B.C. recently passed legislation designed to enhance public participation in matters of public interest by protecting expression on such matters. Defamation lawsuits, a tool too often used to suppress public speech (colloquially referred to as Strategic Lawsuits Against Public Participation, “SLAPP”), have a formidable opponent in the Protection of Public Participation Act, SBC 2009, c3 (the “Act”).
Given the resource intensive nature of defamation suits, and the length of litigation generally, the Act could provide useful relief for those embroiled in defamation suits. Pursuant to section 4 of the Act, defendants in defamation actions may now apply to have the action against them dismissed. Once an application is filed, the defamation action is effectively stayed until the application has been resolved (section 5). If the applicant is successful, the Act provides for costs (section 7), or, an award for damages if the court determines the plaintiff brought the proceeding in bad faith (section 8).
A welcome reform for B.C.’s posture toward SLAPP ligation – which previously required the person being sued to demonstrate ‘bad intent’ – the Act now tempers the threshold for dismissal to whether the expression on a matter of public interest is affected.
The Supreme Court Decision
The legislation was recently considered in B.C. In Galloway v A.B., 2019 BCSC 1417 (CanLII) [“Galloway“]. At issue in this case was whether the plaintiff was entitled to request information and documentation on a cross-examination conducted under section 9(5) of the Act, and if so, the extent of disclosure, when challenging the defendant’s application to dismiss.
The plaintiff argued that without disclosure, he would be unable to satisfy the burden placed on him by section 4(2) (that is, (a) demonstrating to the court that his lawsuit had substantial merit; (b) that the defendant had no valid defence; and, (c) the harm suffered by the expression outweighs the public interest in protecting that expression).
Drawing from a recent Ontario of Court of Appeal case, 1704604 Ontario Ltd. v Pointes Protection Association, 2018 ONCA 685 (CanLII), leave to appeal to the SCC granted, the Court in Galloway defined key terms in the provision and observed that while the aim of the Act is to provide the defendant with an expedient process to have unmeritorious actions dismissed, the “the flip side cannot deprive a plaintiff with a valid cause of action the ability to proceed.” Following United Soils Management Ltd. v Mohammed, 2017 ONSC 904 (CanLII), the Court held that it had discretion to order disclosure.
The scope of disclosure is again being considered by the B.C. Supreme Court in Neufeld v Hansman, Chilliwack Registry File No. S35152, judgment reserved.
The two Ontario cases cited above, which will be heard by the SCC in November this year, are of some moment to lawsuits impacted by anti-SLAPP legislation, and will do much to clarify the scope of evidence a plaintiff may demand in order to challenge an application to dismiss. The cases should be monitored given the similarities between anti-SLAPP legislation in Ontario and B.C. The cases will also shed light on the legislation’s usefulness for curbing costs and resources often associated with defamation litigation at the preliminary stages where dismissal applications will be heard most often.
Please see more information below, and check back soon for further updates:
For more information on this topic or answers to your questions about B.C.’s anti-SLAPP legislation, please contact Jordanna Cytrynbaum.