October 28^th of this month will mark the one year anniversary of the publication of the Anti-SLAPP Panel’s Report to the Attorney General on anti-SLAPP legislation. Since then, the chatter on the issue of strategic litigation against public participation (SLAPP) appears to have died down. With the intent of renewing the debate on this issue, the following article, although long overdue, will summarize and discuss the Advisory Panel’s report.  It is hoped that the new provincial government will address the issue of SLAPPs during its four year term.

Introduction

In June 2010 the Attorney General of Ontario created the Advisory Panel to advise him on potential anti-SLAPP legislation. Arguably, this move was in response to what has been described as the “most down-and-dirty development fight in Ontario’s recent memory”.[1] After gaining approval from the Ontario Municipal Board (OMB) to build a resort and marina on the shores of Big Bay Point, a developer made a costs application for $3.2 million against a community group and its lawyers that had opposed its plans.[2] Although the OMB declined to award the developer its costs, the latter did not come away from the proceedings empty-handed. The notion of suing the lawyers of defendants to a SLAPP lawsuit sent shockwaves throughout the Ontario legal community. While the Advisory Panel was still in the process of developing its recommendations the insurer for Ontario lawyers warned its members that representing public interest groups was risky because those groups may become the target of a SLAPP lawsuit that involves great unanticipated cost consequences.[3]

Having reached that critical point, it was not a great surprise that the final report released by Advisory Panel to the public in December 2010 recommended that anti-SLAPP legislation should be created. Instead of endorsing the creation of new statutory rights to public participation and to “SLAPPback,” the Advisory Panel opted for a procedure-based approach for filtering out SLAPP lawsuits and made recommendations on the different types of provisions that should be included in the legislation.

This article reviews those recommendations with the objective of providing a “fresh set of eyes” perspective on the issue. While the Advisory Panel’s support for anti-SLAPP legislation is a sign of progress, particularly in regards to its recommendation that a special expedited procedure be created, its approach as a whole may not have the teeth necessary to address SLAPP lawsuits, especially environmental ones, in an effective manner. This article takes the position that an approach that couples substantive rights with an expedited procedure should be adopted because it would deter SLAPP lawsuits and ensure that defendants receive adequate protection, regardless of whether the litigation involves an element of government action or not.

Unlike the final report, this article will primarily focus on environmental SLAPPs because public interest groups and ordinary middle-class citizens that speak out on environmental issues tend to be the targets of SLAPPs.[4] Ordinary middle-class citizens are particularly vulnerable targets because of their personal liability, as well as their lack of financial support and ideological dedication to defend against a SLAPP lawsuit.[5] This focus on should not be taken to imply that anti-SLAPP legislation should exclusively address environmental SLAPPs, as SLAPP lawsuits are in general considered to be weapons against public participation that must be disarmed.

Part I: SLAPPS – A Weapon Against Public Participation

During the 1970s SLAPPs were recognized for the first time as a legal phenomenon in the United States. They became part of the “corporate offensive” against activism[6] in response to the increase of American citizens speaking out on environmental and other social issues.[7] This phenomenon migrated to other jurisdictions such as Canada and Australia due to a similar rise in activism. Consensus has yet to be reached on the specific elements of a SLAPP lawsuit though it is generally accepted that a SLAPP lawsuit is a civil action without substantial merit that is brought against individuals, community and public interest groups, or local government officials for communicating with government or others on issues that affect the public’s interests.[8] They can be distinguished from other meritless and retaliatory civil litigation in that they are a reaction to political action.[9] Correspondingly, SLAPPs are designed to stop citizens from exercising their political rights and punish them for doing so.

The ultimate goal of initiating a SLAPP lawsuit is not necessarily a judgement in favour of the plaintiff. In fact, the most extensive study on SLAPPs to date, which was conducted in the late 1980s, found that plaintiffs did not succeed 77-82% of the time.[10] SLAPP lawsuits primarily wreak their mischief through the litigation process.[11] The plaintiff uses the various steps in the litigation process to waste the time and drain the financial resources of the defendant. An oft-cited passage that is used to describe the function of SLAPP lawsuits is provided in the following excerpt:

SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success… The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent.[12]

The expression and dissemination of different viewpoints in civil society are necessary conditions for democracy. By chilling participation in public decision-making and policy-making SLAPPs undermine democracy. This sentiment is shared by the Panel, who also notes that it is “crucial to encourage public participation [since] as voter turnouts decline, society’s needs become ever more complex and individuals feel increasingly powerless to effect meaningful change.”[13] Civil society is further disempowered with the “privatization of public debate” that occurs when a SLAPP lawsuit transfers a public political debate to the private, sometimes confidential, forum of the courtroom.[14] In the absence of any safeguards built into legislation, the common law on torts is used to subvert the democratic process.

