Public Participation: Anti-SLAPP The Public Participation Project is a joint project of the Canadian Civil Liberties Association (CCLA) and Pro Bono Law Ontario (PBLO). It combines CCLA’s mandate to promote fundamental freedoms and PBLO’s mandate to enhance access to justice. The Project provides general resources to assist defendants in SLAPP suits and, in appropriate cases, link defendants with pro bono lawyers for case-specific assistance. To apply to be matched with a lawyer who may be able to offer pro bono assistance, complete an online application through PBLO’s Law Help Ontario program, and choose Legal Assistance as a result of public participation (e.g. speaking out or publishing) on a matter of public interest (SLAPP suits). Follow these links to access our self-help resources: FAQs Helpful Resources/Materials Steps of a Civil Suit Example Case Summaries More About the Project faqs What is a SLAPP suit? SLAPP stands for “Strategic Lawsuit Against Public Participation” or “Strategic Litigation Against Public Participation”. In essence, SLAPPs are lawsuits, or the threat of a lawsuit, directed against individuals or organizations, in order to silence and deter their public criticisms and advocacy for change. Although SLAPPs can take a variety of forms, many come in the form of a legal action for defamation or libel or for other civil claims including interference with contractual relations. SLAPPs generally lack merit and are not likely to succeed in court. The goal of the party bringing the lawsuit is generally not to win a case, but to silence their critics. The lawsuit is started by a plaintiff which may be an individual or group (including a corporation) in order to intimidate those who criticize or question the plaintiff’s behavior or stance with respect to certain public interest issues. The critics (defendants in the lawsuit) have to redirect their energies to defending the lawsuit. In light of the time, resources and stress that can accompany being sued, the defendants may be encouraged to simply stop expressing their views and critical assessments of the plaintiff(s). The lawsuit may also have the effect of dissuading others from speaking out and exercising their own rights to express themselves and participate in the democratic process. This is sometimes referred to as the “chilling effect”. Why do SLAPPs matter? CCLA has been a staunch defender of freedom of expression throughout its history. We also believe that the powers of the state should not be used to silence expression or advocacy on matters of public interest, even where the position being advocated for is unpopular or outside of the mainstream. Although SLAPPs generally take the form of civil lawsuits between private parties, they often involve a powerful or wealthy party taking advantage of, and in some cases abusing, the judicial system in order to silence less powerful critics. Why did CCLA advocate for anti-SLAPP legislation? CCLA believes that public participation is important and should not be discouraged by those with greater means and resources. Targets of SLAPPs (i.e. defendants) should have a quick and inexpensive way of having a Court assess whether the lawsuit in which they have been named is abusive or aimed at silencing legitimate and legal expression. That’s why CCLA supported efforts to introduce and pass the Protection of Public Participation Act, 2015 in Ontario, and would support similar efforts across Canada. The Ontario legislation enacts new procedural rules so that defendants can have an early determination of the validity of the lawsuit against them. In some cases, where a lawsuit is found to impact public participation, the plaintiff may be penalized with a costs award. These kinds of measures aim to guard against abuse. How does anti-SLAPP legislation in Ontario change the civil litigation process? In theory, the Protection of Public Participation Act, 2015 could eliminate the need for parties to go through many of the steps typically involved in civil litigation (see steps in a civil suit below) if a court determines the case to be a SLAPP. The legislation creates a new type of motion where the person being sued (the defendant) can have the claim against them dismissed, as long as the lawsuit arose from “an expression made by the person that relates to a matter of public interest.” The motion may be brought at any time after the claim has started. In practice, a defendant would probably bring this motion soon after being served with a statement of claim, or shortly after filing a statement of defence. The motion should be heard within 60 days and the parties have limited time to cross-examine on documentary evidence (i.e. one day each). If the judge hearing the motion is satisfied that the claim arose from an expression made by the defendant relating to a matter of public interest, s/he must dismiss the proceeding, unless the person who brought the lawsuit (the plaintiff) can convince the judge: that the proceeding has substantial merit, AND that the defendant has no valid defence, AND that the harm the plaintiff has suffered outweighs the harm done to the public interest (especially in freedom of expression) by allowing the action to continue. Once this kind of motion is made, no further steps can be taken in the proceeding until the motion (and any appeal) is dealt with. In addition, there are cost consequences designed to discourage abusive lawsuits from being started and to encourage the targets of such lawsuits to have them disposed of promptly: If the defendant succeeds in having the proceeding dismissed, there is a presumption that they can recover costs (i.e. the person who brought the lawsuit will have to pay