BC’s anti-SLAPP legislation

What is anti-SLAPP legislation?

The BC gov­ern­ment just rein­tro­duced their anti-SLAPP bill.Update: the BC Legislature unanimously passed the bill on March 7, 2019. SLAPP stands for “strate­gic lit­i­ga­tion against pub­lic par­tic­i­pa­tion.” These are gen­er­al­ly defama­tion law­suits that sup­press some­body’s speech.

Consider a doc­tor who writes a blog post that is crit­i­cal of an­oth­er doc­tor’s puffed-up claims re­gard­ing the effectiveness of a drug. That sec­ond doc­tor might try to use a defama­tion law­suit in or­der to co­erce the first doc­tor (the au­thor of the crit­i­cal blog post) to back down. Even if the first doc­tor would have a valid de­fence (e.g. be­cause they’ve only stat­ed the truth) it can be so cost­ly to de­fend one­self that they might think that their only vi­able op­tion is to take down the blog.Tobinick v Novella, No 15-14889 (11th Cir 2017).

That is a SLAPP. You can find many oth­er sto­ries at anti-slapp.org.

Anti-SLAPP leg­is­la­tion pro­vides de­fen­dants (the speak­ers/writ­ers) in these law­suits with an easy way to get the case dis­missed, ear­ly on in the process. This great­ly low­ers the costs for in­no­cent speak­ers. Anti-SLAPP leg­is­la­tion also makes it much more like­ly that a de­fen­dant who suc­ceeds in an anti-SLAPP mo­tion to have those costs paid for by the plaintiff.

I’ll clar­i­fy some ter­mi­nol­o­gy that I’ll use through­out the ar­ti­cle:

• plaintiff : the per­son who brought the orig­i­nal defama­tion suit / pro­ceed­ings
• de­fen­dant : the per­son who made the ex­pres­sion at is­sue in the defama­tion suit / pro­ceed­ings
• pro­ceed­ings : that un­der­ly­ing defama­tion law­suit
• ap­pli­cant : the de­fen­dant, who has made (ap­plied for) an anti-SLAPP mo­tion, try­ing to have the pro­ceed­ings dis­missed
• re­spon­dent : the plaintiff, who is re­spond­ing to the anti-SLAPP mo­tion, try­ing to keep the pro­ceed­ings alive

BC’s Protection of Public Participation Act

BC’s forth­com­ing anti-SLAPP leg­is­la­tion is in the Protection of Public Participation Act (BC PPPA).Bill 2, Protection of Public Participation Act, 4th Sess, 41st Leg, British Columbia, 2019 [BC PPPA]. It’s a short read, and writ­ten pret­ty clear­ly.

This is a re-in­tro­duc­tion of last ses­sion’s Bill 32, which stalled out, seem­ing­ly be­cause of some in­ter­est in see­ing how Ontario’s very sim­i­lar actProtection of Public Participation Act, SO 2015, c 23. would play out in their courts.Shannon Waters: “I poked at Bill 32 for months, trying to find out why it stalled. @jjhorgan said BC doesn’t want run into the same issues Ontario did. […] I asked the premier about the bill, he referenced court challenges in Ontario but the attorney general’s ministry would not confirm what, if any, issues related to Ontario’s legislation held up BC’s bill.” The BC PPPA is iden­ti­cal to last ses­sion’s Bill 32 with one ex­cep­tion: the new ver­sion will ap­ply to any pro­ceed­ings com­menced on or af­ter May 15, 2018 (the date when last ses­sion’s Bill 32 re­ceived first read­ing). The old ver­sion would have had the Act ap­ply to pro­ceed­ings com­menced “at any time be­fore or af­ter this Act comes into force.” So, the new ver­sion is now more like Ontario’s which ap­plies to pro­ceed­ings “com­menced on or af­ter the day the Protection of Public Participation Act, 2015 re­ceived first read­ing.”