Plaintiffs cannot directly sue people for exercising their democratic right to participate in the political process, though they can frame those activities perceived to be contrary to their interests as torts.[15] Common torts that are used by plaintiffs include: defamation, inducing breach of contract, conspiracy, trespass, nuisance, and interference with contractual relations.[16] Examples of SLAPP lawsuits include framing boycotts as intentional interference with economic relations[17] and opposition to land development as conspiracy and inducing breach of contract[18].

Given the aggressive use of SLAPPs it is possible that statutory participatory rights such as those built into Ontario’s Environmental Bill of Rights could be undermined by the fear of retribution.[19] Lawmakers have made an effort to incorporate rights to public comment and take legal action in environmental legislation. However, the unrestrained ability of a plaintiff to frame legitimate communications or conduct as torts can make those statutory rights to public participation impotent. The lack of legislative safeguards means that SLAPPs can transform public participation in the democratic process into a risky activity that attracts liability, even when condoned by the legislature.

Part II: Summary and Criticisms of the Advisory Panel’s Recommendations

1. Purpose of the Legislation

The report of the Advisory Panel starts off on the right track with its recommendation that the legislation include a purpose clause for the benefit of judicial interpretation.[20] It recommends that the purpose of the legislation should be to “expand the democratic benefits of broad participation in public affairs and to reduce the risk that such participation will be unduly hampered by fear of legal action.”[21] The Panel explains that this formulation is desirable because it will provide the courts and litigants with notice of appropriate uses of the legislation, and by doing so, it will deter litigation that does not fall within the appropriate uses.[22] As well, a purpose clause will help litigants differentiate between SLAPPs and non-SLAPPs, the latter of which is subject to the limited remedies for traditional civil actions.[23] An effective purpose clause plays the crucial roles of interpretation and gate keeping.[24] It is for those reasons that the lack of detail in the purpose clause is troubling.

While it is conceded that the mandate of the Panel was not to develop model legislation, it should have recommended that more principles be embodied in the purpose clause for the aforementioned reasons. As well, more principles would facilitate a more focused debate in the legislature. The experience in other jurisdictions such as British Columbia and Australia has shown that draft legislation tends to be watered-down in the final product due to strenuous opposition to anti-SLAPP legislation. While the responsibility of drafting the bill lies with the legislature, the Panel still should have provided more principles to assist the former’s debate and to avoid the risk of the bill being too general in the first place, and then being watered-down in the Third Reading. Further, providing more principles will crystallize the Advisory Panel’s vision and narrow the appropriate uses of the anti-SLAPP legislation so to avoid abuse.

Existing legislation and failed bills by provincial legislatures provide a source from which the provincial government can mine for principles. For example, the purpose clause which was used in Ontario and Nova Scotia’s failed bills and B.C.’s repealed legislation stated that the two main purposes of the legislation was: (i) to encourage public participation and deter claims brought for an “improper purpose”; and (ii) to preserve access to justice for claims not brought for an “improper purpose”. In relation to the first main purpose, legislation was to provide:

1. an opportunity… for a defendant to allege that… the proceeding or a claim within the proceeding is brought or maintained for an improper purpose,
2. a means by which a proceeding or claim that is brought or maintained for an improper purpose can be summarily dismissed,
3. a means by which [defendants]…may obtain reimbursement for all reasonable costs and expenses that they incur as a result,
4. a means by which punitive or exemplary damages may be imposed in respect of a proceeding or claim that is brought or maintained for an improper purpose, and
5. protection from liability for defamation if the defamatory communication or conduct constitutes public participation [.]

Similarly, the purpose stated in the preamble of existing legislation in Québec is to promote access to justice, prevent “improper use” of the courts, and balance the financial strength of the parties. Québec’s legislation differs from that of the other provinces because it recognizes the “importance [of] promot[ing] freedom of expression affirmed in the Charter of human rights and freedoms”, while the above mentioned trio’s legislation failed to make reference to any human rights legislation.[25] As well, the trio’s definition of “improper purpose” had an intention element while Québec’s “improper use” does not. This subtle difference in terminology has a significant effect on the operation of the legislation.

The concept of improper use reflects the scope of the legislation; the legislation is to address a broad range of litigation beyond attempts to chill public participation and applies to reprehensible legal practices that are unrelated to public participation.[26] In comparison, the concept of improper purpose is incorporated into a threshold test for accessing the protection of the trio’s legislation. By forgoing an intention requirement Québec’s legislation avoids all the problems associated with proving intention in the context of an expedited procedure.