all the legal costs). If the defendant is unsuccessful in having the claim dismissed, and the claim goes ahead to the other steps of the civil litigation process, there is no presumption they would be liable for costs. Damages could also be awarded in cases where a judge determines that a proceeding was started in bad faith or for an improper purpose. What does the Protection of Public Participation Act NOT do, and why? The legislation does not use the acronym “SLAPP” Why? Because its harsh tone may seem to prejudge the merits of cases subject to review under it It does not create a new legal right (like several American anti-SLAPP laws that expressly protect the right of citizens to petition government). Why? Canadians’ freedom of expression is already protected by our Constitution. The Act creates a new procedure for enforcing an existing body of rights. It does not limit protection to communication that targets governments. Why? It is not wise to distinguish between “public” and “private” forums of discussion. Both private and public communication can involve expression on matters of public interest. Protection should be based on whether the expression is on a matter of public interest. It does not focus on the purpose of the lawsuit. Why? Judging the motive of a plaintiff is difficult, and often impossible, especially in an accelerated proceeding. The focus is on the effect the lawsuit may have on expression on matters of public interest, not why the plaintiff sued. It does not entitle defendants to an advance order for costs (i.e. having plaintiffs fund all or part of the defendants’ legal costs while the action is proceeding) Why? The policy choice made by the government with this legislation is to deal with the imbalance of resources between parties by allowing for an early dismissal motion combined with the full coverage of legal costs if the defendant succeeds. It does not limit who can bring an anti-SLAPP motion Why? The proposed scheme applies to anyone in any civil litigation. The value of public participation is not restricted to specific individuals. Helpful Resources/Materials Anti-SLAPP Advisory Panel Report to the Attorney General Ecojustice and CELA Report: “Breaking the Silence: The urgent need for anti-SLAPP legislation in Ontario“ Public Interest Advocacy Centre (PIAC) Report: “Corporate Retaliation Against Consumers: The Status of Strategic Lawsuits Against Public Participation (SLAPPs) in Canada” CELA, Ecojustice, Environmental Defence Brief: “Strategic Lawsuits Against Public Participation (SLAPP): Legislation Urgently Needed in Ontario” Public Participation Project: Fighting for Free Speech (US) First Amendment Project (US) Steps in a Civil Suit This list covers the basic steps in a civil claim in Ontario. It is not intended to provide legal advice. For specific information about the rules applicable to civil litigation in Ontario you should consult the Rules of Civil Procedure and/or speak to a lawyer. If you wish to learn more about various aspects of civil litigation, a number of guides are available on the Law Help Ontario website. 1. Bringing a claim* The plaintiff (person starting the action) prepares what’s called a statement of claim. A statement of claim has all of the facts the plaintiff will rely on to make their case. The statement of claim must be issued by the court, meaning the plaintiff needs to bring their statement of claim and the filing fee to the court in person in order to file it. Once the statement of claim has been issued by the court, the plaintiff needs to serve (deliver) it to all the defendants (persons who the plaintiff are launching an action against) and files what’s called an affidavit of service (proof they’ve delivered the statement of claim to the defendants and that the defendants have received it). 2. Defending a claim* There are different ways for a defendant to respond to a plaintiff’s statement of claim, depending on how they feel about the claim. If they agree with the claim, they may try to settle all or part of it with the plaintiff; If they feel it is the plaintiff who is at fault, they may file a counterclaim (their own version of a statement of claim); If they feel it is one of the other defendants served who is at fault, they may file a cross claim against the other defendant; If they feel it is a separate party’s fault altogether, they may start a third party claim against someone who is not a party to the lawsuit. Most often, the defendant will write and file a statement of defence (cross-claims and counterclaims can be included in a statement of defence). A statement of defence has all of the facts the defendant will rely on to make their case against the claim. The defendant must serve their statement of defence on the plaintiff, any other defendants, and file a copy with the court together with proof of service (proof that all the other parties have received it). Defendants should not ignore a claim because if they fail to deliver a statement of defence within the prescribed time, the defendant may be noted in default (meaning they are treated as if they have admitted everything alleged in the plaintiff`s statement of claim) and then the plaintiff may obtain what is called a default judgment, (i.e. a ruling in favour of the plaintiff). Time limits on filing a statement of defence: If the defendant is served the statement of claim in Ontario, they must deliver a statement of defence within 20 days of being served. If the defendant has been served outside Ontario, they have an additional 20 to 40 days. A defendant can file a notice of intent to defend (a form telling the court they plan to submit a statement of defence) which will extend the deadline