Highlights and comparisons with other models

There are very few differences be­tween the BC Act, the Uniform Law Conference of Canada’s Uniform Protection of Public Participation ActUniform Law Conference of Canada, Uniform Protection of Public Participation Act, 2017., and Ontario’s Act. This is be­cause the BC PPPA is based on the Uniform Act which is in turn based on the Ontario Act.“Bill C-32, Protection of Public Participation Act”, 1st read­ing, British Columbia, Official Report of Debates (Hansard), 41-3, No 137 (15 May 2018) at 4742. Or, watch the video!

The core pro­vi­sion of each of these acts is es­sen­tial­ly iden­ti­cal.BC PPPA, supra note 3, cl 4(2)(b). It re­quires the anti-SLAPP ap­pli­cant (the de­fen­dant) to es­tab­lish first that the pro­ceed­ings re­late to ex­pres­sion made by the ap­pli­cant that re­lates to a mat­ter of pub­lic in­ter­est. If the ap­pli­cant shows this, then the bur­den shifts to the anti-SLAPP re­spon­dent (the plaintiff) to con­vince the judge that the case has sufficient mer­it and that the pub­lic in­ter­est weighs in favour of al­low­ing the pro­ceed­ings to con­tin­ue.

Another es­sen­tial piece is how costs are han­dled. If the anti-SLAPP ap­pli­cant suc­cess­ful­ly gets the lit­i­ga­tion dis­missed, they are en­ti­tled, as a start­ing point, to full costs in the anti-SLAPP mo­tion and in the un­der­ly­ing pro­ceed­ing. And if the court finds that the plaintiff brought the orig­i­nal pro­ceed­ing on bad faith, they can award dam­ages to the anti-SLAPP ap­pli­cant. On the oth­er hand, if the anti-SLAPP mo­tion is not suc­cess­ful, and the pro­ceed­ing is not dis­missed, the anti-SLAPP re­spon­dent (the plaintiff) is not en­ti­tled to costs. This is a very de­fen­dant-friend­ly costs regime.Ibid, cls 7–8.

BC and Ontario both differ from the Uniform Act re­gard­ing what pro­ceed­ings they will ap­ply to. The Uniform Act rec­om­mends that the Act ap­ply to any pro­ceed­ings when­ev­er they were com­menced. BC’s and Ontario’s both only ap­ply to pro­ceed­ings com­menced af­ter a cer­tain date.

The BC PPPA re­quires that “on an ap­pli­ca­tion for a dis­missal or­der un­der sec­tion 4, ev­i­dence must be giv­en by affidavit.” Neither the Uniform Act nor Ontario’s Act have this re­stric­tion, al­though they seem to con­tem­plate it, by pro­vid­ing lim­i­ta­tions on the time that par­ties can spend cross-ex­am­in­ing on doc­u­men­tary ev­i­dence.

The Uniform Act and Ontario’s Act re­quire that the anti-SLAPP mo­tion be heard with­in 60 days of filing. The BC PPPA re­quires that the anti-SLAPP mo­tion be heard as soon as prac­ti­ca­ble.

An in­ter­est­ing piece is how anti-SLAPP mo­tions in­ter­act with ad­min­is­tra­tive or tri­bunal pro­ceed­ings. Once a de­fen­dant has filed an anti-SLAPP mo­tion, they can use that no­tice of ap­pli­ca­tion to put the ad­min­is­tra­tive pro­ceed­ing on hold.Ibid, cl 11. The Uniform Law Conference ex­plains:

This pro­vi­sion aims to give a prospec­tive plaintiff rea­son to think care­ful­ly be­fore launch­ing a law­suit against its crit­ics. Often such a par­ty has some oth­er official pro­ceed­ing go­ing on, such as an ap­pli­ca­tion for re­zon­ing or a build­ing per­mit. If that pro­ceed­ing will be stayed pend­ing the de­ter­mi­na­tion of a mo­tion to dis­miss un­der the present statute, that po­ten­tial de­lay may be more im­por­tant to the plaintiff than get­ting a rem­e­dy for the de­fen­dant’s ex­pres­sion.