The intention element in the trio’s legislation placed a heavy burden on the defendant to show that the “principal purpose” for which the plaintiff brought its action was to prevent or dissuade public participation. That burden is difficult to satisfy because the plaintiff may have brought the action with the principal purpose of protecting its interests. It might be difficult for defendants to have access to documents that would demonstrate the plaintiff’s intent since such documents might  be privileged.[27] Proving intent would  entailed extensive and expensive discovery.[28] More importantly, a focus on intention distracts from the key issue regarding SLAPPs: the effect on free speech.[29] The Advisory Panel was prudent in not only avoiding an intention element in its recommendation, but, as will be discussed below, it was also prudent in developing a threshold test for accessing its proposed expedited procedure that focuses on the effect of the lawsuit on public participation.[30]

While its avoidance of an intention requirement reflected a well-researched and analysed thought-process on the part of the Panel, the failure to provide a more detailed purpose clause is the primary reason why the new provincial government should not adopt the Advisory Panel’s recommendation wholesale. The other provinces’ attempts to legislate demonstrate the lack of detail in the Panel’s recommendation regarding the purpose clause. The two principles provided by the Panel should be expanded so that they include the principles outlined in the trio’s common purpose clause, but should exclude any reference to intention. The preamble in Québec’s legislation seems to reflect this recommendation, and thus is provides a convenient model to incorporate into the Panel’s recommended purpose clause.

2. The Threshold Test

As mentioned above, the Panel prudently developed an effects-based threshold test for accessing the expedited procedure.  First, the defendant must show that the plaintiff’s action involves a communication on a matter of public interest on a balance of probabilities. Second, if the defendant satisfies that burden, then the burden shifts to the plaintiff to show that: (i) its case has substantial merit; (ii) there are substantial grounds to believe that no valid defence exists; and (iii) and the harm it has suffered outweighs the harm done to the public interest by allowing the action to continue.[31] In its comments the Panel states that the expedited procedure should apply if the effect of the action is “likely to have an adverse effect on the ability of the defendant or others to participate in discussions on matters of public interest” [32] (emphasis added). The subtle sophistication of the test is reflected in its application to adverse effects on third parties’ public participation. By including the adverse effects on third parties’ public participation the Panel acknowledges the chilling effect that SLAPPs can have on the greater public.

For the purpose of assessing the merits of the threshold test recommended by the Panel, it is useful to look at an alternative threshold test called a “special motion to strike” that places the burden initially on the plaintiff. An example is provided in § 425.16 of the California Code of Civil Procedure[33], which allows for a plaintiff’s alleged SLAPP lawsuit to be struck out unless it can show that there is a probability that its claim will succeed. This test presumptively applies where the plaintiff’s action involves the right to petition or right to free speech in connection with a public issue. Due to corporate abuse of this provision the California legislature enacted § 425.17, which creates two exemptions to § 425.16. These exemptions help ensure access to justice for legitimate plaintiffs.

One exemption applies where a plaintiff brings an action solely in the public interest or on behalf of the general public, but also seeks relief greater than or different from the relief sought for the general public. As well, private enforcement of the alleged wrong must be necessary and place a disproportionate burden on the plaintiff in relation to its stake in the matter. A plaintiff that would satisfy this exemption would likely be a public interest non-for-profit or nongovernmental organization (NGO) with few financial resources. Corporate plaintiffs would be hard-pressed to show that they suffer a financial burden and are acting solely in the public interest.

The second exemption also ensures access to justice for legitimate plaintiffs. It applies where the plaintiff brings an action brought against a business for false representations made to potential customers about the former’s products or services or a competing business’ products and services.

In addition to being a feasible alternative that ensures access to justice for legitimate plaintiffs, the California provisions also seem to possess the capacity to protect common law and statutory causes of action. Individuals that have been wronged by corporate environmental infractions have initiated common law tort actions such as nuisance and trespass. The Environmental Bill of Rights provides a statutory right to bring an action for public nuisance causing environmental harm[34] or to protect a public resource[35]. Those rights could be undermined if anti-SLAPP legislation was abused. Unfortunately, the final report does not appear to explicitly address anti-abuse provisions.

The special motion to strike also has the advantage of presumptively protecting the rights to petition and free speech whereas the Panel’s test requires the defendant to prove that it made a communication on matter of public interest. As will be discussed later on, the Panel’s refusal to endorse a right to public participation explains why it places the burden on the defendant. If there was a right to public participation, then there would be no need for the defendant to prove that it made a communication on a matter of public interest. Ignoring for the moment the Panel’s justifications for not endorsing such a right, there does not appear to be any convincing reasons provided by the Panel as to why the burden in the threshold test should be initially placed on the defendant.

The Panel could have recommended that a special motion to strike apply presumptively whenever a communication on a matter in the public interest is made and provided a definition of the term “communication in the public interest”. That approach would avoid the creation of a new right and place the burden on the plaintiff initially. Further, access to justice for the plaintiff would not be negatively impacted and the parties’ interests would be balanced in a manner similar to that in the Panel’s threshold test. In a special motion to strike, the defendant’s interests would be embodied in the definition of communication in the public interests. If the plaintiff’s cause of action involved a communication on matter in the public interest, then it would have the opportunity to show that its claim is viable through pleadings and affidavits. Consistent with the Panel’s recommendation, the court would evaluate the plaintiff’s claim based on its effect on the defendant’s communications on a matter in the public interest. This exercise demonstrates that the main problem with the Panel’s test is the absence of any justification for placing the burden initially on the defendant.

