The Ministry of the Attorney General has published the report of the Anti-SLAPP Advisory Panel. The report is on the Ministry’s web site at: http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/anti_slapp_final_report_en.pdf. The panel adopted most of the Ontario Bar Association recommendations that I helped to develop and present this summer. Here are the Panel’s conclusions:
SUMMARY OF RECOMMENDATIONS
1. Ontario should adopt “anti-SLAPP” legislation. [paragraph 10] 2. The legislation should include a purpose clause for the benefit of judicial
interpretation. [18] 3. The language of the legislation should not include the term “SLAPP” but
rather emphasize the importance of (a) protecting expression on matters of public interest from undue interference, and (b) promoting the freedom of the public to participate in matters of public interest through expression. [22]
Issue 1: A test for courts to quickly recognize a SLAPP
4. Protection of public participation does not require the creation of a new ‘right’ [27]
5. Instead, new legislation should broadly define a sphere of activity to be protected by a special procedure. The protected activity should include all communications on matters of public interest, and not be limited to communications directed to a public body. [29]
6. The lawsuits to be subjected to remedies should be judged by their effect, not their purpose or the motive of the plaintiff. [35]
7. The test has several steps: [38] a. Defendant has to show that the case involves the protected activity of
public participation. b. Burden then shifts to plaintiff to show that:
i. The case has substantial merit ii. There are substantial grounds to believe that no valid defence
exists, and iii. The harm it has suffered outweighs the harm done to the public
interest (especially in freedom of expression) by allowing the action to continue.
Issue 2: Appropriate remedies for SLAPP suits
8. A motion for a remedy for a suit against public participation should be heard within 60 days of filing. [41]
a. No further steps in the proceeding may be taken until the motion is decided. [42]
b. A fast track appeal should be provided. [43] 9. If a suit fails to meet the test, the case should be dismissed. [44] 10. If the case is dismissed, full indemnity costs should be awarded to the defendant. [44] a. If the case is not dismissed, the court should in its discretion consider
whether costs should be awarded in favour of the plaintiff, whether an award of costs should await the outcome of the proceeding, or whether
there should be no award of costs. [44] b. If the case is dismissed, there should be a presumption that the pleadings
may not be amended. [45] 11. If the court finds bad faith or improper motive on the part of the plaintiff, the
court should award damages to the defendant in such amount as is just. [46] 12. While the motion is pending, related proceedings before public bodies involving the plaintiff should be suspended. [47] a. This rule is subject to the discretion of the court to relieve against this
provision to avoid substantial hardship in a particular case. [48] 13. The Panel makes no recommendation about funding for defendants. [50] 14. There should be no special rules about advance cost orders. [51] 15. There should be no special rules about case management. [52] 16. There should be no special remedies against directors and officers. [53] 17. There should be no special remedies against lawyers for plaintiffs. [54, 55]
Issue 3: Appropriate limits to the protection of anti-SLAPP legislation
18. There should be no prescribed statutory limitations on the expression on matters of public interest protected by the legislation. The limits of freedom of expression on matters of public interest are already the subject of extensive Canadian jurisprudence. The specific limits of expression on matters of public interest should continue to be a matter for the courts, to be determined on a case by case basis. [57, 59]
Issue 4: Appropriate parties to benefit from the protection of anti-SLAPP legislation
19. No one should be excluded automatically from the protection of the legislation. [62]
a. Any party seeking protection of the legislation will have to show that its communication in issue has been on a matter of public interest. [62]
Issue 5: Methods to prevent abuse of anti-SLAPP legislation
20. There should be no special safeguards to prevent abuse. The balancing of interests at the heart of the remedy will allow appropriate disposition of cases. Cost sanctions against parties who bring frivolous motions for protection will be available to provide a remedy against any such abuse, and to deter it. [67]
Other related matters
21. Qualified privilege should be extended to persons with a direct interest in a matter of public interest communicating to others with a direct interest, even if media are present or report on it. [75]
22. Although there is a wide variety of administrative tribunals, the general cost rules in the Statutory Powers Procedure Act already reflect appropriate principles. [82]
23. The SPPA should provide that applications for costs must be in writing, unless this would cause significant prejudice to a party.[87]
24. An unsuccessful applicant for costs before an administrative tribunal should pay to intervenors a full indemnity for the costs relating to the application.[87]
25. Corporations’ right to sue for defamation should not be limited at this time. [90]
26. Corporations’ right to deduct litigation costs from taxable revenue should not be affected at this time. [91]
27. Politicians’ right to sue for defamation should not be further restricted at this time. [93]
The government is open to comments on the report and its recommendations, ideally by the beginning of February 2011. The addresses for comments are the same as for submissions to the Panel last summer: [email protected], or, by post,
SLAPP Suggestions
7th floor
720 Bay Street
Toronto ON M7A 2S9