There is also some­thing spe­cial about Canadian anti-SLAPP leg­is­la­tion com­pared to US anti-SLAPP leg­is­la­tion. Canadian leg­is­la­tion tells the court to ask whether “the harm like­ly to have been or to be suffered by the re­spon­dent as a re­sult of the ap­pli­cant’s ex­pres­sion is se­ri­ous enough that the pub­lic in­ter­est in con­tin­u­ing the pro­ceed­ing out­weighs the pub­lic in­ter­est in pro­tect­ing that ex­pres­sion.”Ibid, cl 4(2)(b). In or­der to pro­ceed af­ter the de­fen­dant has proven their side of an anti-SLAPP mo­tion, the plaintiff has to con­vince the court (among oth­er things) that the ex­pres­sion at is­sue is caus­ing them se­ri­ous enough harm to war­rant putting that ex­pres­sion to the test of a full-fledged defama­tion lit­i­ga­tion.

This kind of bal­anc­ing is not found in the Institute for Justice’s Model Anti-SLAPP Legislation (see sec­tion 100.6 (1)).

What does it mean?

Again, the BC PPPA is real­ly short, so do read it, but the main pro­vi­sion is clause 4:

4 (1) In a pro­ceed­ing, a per­son against whom the
pro­ceed­ing has been brought may ap­ply for a dis­missal or­der un­der
sub­sec­tion (2) on the ba­sis that

    (a) the pro­ceed­ing aris­es from an ex­pres­sion made by the
    ap­pli­cant, and

    (b) the ex­pres­sion re­lates to a mat­ter of pub­lic in­ter­est.

  (2) If the ap­pli­cant satisfies the court that the pro­ceed­ing aris­es
  from an ex­pres­sion re­ferred to in sub­sec­tion (1), the court must
  make a dis­missal or­der un­less the re­spon­dent satisfies the court
  that

    (a) there are grounds to be­lieve that

      (i) the pro­ceed­ing has sub­stan­tial mer­it, and

      (ii) the ap­pli­cant has no valid de­fence in the pro­ceed­ing, and

    (b) the harm like­ly to have been or to be suffered by the
    re­spon­dent as a re­sult of the ap­pli­cant's ex­pres­sion is se­ri­ous
    enough that the pub­lic in­ter­est in con­tin­u­ing the pro­ceed­ing
    out­weighs the pub­lic in­ter­est in pro­tect­ing that ex­pres­sion.

This is pret­ty much iden­ti­cal to sec­tions 137.1(3) and (4) from Ontario’s Act.

Ontario’s Court of Appeal re­cent­ly had a chance to clar­i­fy what all of this means in 1704604 Ontario Ltd v Pointes Protection Association.1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685. Because this is an Ontario court’s de­ci­sion, it doesn’t con­trol what BC courts will do, but the Ontario Court of Appeal’s de­ci­sion will be high­ly per­sua­sive.

This de­ci­sion starts with some nice con­text about SLAPPs and anti-SLAPP leg­is­la­tion be­fore get­ting into the de­tails of the par­tic­u­lar case and then in­ter­pre­ta­tion of Ontario’s anti-SLAPP leg­is­la­tion at para­graph 27.

Paragraph 30 is re­veal­ing. It ex­plains the gen­e­sis of the harm-bal­anc­ing pro­vi­sion (4(2)(b), in BC). Ontario’s Anti-SLAPP Advisory Panel ob­served in its re­port:

If an ac­tion against ex­pres­sion on a mat­ter of pub­lic in­ter­est is based on a tech­ni­cal­ly valid cause of ac­tion but seeks a rem­e­dy for only insignificant harm to rep­u­ta­tion, busi­ness or per­son­al in­ter­ests, the ac­tion’s neg­a­tive im­pact on free­dom of ex­pres­sion may be clear­ly dis­pro­por­tion­ate to any valid pur­pose the lit­i­ga­tion might serve.