3. Substantive Rights

a. A Right to Public Participation

The most disconcerting recommendation by the Advisory Panel is its explicit rejection of a statutory right to public participation. According to the Panel, such a right is unnecessary because its proposed procedure-based solution, coupled with existing rights, are sufficient to address SLAPP lawsuits. The Panel states:

Canadians’ constitutional freedom of expression, and the recognized importance of constitutional values for the development of the law applicable in civil litigation, provide a firm foundation for the procedural remedy recommended in this Report… [This remedy] will better protect and promote freedom of express on matters of public interest while having regard to the values at stake on both sides of cases involving such expression.[36]

The main criticism of the Panel’s position is that the constitutional right to freedom of expression outlined in s. 2(b) of the Charter of Rights and Freedoms [37]  does not apply litigation between private parties.[38] In Dolphin Delivery Ltd v RWDSU, Local 580 the Supreme Court of Canada (SCC) held that the Charter applies where there is an element of government action.[39] Since the Charter does not apply to litigation between private parties there appears to be no protection for defendants against private plaintiffs.  The Panel’s reliance on the judiciary’s duty to develop the common law in a manner consistent with the Charter neglects the requirement that any such development must not upset balance between judicial and legislative action.[40]  No explanation is provided to address these issues, and yet the Panel is willing to find without reservation that a right to public participation is unnecessary.

The inapplicability of constitutional protections to litigation between private parties seems to be indirectly addressed via the Panel’s recommendation that one of the threshold tests for accessing the proposed procedure-based remedy should be whether the communication is on a matter of public interest.[41] If the defendant can show that the subject of the lawsuit against it involves a communication on a matter of public interest on a balance of probabilities, then the burden will shift to the plaintiff to satisfy the aforementioned three-part test.[42] The Panel also recommends that the new procedural remedies should apply to a broad scope of activities regardless of whether an activity involves public or private forums of discussion.[43] By framing the issue in terms of whether a communication on a matter of public interest and erasing the distinction between public and private forums, the Panel is attempting to create the perception that the distinction between governmental and private litigation is not a problem.

Regardless of how the Panel frames the issue, the problem of different treatment for defendants between governmental and private litigation still persists. Defendants involved in litigation with a private party will not have the benefit of the Charter’s protections. That argument is not meant to imply that a right to public participation should be constitutionalized so that the same protections exist in governmental and private litigation. Instead, it is meant to highlight the disparity in protection and different burden that a defendant in non-governmental litigation must endure. Instead of shielding itself with a positive right to public participation, the defendant must show that its communication is on a matter of public interest. As above, the Panel does not justify why the defendant should carry that burden. A statutory right to public participation would allow for parallel protection as well as avoid the issue of which party must carry the burden.

The advantages of a statutory right should not be taken to imply that the expedited procedure proposed by the Panel should not be adopted. On the contrary, there is support for coupling the procedure with a statutory right to public participation. In a article referred to by the Panel, Susan Lott from the Public Interest Advocacy Centre supports the creation of a right to public participation. She supports an approach that involves an expedited procedural process, which is consistent with the Panel’s recommendations, but goes further by advocating for a right to public participation.[44] Lott explains that legislation that involves procedural and penalty considerations only work if there is a clear way to identify a SLAPP lawsuit like creating a right to public participation.[45] The latter “would provide the courts with direction to assess the facts of the case in the context of determining the impact of the lawsuit on the defendant’s right to express and exercise their democratic rights.”[46] In agreement, Chris Tollefson, a leading Canadian scholar on the issue of SLAPPs, argues that the right should have a broad scope so that it encompasses the variety of ways that citizens participate directly or indirectly in the processes of government.[47] He also argues that the right should protect communication to all levels of government on matters of public policy as well as communications directed at the public at large.[48]

Despite tremendous support for a statutory right in academic circles, lawmakers in various jurisdictions have yet to create such a right. To understand their reluctance to do so, one must look to the experiences of jurisdictions that enacted anti-SLAPP legislation.

b. British Columbia’s Failed Experiment with Anti-SLAPP Legislation

Possible explanations for the Advisory Panel’s reluctance to endorse the creation of a right to public participation are provided by a review of B.C.’s experience of anti-SLAPP legislation. After the first bill proposed by the government, Bill 29, was found to be too extreme, a second, more watered-down bill was proposed. The fierce debate over the proposed legislation influenced the government to ultimately enact the latter, which vainly attempted to create a compromise between the competing factions involved.