for serving a statement of defence by 10 days (i.e. they will have 30 days instead of 20) 3. Discovery The purpose of discovery is to get information about the opposing party’s evidence before you go to trial. There are two main types of discovery: discovery of documents and examinations for discovery (where you can ask the other party questions). To get evidence through the discovery process, the parties must agree on a discovery plan. A discovery plan has to include specific information, like the scope of the documents, the dates documents will be available to the parties and how they will be made available. The plan must be agreed to within 60 days after the parties file their claims. Each party must deliver to all other parties an affidavit (sworn document) that lists all the relevant documents they have. Copies of the documents must be made available to any party that wants it. Documents are defined broadly and can include videotapes and information in electronic form, such as e-mails. 4. Setting an action for trial Either party may set the action down for trial (i.e. notify the court that the case is ready to be tried) by serving and filing the trial record to all other parties involved, and filing it with the court with proof of service and the court fee. In order to do this, the party must prepare and file what is called a trial record. A trial record includes all of the pleadings in the case. Sixty (60) days after you set the case down for trial, the registrar will place the action on the trial list. 5. Pre-trial conference A pre-trial must be held before a trial. A pre-trial is an opportunity for the parties to discuss the possibility of settlement, whether the issues can be simplified, and how long the hearing is expected to last. A judge who conducts a pre-trial conference will not preside at the trial unless all parties consent in writing. 6. Trial The plaintiff and defendant make opening statements. The plaintiff’s witnesses are examined (asked questions by their own lawyer) and then cross-examined (asked questions by the defendant’s lawyer). The defendant’s witnesses are examined and cross-examined. The plaintiff and defendant make closing arguments. A judge may give judgment in court right after both sides have finished presenting their cases or will reserve judgement and give the decision later *Motion Under Protection of Public Participation Act, 2015 Under Ontario’s Protection of Public Participation Act, 2015, the defendant may bring a motion to dismiss a proceeding at any time after the proceeding is commenced. This could be done after receiving the Statement of Claim (and before filing a Statement of Defence) or after filing a Statement of Defence. The motion can be brought later in the litigation process as well, although the purpose of the motion is to avoid incurring significant expenses in a case that should be dismissed. The party bringing the motion should obtain a hearing date from the court before notice of the motion is served. Moving parties may wish to consult with other parties about availability to ensure that the date booked can be held by all those involved. The motion should be heard no later than 60 days after the notice of motion is filed with the court. Example Case Summaries Example where the Ontario courts recognized a lawsuit as a SLAPP suit In Morris v. Johnson, 2012 ONSC 5824, the former mayor of Aurora, Ontario, Phyllis Morris, sued three local bloggers and several unknown individuals for defamation. The lawsuit alleged that the former mayor was defamed in anonymous comments posted on the Aurora Citizen blog during her re-election campaign. Morris eventually dropped the lawsuit, but two of the bloggers she had attempted to sue wanted her to pay their court costs because they thought the litigation had been commenced to silence them before the election (i.e. that it was a SLAPP suit). The Court decided that the litigation started by Morris was indeed a SLAPP, noting it was commenced to “stifle debate about Mayor Morris’ fitness for office”, and awarded the defendants “special enhanced costs” of just over $21,000. This is the first time in Ontario that a Court has found that a party engaged in SLAPP litigation and, similarly, the first time that a Court in Ontario has awarded costs on a heightened scale because the litigation was SLAPP. Examples from Quebec where the Courts have recognized lawsuits as SLAPPs under s. 54.1 of Quebec’s Code of Civil Procedure In June 2009, in response to calls for measures to limit the use of SLAPPs, the Quebec legislature added a new section to Quebec’s Code of Civil Procedure. Section 54.1 allows courts to impose sanctions against plaintiffs who have launched unfounded or abusive lawsuits at any stage of the litigation. The anti-SLAPP provisions entered into force on 4 June 2009, but they apply retroactively to actions launched before that date. Although Quebec courts have been somewhat hesitant in interpreting and applying the new anti-SLAPP provisions, in at least four cases, the courts have exercised their discretion to dismiss an action. In Constructions Infrabec c Drapeau (2010 QCCS 1734), a construction company launched a defamation action for $150 000 against a resident who had attended a municipal council meeting and asked questions about the granting of an important construction contract, and whether an independent auditor could be hired to review the decision (This is one of the events that created the Charbonneau Commission into corruption in the construction industry.) The Superior Court dismissed the action, concluding that the citizen’s words were not defamatory and therefore the lawsuit was clearly unfounded. In 2332-4197 Quebec Inc. c Galipeau (2010 QCCS 3427), after two citizens publicly criticized the environmental impact of a local landfill, the private company that managed the landfill launched a $1.25 million defamation action. It turns out that the citizens’ concerns were well-founded, as the landfill site was eventually shut down by government authorities. The Superior Court dismissed the action, determining that the lawsuit bore all the hallmarks of a SLAPP. 