Ontario government bill aims to discourage lawsuits over public debates

Ontario politicians from all three parties spoke Wednesday in favour of a government bill, that if passed into law, would discourage the use of litigation as a means of limiting expression on matters of public interest. One opposition politician noted in the past, directors of an advocacy group had to buy liability insurance over fears they could be sued individually over public participation.

Bill 83, which was the subject of second reading debate in the legislature Wednesday, would make amendments to three laws and is intended to curb “strategic lawsuits” against public participation, or SLAPPs, Liberal Attorney General John Gerretsen suggested in the legislature.

“Strategic lawsuits …are lawsuits brought to the court by one party against another as a tactic for silencing or intimidating the other individual,” he said. “For example, in a defamation claim a suit would be considered strategic if the act of suing an individual to ensure his or her silence has the effect of shutting down public debate on a matter that could reasonably be expected to be of concern to an entire community. In this situation, the proposed legislation gives the defendant who believes that they are being targeted unfairly an opportunity to ask the court to dismiss the case before a long and expensive court battle ensues.”

Gerretsen sponsored the bill, which passed first reading in June. Debate on second reading was adjourned Wednesday, with several MPPs – including Cheri DiNovo of the New Democratic Party and Sylvia Jones of the Progressive Conservatives — speaking largely in its favour.

Jones, MPP for Dufferin-Caledon and the opposition’s Attorney General critic, recounted an incident in 2010 in British Columbia in which a landowner’s application to convert forested land into farmland was put on hold by the municipality. A local water conservation organization had published material opposing the application for a permit and produced a report alleging there could be potential damage to the local watershed.

The landowner sued two individuals and the watershed organization, plus the organization itself, claiming $13 million in damages, Jones said.

“As a result of this litigation, the organization was forced to consider ceasing operations altogether once the SLAPP had been settled,” Jones added. “Directors at the organization were forced to buy public liability insurance, at a significant cost, out of fear that they may again be the victim of lawsuits in response to their public participation in government decision-making processes. Eventually, on May 25, 2011, the claimant’s claim was dismissed, with costs awarded to the defendants.”

The full name of Bill 83 is An Act to amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest.

One of its stated goals is “to discourage the use of litigation as a means of unduly limiting expression on matters of public interest.”

If passed into law, it would amend the Courts of Justice Act to require a judge, subject to certain conditions, to dismiss a proceeding against a defendant if the defence “satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.”

In its current form, the bill stipulates that a judge shall not dismiss a lawsuit if the judge is satisfied that there “are grounds to believe” that “the proceeding has substantial merit,” that the defendant “has no valid defence in the proceeding” and that “the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

Bill 83 also provides that when a judge does dismiss a proceeding under the expression of public interest provision, the party moving for dismissal is entitled to costs on the motion and in the proceeding on a full indemnity basis, “unless the judge determines that such an award is not appropriate in the circumstances.”

Bill 83 also proposes to change Ontario’s Libel and Slander Act to change the definition of qualified privilege, which the Canadian Judicial Council describes as a defence in a defamation lawsuit.

In Ontario qualified privilege applies to “fair and accurate reports” on proceedings of legislative bodies, commissions of inquiry, public authorities, rulings of courts, tribunals and official inquiries, as well as documents produced or discussed in open court or before a tribunal or inquiry, according to the CJC document, titled The Canadian Justice System and the Media.

Bill 83 would, if passed into law, expand qualified privilege to apply “in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons.”

The classical definition of libel, CJC notes, is “any statement which tends to discredit or lower an individual in the estimation of right-thinking members of society generally.”

Gerretsen noted during Wednesday’s debate on Bill 83 that under current legislation, a group of citizens who meet to discuss a problem are protected from libel suits if they make statements without malice.

“If, however, a reporter from a local newspaper, radio station or television station shows up, that privilege is lost,” Gerretsen added. “It may come as a surprise to some that, under our current laws, that same group of citizens is no longer protected as soon as their conversations are reported by a third party, such as the press, or are circulated on social media, which of course is very common nowadays.”

Strategic lawsuits under current defamation laws, Gerretsen added, “can deter frank conversations about matters of public concern.”