When Bill 29 was proposed in 2000 the provincial government was receptive to anti-SLAPP legislation based on then-Premier Ujjal Dossanjh’s perception of the need to gain public support by prioritizing environmental and community interests.[49] Opposition came from two fronts: business and industry interests coupled with the criticisms of the Liberal Party of Canada. Given the slew of environmental disputes between developers and environmental groups in B.C., it was no surprise that industry and business groups opposed the legislation. Political opponents criticized the proposed legislation based on their view that SLAPPs were not a problem that required legislation and that existing procedural remedies were capable of addressing SLAPPs.[50] As well, they argued that legislation would preclude access to justice by plaintiffs and could be subject to abuse.[51] Bill 29 ultimately died on the legislative table and a new bill was proposed. The substantially different Bill 10 ultimately passed Third Reading and the Protection of Public Participation Act was enacted by the B.C. legislature in April 2001. Political and private interest opposition influenced the government to reach a compromise that essentially watered-down the legislation.

The critical difference between the two bills is that Bill 29 contained a statutory right to public participation. Section 2(1) of the bill stated that “a person may make any communication or engage in any conduct if the communication or conduct is genuinely aimed at promoting or furthering lawful action by the public or by any government body in relation to an issue of public interest.” Unprotected communication or conduct is that which resulted in property damage or physical injury, was in breach of any law or court order, or is considered by a court to be an unwarranted inference with a person’s property or rights.[52] This right would have provided a complete defence to a SLAPP lawsuit, while its exceptions would have maintained the court’s “discretion to refuse protection to behaviour that overstepped the bounds of what would be considered reasonable in a democratic society.”[53] However, the aforementioned criticisms influenced the lawmakers to bow to the multitude of competing interests. The content of the resulting legislation demonstrates the consequence of governments attempting to appease all of the interested stakeholders above the greater public interest in addressing a legal problem: a watered-down legislative regime that does nothing to change the status quo.

c. Australia’s Experience with Anti-SLAPP Legislation

Australia’s experience with anti-SLAPP legislation parallels that of B.C. Similar to B.C.’s experience, a bill that included a right to public participation was proposed in the Australian Capital Territory (ACT).  Bill 40 established a right to public participation that was tailored to exclude from its protection activities outside legal democratic activity such as property damage.[54] A lawsuit would be summarily dismissed where the defendant showed that its activity was a legitimate act of public participation.[55] However, like its B.C. counterparts, the ACT lawmakers ultimately rejected a substantive rights approach for a procedural one.

Like the Canadian trio’s legislation, the resulting Protection of Public Participation Act 2008 used an “improper purpose” threshold test to filter out SLAPPs.[56]  Like the trio’s definition of improper purpose, the ACT’s legislation imposed the onerous burden of satisfying intention and primary purpose requirements.[57] In a similar fashion, the legislation was watered-down in response to fierce opposition that echoed the criticisms that were raised in B.C. The Australian experience with SLAPP legislation reinforces the effect that pandering to a multitude of competing interests can have on the content of legislation.

The experiences in B.C. and Australia demonstrate one of the many ironies of the legal system. While democracy is reflected in the legislative process through the expression of the competing interest groups’ viewpoints, it is not necessarily engendered in the content of the resulting legislation. Specifically, in both of these jurisdictions, a proposed right to public participation that would have protected activities that facilitate the democratic process was deleted out of legislative bills after lawmakers bowed to the opposition’s pressure. Although democratic decision-making necessarily entails the consideration of a variety of viewpoints, the lawmakers seemed to have forgotten that the means of democracy do not necessarily entail compromise. There are some circumstances where the means of democracy such as a right to public participation need to be established so that a variety of viewpoints can be raised throughout civil society. In other words, a right to public participation would facilitate and reinforce the expression of various viewpoints in various contexts. By successfully advocating for the exclusion of the right, the opposition was able to express its viewpoint, but the greater public was hindered in its overall ability to do so because of the exclusion of the right from the resulting legislation. The failure to perceive this relationship means that the Advisory Panel is perfunctorily following in footsteps of its peers towards a situation where democracy does not function properly.

d. A SLAPPback Right

One issue that the Advisory Panel cannot be said to have replicated is that of a SLAPPback right because its report does not even address it. A SLAPPback right is a “countersuit in which targets [of a SLAPP lawsuit]… sue the filers for injuries and losses caused by the SLAPP.”[58] Penelope Canan and George W. Pring concede that it is ironic that “the cure [to a SLAPP lawsuit] is a dose of the same disease”, but maintain that SLAPPbacks are different from SLAPPs. Writing from an American perspective, they argue that a SLAPP lawsuit is an abuse of the court system, a violation of constitutional rights, and an unconstitutional effort to chill public participation.[59] In comparison, SLAPPbacks are an acceptable use of the court system because they defend constitutional rights and create accountability for filers that cause injuries to others.[60] They address situations where the defendant receives a costs award for its legal expenses yet is uncompensated for bad faith or abuse of process by a plaintiff.[61] Finally, many American scholars have endorsed SLAPPbacks based on the deterrent effect they have on the initiation of SLAPP lawsuits.[62]

There are different approaches to the content of a SLAPPback provision. Tollefson suggests a provision that allows the defendant to recover costs as well as actual and punitive damages for bad faith or abuse of process by the plaintiff without having to initiate a separate claim for abuse of process.[63] In some U.S. states defendants must exercise the SLAPPback either in a separate claim or as a cross-claim or counterclaim in the original proceeding.[64]

