 of the PPPA.
Several of the lawyers at Henderson & Lee are available to meet with you to discuss legal disputes you have with others, including those involving defamation and other matters rooted in expressions relating to matters of public interest. Please contact our office at (604) 558-2258 if you would like to book an appointment.
Alfonso Chen is a lawyer at Henderson & Lee who represents clients involved in defamation disputes.