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SLAPP Bill To Increase Freedom Of Expression?

by Michael Hebert

A new government bill was tabled on June 4th, 2013 by Attorney General John Gerretsen aimed at stopping the proliferation of Strategic Lawsuits Against Public Participation (SLAPPs) in Ontario (Bill 83). These civil suits, of an unmeritorious nature, are generally aimed at: the intimidation or silence of critics, the prevention of individuals from publicly voicing community, environmental and other public interest concerns, and in essence providing a mechanism for the bridling of the freedom of expression.

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In 2010, an expert panel was convened by the Ontario government to make recommendations aimed at stemming the tide of SLAPPs in Ontario. This panel was comprised of persons such as: The Ontario Bar Association, former judges, the Association of Municipalities of Ontario, the Registered Nurses Association of Ontario, the Ontario Trial Lawyers Association, the Canadian Civil Liberties Association, environment groups, municipalities, and a broad spectrum of civil society, who have all called for anti-SLAPP legislation.

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The writer was privileged to be a part of the committee formed by the Ontario Bar Association’s Environmental Law Section, which as mentioned previously was consulted as part of the aforementioned expert panel to provide comments to the government’s advisor. We are happy to see that many of these suggestions have found their way into Bill 83. Among other things, SLAPP Bill 83 proposes to allow the early (summary) dismissal of a proceeding if the defendant in a defamation claim (moving party) establishes “…that the proceeding arises from an expression made by the person that relates to a matter of public interest”.[1]

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Bill 83 does not state what constitutes a matter of public interest; however, 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.”[2]

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The responding party (i. e., the plaintiff who commenced the defamation suit) then assumes the burden of proof, if the moving party discharges their burden, to satisfy the judge that there are grounds to believe: the moving party has no valid defence in the proceeding, the proceeding has substantial merit, and 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.

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Anti-SLAPP legislation will save costs for the justice system by ensuring the early dismissal of these meritless lawsuits. The bill is further aimed at protecting citizens and groups who engage in public debate, which is vital to Ontario’s democracy and the Rule of Law. For example, SLAPPs have arisen when Ontario citizens: bring cases before the Ontario Municipal Board, lodge complaints/concerns with government agencies, public education on issues, present issues at public meetings, or report environmental violations. The current tabled bill provides for a more efficient/expedient process for dismissing SLAPPs, strong disincentives for initiating them, and guidelines for adjudicators on how they are to be addressed.

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SLAPPs have been increasing in Ontario. A recent high-profile reported example was the lawsuits filed against multiple opponents of the Big Bay Point mega-marina, Innisfil, Lake Simcoe.[3] As a result, all of the suits were either dismissed by the courts for inactivity, with costs against the developer or dropped by the plaintiffs.

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The origins of Bill 83 lie primarily in disputes relating to environmental issues but, while aimed at remedying such, will be of interest to defendants in a variety defamation claims.

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It is therefore up to individuals interested in pursuing claims against defamation to weigh the options of incurring costs with the optics of having the suits dismissed. Bill 83 therefore presents a bit of a quandary, suggesting that such persons should tread carefully in pursuing such claims and may in fact encourage both a reduction in dismissal claims and a consequential increase in the expression of freedom as enshrined in the Canadian Charter of Rights and Freedoms.[4]

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Tag: SLAPP, Bill 83, Environmental Law.

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[1] Bill 83 Section 137.1 (3) – 2nd Session, 40th Legislature, Ontario, 62 Elizabeth II 2013;

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[2] Bill 83 Section 137.1 (2) – 2nd Session, 40th Legislature, Ontario, 62 Elizabeth II 2013;

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3 http://environmentaldefence.ca/blog/big-bay-point-public-land-private-developer;

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[4] Section 2(b) Constitution Act1982, c. 11 Schedule B, PART I, Canadian Charter of Rights and Freedoms.