3834310 Canada Inc. c Pétrolia (2011 QCCS 4014) involved the spokesperson for a coalition focused on mining issues. He was quoted in the newspaper Le Soleil, criticizing an aspect of Quebec’s mining policy that allowed oil companies to avoid paying royalties at the exploration stage. The Quebec oil company Pétrolia brought a defamation action for $350 000 against the newspaper and the spokesperson. Ultimately, the Superior Court concluded that Pétrolia was not truly seeking financial compensation for damage to reputation, but rather attempting to silence critics – exactly the kind of tactic the legislature hoped to prevent in enacting sections 54.1 and following. The Court dismissed the defamation claim. In Savoie c Thériault-Martel (2013 QCCS 4280, affirmed 2013 QCCA 1856), a 67-year-old woman was sued in defamation after she participated in a demonstration against public-private partnerships (PPPs). At the protest, she made negative comments about the management of a local long-term care centre for the elderly, which was constructed as a PPP. The owner of the old-age home sought $400 000 in compensatory and punitive damages. The Superior Court characterized the action as a SLAPP suit, and dismissed the action under sections 54.1 and following. Examples from Ontario where the Courts have been reluctant to dismiss a lawsuit as a SLAPP suit Marineland v. Dylan Powell: In this action, Marineland sought an injunction and damages against Dylan Powell, the head of an animal protection group called Marineland Animal Defence (MAD). Marineland alleged that MAD’s actions (picketing and other protest activities) were part of a conspiracy to injure them, and amounted to tortious conduct against them. Although Powell argued that this lawsuit was part of a continuing SLAPP suit strategy of Marineland to shift the media focus away from the allegations of ongoing animal abuse, the Court did grant a temporary injunction against Powell, and eventually awarded costs to Marineland. Resolute Forest Products Inc. v. 2471256 Canada Inc: Logging giant, Resolute Forest Products, brought a $7 million claim against Greenpeace for defamation and intentional interference with economic relations. Resolute claims Greenpeace defamed it by falsely accusing Resolute of violating a landmark forest protection agreement. Greenpeace brought a motion to strike Resolute’s claims, arguing that Resolute’s legal actions “have been brought to silence criticism of the Company’s conduct concerning matters of high public interest,” but the Court dismissed this motion. Greenpeace appealed, but lost, and now the issue is going to trial. Examples from Quebec where the Courts have been reluctant to dismiss a lawsuit as a SLAPP suit Barrick Gold Corporation c Éditions Écosociété, 2011 QCCS 4232: Barrick Gold brought a $6 million defamation suit against the authors and the publisher of a book, Noir Canada – Pillage, corruption et criminalité en Afrique, that exposed atrocities allegedly committed in Africa by Canadian corporations. Barrick Gold stated the book was libelous and that the defendants had orchestrated an international campaign to harm their reputations. Politicians, academics and civil society groups have labeled this suit as a SLAPP, but the Superior Court concluded that Barrick’s action was not manifestly unfounded, since there were legitimate issues for trial. Though, because Barrick claimed an unreasonable amount of damages, knowing the defendants had no resources to pay such a judgment, and put the defendants through 20 days of discovery, the Court concluded that Barrick’s action was intended to intimidate the authors, not to repair the company’s reputation. However, given the seriousness of the allegations in Noir Canada and the weakness of the defence mounted, the Court decided against dismissing the action. Rather, Barrick was ordered to pay costs of $143 190. Acadia Subaru c Michaud, 2011 QCCA 1037: Michaud, a journalist for a Quebec City radio station delivered an on-air (and rather vulgar) critique of Quebec car dealers, arguing that consumers were being ripped off and that Quebec car dealers lacked professionalism. He later apologized on-air for his crass language, but reiterated his view that dealers were charging unreasonably high prices. 93 car dealers in the Quebec City region brought a defamation action against him, each claiming $10000 in damages. Michaud argued this was a SLAPP suit, but the Court determined that the car dealers’ action was not obviously unfounded in law. The Court did however acknowledge there was an appearance of impropriety in the car dealers’ action. Given the imbalance of resources between the parties, the Court concluded that the suit likely would inhibit Michaud from speaking critically again. Still, the Court concluded that the litigation should be allowed to proceed. More about the Project The project is being piloted in Ontario for a two-year period. Ontario lawyers interested in joining the roster may contact Cara Zwibel at CCLA (czwibel [at] ccla [dot] org). Lawyers or legal services organizations in other Canadian jurisdictions that may be interested in offering pro bono services to SLAPP defendants should contact the CCLA directly to discuss opportunities for expanding the project.