An example of one jurisdiction that adopts the latter approach is the State of New York. According to §70-a(2)(a) of the Civil Practice Rules, a defendant that seeks costs and legal fees must show that the SLAPP action lacked substantial basis in fact and law, and cannot be supported by a “substantial  argument  for  the  extension, modification or reversal of existing law”.[65] Other compensatory damages may be recovered if the defendant shows that the action was commenced “for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.”[66] The defendant may also be able to recover punitive damages if the action was commenced solely for any of the aforementioned purposes.[67] This type of provision is superior to existing tests located in the Ontario Rules of Civil Procedure because it explicitly addresses the nature of SLAPPs. While opponents to anti-SLAPP legislation argue that civil procedure rules provide an existing, albeit unexploited, remedy to SLAPPs, it has been conceded by many that, in practice, the scope of those rules are too limited to address SLAPPs.[68] Further, a SLAPPback has a deterrent effect while subsidiary claims provided for in provincial rules of civil procedure do not.

4. Expedited Procedure

The main thrust of the Advisory Panel’s approach to anti-SLAPP legislation is a special expedited procedure that would address the mischief that SLAPPs wreak through the various steps of the litigation process. It maintains this position despite big business’ arguments that existing law offers satisfactory remedies against abusive litigation.[69] In B.C. and Australia the same argument was raised by big business and the law society, respectively. However, like its counterparts in those jurisdictions, the Panel recognizes that an expedited procedure will make it easier and cheaper for defendants to challenge SLAPPs.

The expedited procedure proposed by the Advisory Panel addresses the shortcomings in existing procedural rules by providing for short timelines and reduced evidentiary requirements via motions for relief and appeal. In its recommended procedure, the defendant shall be allowed to serve on the plaintiff notice for relief accompanied by affidavit evidence.[70] Then the plaintiff has fourteen days to respond to the motion by filing affidavit evidence.[71] Out of court cross-examination of the affidavits by the parties is to occur within seven days after the plaintiff delivers its affidavit evidence.[72] Further, there is a one day maximum for each side to conduct cross-examination.[73]

At least three days prior to the hearing of the defendant’s motion, factums are to be delivered.[74] The actual motion is to be heard within sixty days of the filing.[75] The Advisory Panel’s expertise is reflected in its clever recommendation that the plaintiff be barred from taking any further step in the SLAPP proceeding until the defendant’s motion is decided.[76] This recommendation prevents the plaintiff from undermining the efficiency of the expedited process by engaging in other tactical steps. The process balances the integrity of the process with access to justice for the plaintiff with the exception that the latter may apply for an injunction where serious harm has occurred or there is a threat of serious harm.[77]

The consequences of the motion reflect deterrence against filing SLAPP lawsuits. The most obvious deterrent is the dismissal of cases that fail to meet the public participation test discussed above. Other benefits of dismissal include awarding full indemnity costs to the defendant[78] and a presumption that the pleadings cannot be amended.[79] As well, the defendant could receive damages where the court finds bad faith or improper motive on the part of the plaintiff.[80] These components of the expedited procedure establish the foundation for a potentially effective deterrent effect. Unfortunately, these components are only procedural in nature. They can filter out SLAPP lawsuits but they do not go far enough.

A filtering mechanism does not proactively prevent SLAPPs; it still allows them to function, albeit in a reduced capacity, by giving the plaintiff access to the courts. Defendants require a positive right to public participation that insulates their lawful conduct and communication from challenge. That right, in conjunction with the procedure proposed by the Panel would serve as a comprehensive mechanism for deterring SLAPPs

5. Costs

Another component of a comprehensive mechanism for deterring SLAPPs is special rules for advance cost orders. The Panel acknowledges that common law advance cost orders for matters of public interest are rare, though refuses to endorse statutory provisions providing for them because of its belief that the speed of the procedure coupled with full indemnity costs for successful defendants will be an effective remedy for the imbalance of resources between the parties.[81] These short timelines and reduced evidentiary requirements will counteract some of the damage-inflicting components of SLAPPs.

A potential weakness of the Panel’s approach to cost awards is that cost awards in general can be ineffective in deterring SLAPPs. Costs awards, even full indemnity costs, are perceived to be a cost of doing business for large corporate plaintiffs.[82]  As well, the requirement that a defendant be successful in its motion for relief in order to access those full indemnity costs may be impractical in light of the lack of accessible advance cost orders. If a defendant lacks crucial financial resources during the actual proceedings, then the likelihood of its success is significantly reduced. The speed of the proceedings will alleviate the overall time and financial resources considerations, but a quick proceeding that is ill-defended will not serve to remedy the financial imbalance between the parties when it really matters. Even more damaging to the Panel’s position is the observation by Sharon Beder that if a defendant cannot afford legal counsel, then it may lose for not following the proper procedure.[83] At the risk of underestimating the capabilities of self-represented defendants, it must be acknowledged that the latter may not understand the proposed expedited procedure regardless of its relative simplicity.