The de­ci­sion also quotes from the Ontario’s Attorney General dur­ing the leg­isla­tive de­bates:

I strong­ly be­lieve that the law must de­fend rep­u­ta­tion, but not at any cost and not in every case. I do not be­lieve that a mere tech­ni­cal case—with­out ac­tu­al harm—should be al­lowed to sup­press the kind of de­mo­c­ra­t­ic ex­pres­sion that is cru­cial for our de­moc­ra­cy.

This seems to be the crux of an anti-SLAPP mo­tion and I think most of the work will be done at this bal­anc­ing stage.

The court also dis­tin­guish­es the Ontario Act from now-re­pealed British Columbia anti-SLAPP leg­is­la­tion from 2001. That 2001 act fo­cused on the plaintiff’s mo­tive or pur­pose as a de­ter­mi­na­tive fac­tor. Modern anti-SLAPP leg­is­la­tion based on Ontario’s mod­el “in­stead as­sess­es the po­ten­tial mer­its of the claim and the effects of per­mit­ting the claim to pro­ceed on com­pet­ing com­po­nents of the pub­lic in­ter­est.”

The court goes on to split up the anti-SLAPP analy­sis into stages, based on the text of the core pro­vi­sion.

1. The threshold requirement

First, the de­fen­dant (the anti-SLAPP ap­pli­cant) needs to es­tab­lish on the bal­ance of prob­a­bil­i­ties that (a) the pro­ceed­ings arise from ex­pres­sion made by the de­fen­dant, and (b) the ex­pres­sion re­lates to a mat­ter of pub­lic in­ter­est.

“Expression” is defined very broad­ly in the act: “any com­mu­ni­ca­tion, whether it is made ver­bal­ly or non-ver­bal­ly, pub­licly or pri­vate­ly, and whether it is di­rect­ed or not di­rect­ed at a per­son or en­ti­ty.”

The trick­i­er part is de­ter­min­ing whether an ex­pres­sion re­lates to a mat­ter of pub­lic in­ter­est.

Here, the court says that the prin­ci­ples from Grant v Torstar CorpGrant v Torstar Corp, 2009 SCC 61. are ap­plic­a­ble. The ques­tion is to be an­swered ob­jec­tive­ly, in con­text, and in the en­tire­ty of the com­mu­ni­ca­tion. An ex­pres­sion might have more than one mat­ter. If one of those mat­ters is a “mat­ter of pub­lic in­ter­est”, that is enough. It is enough that “some seg­ment of the com­mu­ni­ty has a gen­uine in­ter­est” in the mat­ter of the ex­pres­sion. But, that must be more than cu­rios­i­ty or pruri­ent in­ter­est. This also isn’t about as­sess­ing the im­pact on the is­sue to which it is di­rect­ed. The judge is not to ask whether the ex­pres­sion has a beneficial im­pact on the is­sue.

The de­fen­dant (the anti-SLAPP ap­pli­cant) needs to show all of that: that the pro­ceed­ings arise from their ex­pres­sion re­lat­ing to a mat­ter of pub­lic in­ter­est. If they can do so, then the bur­den shifts to the plaintiff to sat­is­fy the judge that their case should go for­ward nonethe­less. This path has two parts: a mer­its-based hur­dle, and a harm-bal­anc­ing hur­dle.

