Anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation has once again been introduced in Ontario. Now known as Bill 83, the draft Protection of Public Participation Act, 2013 received its first reading last week at Queen's Park. The new bill comes on the heels of previous private members legislation tendered in 2008 and 2012 that did not make it into law.

Bill 83 Proposes a Motion for Early Dismissal

Among other things, Bill 83 proposes to allow the early dismissal of a proceeding if the moving party (i.e., the defendant in a defamation claim) establishes that the proceeding "arises from an expression made by the person that relates to a matter of public interest".

While Bill 83 does not state what constitutes a matter of public interest, an "expression" is defined as "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."

If the moving party discharges their burden, the onus shifts to the responding party (i.e., the plaintiff who commenced the defamation suit) to satisfy the judge:

1. There are grounds to believe that,
   1. The proceeding has substantial merit, and
   2. The moving party has no valid defence in the proceeding; and
2. The harm likely to be or have been 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.

It is clear that the government intends for these motions to be dealt with promptly. According to the draft bill, the early dismissal motion is to be heard within 60 days of filing and any cross-examinations are limited to one day for each party.

It is also clear that the stakes will be very high for plaintiffs if Bill 83 is passed. The draft bill provides that the pleadings may not be amended to avoid defending the motion and, if the proceeding is dismissed, plaintiffs will be required to pay the full indemnity costs of the defendant. Furthermore, the responding party may be required to pay damages if the Judge determines the proceeding was brought in bad faith or for an improper purpose.

In contrast, the stakes are not quite as high for defendants. If the proceeding is not dismissed, the bill provides, contrary to the ordinary rules, that the responding party is not automatically entitled to costs unless the Judge determines that such an award is appropriate. Further, there is no similar risk that defendants would be required to pay damages if the Judge determines that there is no valid defence or that the early dismissal motion was brought in bad faith.

Summary Judgment by Another Name?

Essentially, Bill 83 creates an early escape hatch for defendants in defamation proceedings where the expression at issue concerns public interest subject matter. According to existing caselaw, matters that concern the public interest are not synonymous with matters that merely interest the public. Rather, the legislation is aimed at protecting speech on matters of public debate such as municipal planning, environmental issues, political matters, etc.

If Bill 83 is passed in its current form, it is likely that the main battleground on an early dismissal motion would be whether the expression at issue concerns a matter of "public interest". As a matter of law, defamation suits are intended to protect personal reputations. However, personal reputations are frequently attacked when significant matters of public debate are at issue. Accordingly, the line is often blurred between an individual's personal reputation and their public conduct.

So, hypothetically, if a major Canadian newspaper alleged that the Mayor of a large Ontario municipality abused alcohol or drugs, that mayor's defamation action might be subject to a motion for early dismissal under Bill 83 on the basis that the conduct of the mayor and his sobriety is a matter of public interest.

Assuming the court agreed, the onus would then shift to the mayor to establish "grounds to believe" that his defamation claim has "substantial merit", that the defendant has is no valid defence in the proceeding (ex. that the statements about his sobriety are untrue), and that the harm to his reputation outweighs the public interest in protecting the statements alleged to be defamatory.

If the mayor were to be successful in resisting the motion, not only would he end up paying the other side's full indemnity costs but he could possibly end up paying damages. In addition, the action for defamation would be entirely dismissed without a hearing on the merits or the benefit of discovery and a full evidentiary record. In that context, the motion for early dismissal looks a lot more like a simplified motion for summary judgment.

Thicker Skin Required

While Bill 83 has its genesis in disputes arising in high profile environmental and municipal planning disputes, the proposed legislation will surely be of interest to defendants in garden variety defamation claims.

The issue for those with reputations in the public and private sphere will be whether the comments and surrounding publicity are worth risking costs and the optics of having their defamation suit dismissed. For many involved in matters of public interest, Bill 83 would suggest a thicker skin and second thought is required before taking steps to defend their reputation.

The full text of Bill 83 can be viewed here:

http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session2/b083.pdf

Background material provided by the Office of the Attorney General can be viewed here:

http://news.ontario.ca/mag/en/2013/06/ontario-protecting-freedom-of-expression.html