6. Funding

The Panel does not make any recommendation about the funding for defendants,[84] it does make some related comments that are worthy of criticism. First, it states that the prospect of a full indemnity award could encourage legal counsel to represent defendants on a contingency fee.[85] While there is willingness for some legal counsel engage in contingency fee arrangements, the Panel seems to have forgotten the effect of the notorious application for $3.2 million in costs at the OMB that extended to the defendants’ lawyers. Coupled with the recent confirmation by the insurer for Ontario lawyers that SLAPPs present the risk of large unanticipated cost consequences, it is reasonable to expect that some lawyers will be deterred from taking on clients notwithstanding the possibility of a full indemnity award. The Panel’s comment appears to be naive in light of these recent events.

Second, the Panel’s “hope” that its expedited procedure and remedies will reduce the need for a legal aid fund for impecunious defendants may not pan out. [86] In all fairness to the Panel, it does state that a fund would be “attractive” but at the same time, recognizes that “public money is scarce”.[87] The Panel adds that it lacks the expertise to address this issue and that the matter is properly within the government’s responsibility. While these conclusions are proper for the Panel to make, the Panel could have addressed alternative sources of funding for a legal aid fund.

For example, the plaintiff with an illegitimate claim could be required to repay the amount of money that the defendant had to request from a fund that is initially established by government or private funding. In the alternative, the entire fund could be self-funded by unsuccessful plaintiffs for the use of future defendants.  These suggestions demonstrate that there are several creative recommendations that the Panel could have made, and yet failed to, in order to address the issue of funding of legal aid for impecunious defendants.

7. Personal Liability for Directors and Officers

The Panel’s recommendation regarding personal liability for directors and officers for costs and damages leaves a lot to be desired. This issue is relevant in the context of a plaintiff corporation that has insufficient assets or is judgement proof. The Panel notes that personal liability for directors and officers would require processes similar to that in corporate law. It states that “[s]ome method might have to be found to record directors’ dissent from the decision to sue, to avoid penalizing those who have opposed the commencement of the action found to have been unmeritorious.”[88] Since such a method would be “unduly complex and unnecessary to provide a full remedy for the defendant”[89], the Panel does not recommend personal liability for directors and officers.

The Panel’s position is untenable given that corporate law statutes already adequately address personal liability for directors and officers in other contexts. For example, in corporate law statutes an individual director may not be held personally liable for a decision of the majority of the board where he or she registers his or her dissent.[90] There are also provisions that address corporate governance issues such as the standard of care and defences for directors, as well as indemnification and insurance for both directors and officers. Unless there is some reason why plaintiffs that initiate SLAPP lawsuits would be excluded from the application of corporate law statutes then it is unclear why the Panel considers this issue to be so difficult to address that it refuses to recommend personal liability for directors and officers. Closer scrutiny of existing corporate law statutes may reveal to the Panel that it is unnecessary to exclude personal liability provisions when there may be existing legislation to either deal with the intricacies of this issue or act as a model for developing anti-SLAPP legislation.

Given that the Panel did not recommend personal liability for directors and officers, and thus did not provide any suggestions as to the type of statutory language that would be used in such a provision, it is useful to look to existing provisions for guidance. In the Code of Civil Procedure of Québec s. 54.6 states:

If a legal person or an administrator of the property of another resorts to an improper use of procedure, the directors and officers of the legal person who took part in the decision or the administrator may be ordered personally to pay damages.

As mentioned above, the use of the “improper use” device is problematic given the difficulty of proving intention and primary purpose of the plaintiff was to deter public participation. Further, there does not appear to be any discretion for the court to exercise in s. 54.6 where the plaintiff has sufficient assets. If that is the case, then it may be unnecessary for a successful defendant to turn to the directors and officers. The advantage of s. 54.6 is that it somewhat addresses the Panel’s concern about holding directors and officers personally liable where they dissented to a decision of the majority of the board through the requirement that the person take part in the decision. Section 54.6 also demonstrates that one legislature was able to navigate through the perceived complexity of personal liability and directly legislate on the issue.

8. Qualified Privilege

The Panel’s recommendation in favour of a statutory defence of qualified privilege to the tort of defamation is suitable for anti-SLAPP legislation in Ontario, though with some caveats. In order to explain these caveats, the common law on qualified privilege must first be explained. Qualified privilege is a defence the tort of defamation. The latter is a “strict liability” tort, in that it can be proved in the absence of intention to do harm when three requirements are satisfied:

1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2. that the words in fact referred to the plaintiff; and
3.  that the words were published, meaning that they were communicated to at least one person other than the plaintiff.[91]

Once the plaintiff satisfies all three requirements, the burden then shifts to the defendant to assert the defence. Qualified privilege only attaches to the occasion upon which the communication is made, and not to the communication itself.[92] In Hill v. Church of Scientology of Toronto the Supreme Court of Canada quoted the following passage from the House of Lord’s decision in Adam v. Ward[93] to explain the difference:

a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.[94]

By focusing on the occasion on which the communication is made, the defence ensures that communications that benefit the greater good of society are made freely. If the occasion is privileged, then the communication is presumed to be bona fide and thus can be freely published with impunity. However, the privilege is “qualified” and not absolute; the privilege can be defeated if the defendant acted with malice.