2a. The merits-based hurdle

(2) If the ap­pli­cant satisfies the court that the pro­ceed­ing aris­es
from an ex­pres­sion re­ferred to in sub­sec­tion (1), the court must make
a dis­missal or­der un­less the re­spon­dent satisfies the court that

  (a) there are grounds to be­lieve that

    (i) the pro­ceed­ing has sub­stan­tial mer­it, and

    (ii) the ap­pli­cant has no valid de­fence in the pro­ceed­ing, and

The stan­dard here is also a bal­ance of prob­a­bil­i­ties. The judge needs to be satisfied that there are rea­son­able grounds to be­lieve that there is sub­stan­tial mer­it to the claim and that the de­fen­dant has no valid de­fence. The court em­pha­sizes that this is just ju­di­cial screen­ing, not a sum­ma­ry judge­ment. The very lim­it­ed pro­ce­dure al­lowed dur­ing an anti-SLAPP mo­tion doesn’t al­low ei­ther side to put their “best foot for­ward”. The judge is not to do a deep dive into the cred­i­bil­i­ty of the affiants or mer­its. The ques­tion is just whether “whether, on the en­tire­ty of the ma­te­r­i­al, there are rea­son­able grounds to be­lieve that a rea­son­able tri­er could ac­cept the ev­i­dence.”

With re­spect to the “no valid de­fence” ques­tion, the plaintiff only needs to ad­dress the de­fences ad­vanced by the de­fen­dant in their plead­ings or in their anti-SLAPP mo­tion. The judge needs to be con­vinced that a tri­er of fact could con­clude that none of the de­fences would suc­ceed. If that is con­clu­sion is rea­son­ably avail­able, the plaintiff has met the onus.

2b. The harm-balancing hurdle

Even if the plaintiff meets the mer­its-based hur­dle above, they also need to show that:

the harm like­ly to have been or to be suffered by the re­spon­dent as a
re­sult of the ap­pli­cant's ex­pres­sion is se­ri­ous enough that the pub­lic
in­ter­est in con­tin­u­ing the pro­ceed­ing out­weighs the pub­lic in­ter­est in
pro­tect­ing that ex­pres­sion.

This means that some claims will be ter­mi­nat­ed here, even though they could suc­ceed on their mer­its at tri­al.

I think this is where most cas­es will be de­cid­ed. Given the low ev­i­den­tiary stan­dard for the oth­er steps, I can imag­ine most par­ties meet­ing their bur­dens there, forc­ing the judge to grap­ple with this bal­anc­ing de­ci­sion.

The plaintiff must sat­is­fy the mo­tion judge that the harm caused to it by the de­fen­dant’s ex­pres­sion is “sufficiently se­ri­ous” that the pub­lic in­ter­est en­gaged in al­low­ing the plaintiff to pro­ceed with the claim out­weighs the pub­lic in­ter­est in pro­tect­ing the de­fen­dant’s free­dom of ex­pres­sion.

The harm can be in the form of mon­e­tary dam­ages, but non-mon­e­tary harm also counts: rep­u­ta­tion, pri­va­cy, and harm to in­her­ent lib­er­ty and se­cu­ri­ty in­ter­ests.

On an anti-SLAPP mo­tion, the judge needs only enough ma­te­r­i­al to be able to work out an es­ti­mate of quan­ti­ta­tive dam­ages. This doesn’t need to be ful­ly de­vel­oped ev­i­dence. The judge is to make a com­mon sense read­ing and only needs to see that the chal­lenged ex­pres­sion is causal­ly con­nect­ed to harm that is more than nom­i­nal. The plaintiff can’t just rely on bald as­ser­tions.

That harm needs to be weighed against the pub­lic in­ter­est in pro­tect­ing the ex­pres­sion at is­sue.

The term “pub­lic in­ter­est” in this clause here takes on a different mean­ing than in a “mat­ter of pub­lic in­ter­est” in the thresh­old stage (which re­ferred to the con­tent of the ex­pres­sion). Here, the term “pub­lic in­ter­est” means some­thing more like “pub­lic benefit”. At this stage, it is rec­og­nized that some forms of speech are less de­serv­ing of a shield against full lit­i­ga­tion: “de­lib­er­ate false­hoods, gra­tu­itous per­son­al at­tacks, vul­gar or offensive lan­guage” might at­tract less pro­tec­tion from lit­i­ga­tion than “the same mes­sage with­out the lies, vit­ri­ol, and ob­scen­i­ties.” The court also con­sid­ers ev­i­dence of ac­tu­al li­bel chill in this part of the bal­anc­ing: if al­low­ing the lit­i­ga­tion to pro­ceed would dis­cour­age oth­er sim­i­lar­ly-sit­u­at­ed speak­ers, that might weigh in favour of dis­miss­ing the case.

If the pub­lic in­ter­est in al­low­ing the lit­i­ga­tion to pro­ceed (tak­ing into ac­count the harm to the plaintiff) out­weighs the pub­lic in­ter­est in pro­tect­ing the ex­pres­sion at is­sue, then, as long as the plaintiff has also met the mer­its-based hur­dle, the anti-SLAPP mo­tion will be dis­missed and the lit­i­ga­tion can con­tin­ue.

This is all a qual­i­ta­tive bal­ance. The judge needs to give full rea­sons for their eval­u­a­tions in this step and ap­peals courts must de­fer to those bal­anc­ing de­ci­sions.

Charter challenges

The Ontario Court of Appeal also dis­missed two Charter chal­lenges to the Ontario Act in Platnick v Bent.Platnick v Bent, 2018 ONCA 687.

Platnick ar­gued that the Act is an un­con­sti­tu­tion­al in­fringe­ment on one’s lib­er­ty be­cause it lim­its, in a man­ner in­con­sis­tent with prin­ci­ples of fun­da­men­tal jus­tice, one’s abil­i­ty to de­fend one’s rep­u­ta­tion. The Ontario Court of Appeal re­ject­ed that claim. Reputation is not en­com­passed in the right to “lib­er­ty” or “se­cu­ri­ty of the per­son”.

They also dis­missed a Section 15 (equal­i­ty rights) claim. Platnick ar­gued that he was part of a group that was analagous to the grounds list­ed ex­plic­it­ly in Section 15 (race, na­tion­al or eth­nic ori­gin, colour, re­li­gion, sex, age or men­tal or phys­i­cal dis­abil­i­ty). That analagous group: “those pro­tect­ing con­sti­tu­tion­al prin­ci­ples and val­ues of su­per­or­di­nate im­por­tance.” This claim was re­ject­ed be­cause to ac­cept such a broad de­scrip­tion of an analagous group would be pro­vide a path to chal­lenge al­most any leg­isla­tive dis­tinc­tion. Second, the claim ig­nores Supreme Court prece­dent that re­quires analagous grounds to ref­er­ence “im­mutable per­son­al char­ac­ter­is­tics or per­son­al char­ac­ter­is­tics which are change­able only at un­ac­cept­able cost to per­son­al iden­ti­ty.”

Back in BC

You can fol­low the progress of this and every oth­er bill here.

It’s hard to pre­dict whether BC courts will fol­low the same in­ter­pre­tive path as the Ontario courts. The Ontario Court of Appeal re­lied heav­i­ly on the state­ments of pur­pose in the Act it­self and on the leg­isla­tive his­to­ry in­clud­ing the pan­el re­port and leg­isla­tive de­bate.

The BC Act doesn’t have pur­pose state­ments and the leg­isla­tive his­to­ry is un­der­stand­ably less de­vel­oped be­cause BC had the benefit of Ontario’s Act and the Uniform Act as a start­ing point. I don’t know if BC courts will look to leg­isla­tive his­to­ry from an­oth­er province in or­der to in­ter­pret the words of a BC act. Given how iden­ti­cal the word­ing is and giv­en that BC ex­plic­it­ly said it re­lied on the Uniform Act, I would be sur­prised if BC’s courts give it a sub­stan­tial­ly different in­ter­pre­ta­tion, but it might be worth it for the gov­ern­ment to more ex­plic­it­ly state the mo­ti­va­tions and tradeoffs un­der­ly­ing this act as it moves through read­ings and com­mit­tees.