In light of the key role that qualified privilege plays in protecting communications that promote the well-being of society, the Panel recommends that a statutory version of the defence be included in the legislation. The statutory defence would apply “where a person with a direct interest in a subject of public interest makes statements on that subject to persons who have a direct interest in that subject.”[95] Like its common law counterpart, the defence would be defeated by proof of malice. As well, the communication must be made between people that have an interest in the matter. This requirement of common interest or “reciprocity” is particularly attractive to the Panel, who uses it to justify the wholesale adoption of the common law formulation of the defence. Freedom of expression in favour of the defendant is balanced by the circumscription of the scope of the defence through the direct interest requirement. Correspondingly, the Panel is able to achieve its mandate of creating a balanced response to SLAPPs.

Notwithstanding the benefits of this balanced response, the wholesale adoption of the common law formulation of the defence may be problematic in the context of environmental matters. In particular, the requirement that the defendant have a direct interest seems at odds with case law on public interest standing in relation to environmental matters. Specifically, the case law indicates there is judicial willingness to consider NGOs that lack proximity to the matter to have a direct interest.

A case in point is the decision of MiningWatch Canada v Canada (Minister of Fisheries & Oceans).[96] MiningWatch sought to challenge a decision regarding an environmental assessment of a mining project, but the issue arose whether it had standing. The latter was an issue because s. 18.1(1) of the Federal Courts Act states that an application for judicial rule may be made by “anyone directly affected by the matter in respect of which relief is sought”[97] (emphasis added). The Federal Court held that the phrase “directly affected” should not be given a narrow meaning so to restrict the pool of applicants for judicial review of a federal administrative decision-maker. In exercising its discretion to grant standing, the Court noted that the purpose of the Canadian Environmental Assessment Act was to ensure that timely and meaningful public participation and consultation occurs in relation to projects that require an environmental assessment. In circumstances where a NGO and not local citizens apply for standing, a court will consider whether the applicant has a “long standing reputation and … must do significant work on the subject-matter of the challenge, and its interest must be greater than that possessed by a member of the general public”.[98] The Court’s grant of standing to a NGO seeming to have no direct interest in the matter in MiningWatch demonstrates judicial willingness to facilitate public participation, notwithstanding the lack of immediate interest in environmental matters. There is recognition that in the absence of local representation, there would be no one to advance the public’s interest in environmental matters without the involvement of NGOs.

Caselaw on NGO public interest standing is relevant to qualified privilege because it indicates that the Panel’s requirement for a direct interest may be unduly restrictive. These organizations, which have taken on a leadership role on environmental issues, will be excluded from the protection of the statutory defence in the absence of a direct interest. As indicated in the MiningWatch decision, it is harsh to deny this defence when there does not appear to be any one from the community to advance the public interest. Especially since the financial toll and waste of resources associated with SLAPPs can deter individuals from communicating on issues that are directly interested it, it seems counterintuitive to create a statutory defence that ignores that effect. It is for that reason that the balance that the Panel wishes to achieve in a statutory defence may not in fact be achieved effectively.

Conclusion

The current provincial government has taken the first step towards disarming weapons against public participation with the creation of the Advisory Panel. Now that the latter has fulfilled its mandate, the responsibility rests with the new provincial government to assess which of the Panel’s recommendations are suitable and to take the initiative to legislate in a creative and effective manner. This article has attempted to facilitate that process by reviewing and making recommendations. Having completed this “fresh eyes” review of the recommendations, it is concluded that the Panel’s blueprint for anti-SLAPP legislation provides some of the basic elements of anti-SLAPP legislation, but is in need of substantial revision on key issues.

The basic criticism of the recommendations is that it lacks the teeth necessary to deter SLAPPs. While an expedited procedure for SLAPPs would undermine the damage-inflicting components of SLAPPs, which are to waste the resources of defendant, there is glaring lack of substantive rights that would affirmatively protect public participation. Cutting down on the cost and time for adjudicating SLAPP lawsuits will not necessarily deter plaintiffs when litigation is seen as a cost of doing business. It is for that same reason that full indemnity cost awards for successful defendants will not effectively combat SLAPPs alone. The only way to truly disarm SLAPPs is to couple the expedited procedure proposed by the Panel with substantive rights. Among other optional rights, a right to public participation is necessary to create a safe space for the dissemination of a variety of viewpoints in civil society. Without such right, the public participation in issues of public concern will continue to decrease and the democratic process will become an institution for advancing corporate interests over that of the public good.