Ontario law aims to shut down frivolous defamation suits

Amid concerns about legal expenses and liability insurance costs, an Ontario bill designed to identify defamation lawsuits that “unduly restrict free expression in the public interest” has been passed into law.

Bill 52, which changes the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act, received royal assent Nov. 3.

The bill contains a provision that “would allow the courts to quickly identify and deal with lawsuits that unduly restrict free expression in the public interest, minimizing costs and other hardships endured by the defendant,” said Yasir Naqvi, Ontario’s Liberal Community Safety and Correctional Services Minister, last March during a debate on the bill. “It will extend qualified privilege in defamation law under the Libel and Slander Act.”

The law is intended to deal with strategic lawsuit against public participation, or SLAPPs.

“Sometimes, these cases have little or no merit,” Attorney General Madeleine Meilleur said last March at Queen’s Park. “Most are dropped before the lawsuit goes to trial, sometimes just weeks later. Meanwhile, the damage is done. Financially and emotionally drained, the target of a strategic suit is effectively silenced.”

The push for the law came in part from associations who oppose certain developments in their area.

“On our shoestring budget, we’ve been forced to pay a huge sum for liability insurance, just in case a SLAPP suit should occur,” Sandy Buxton, president of the Midhurst Ratepayers’ Association, said Oct. 1 before the Standing Committee on Justice Policy. “Some of our most generous donors have requested anonymity, fearing an attack of some kind by the developers.”

The committee sent Bill 52 back to the legislature Oct. 8. It passed third reading Oct. 28.

The ruling Liberals introduced similar legislation – Bill 83 – in June, 2013, but Bill 83 died on the order paper with the June, 2014 election.

In opposing a development, the Midhurst Ratepayers’ Association has “endured a barrage of insults, insinuations and intimidation from the developers over a considerable period of time,” Buxton said Oct. 1.

Earlier that week, the committee also heard from Eileen Denny, president of the Teddington Park Residents Association.

“The Protection of Public Participation Act will put a stop to the growing use of lawsuits used to silence and dissuade individuals from freely expressing and broadly participating in matters of public interest,” she said. “It provides a defined purpose and a quick review process for identifying and dismissing lawsuits via motion. The act also proposes cost consequences that discourage strategic lawsuits from starting.”

During a debate in the legislature, Progressive Conservative MPP Sylvia Jones recounted a case in British Columbia where a person sought a permit to convert forested land into farmland. A neighbour objected over concerns “about a possible negative impact on the streams that flowed through his land,” she said.

The township decided “that it needed more time to measure the environmental impact of the application,” noted Jones, MPP for Dufferin-Caledon.

“The claimant sued the defendant, the organization which she was involved with and another individual, claiming $13 million in damages against all three,” she said. “The claim against the defendant herself was for $5.5 million.”

A judge determined “that the claimant had provided no evidence of his allegations against the defendant,” Jones noted, but the defendant’s legal costs were more than $20,000.

“Unfortunately, as a result of this litigation, the organization was forced to consider ceasing operations altogether once the SLAPP had been settled,” Jones said. “Ultimately, the directors of the organization did buy public liability insurance, mostly because they were concerned about future SLAPPs, or litigation chill.”

Bill 52 changes the Courts of Justice Act to “create a process for getting a proceeding against a person dismissed if it is shown that the proceeding arises from an expression made by the person that relates to a matter of public interest.”

A defendant “may bring a motion to get the proceeding dismissed on the basis that the proceeding arises from an expression made by the person that relates to a matter of public interest.”

In Canada, libel “is essentially a law against reporting things you can’t substantiate,” notes a document published by the Canadian Judicial Council. The classic definition of libel, CJC adds, is “any statement which tends to discredit or lower an individual ‘in the estimation of right-thinking members of society generally.'”

In the document, titled The Canadian Justice System and the Media, CJC notes that people sued for libel can defend themselves by proving, on a balance of probabilities, that the disputed statements are true.

In Ontario, the defence of qualified privilege applies to, among other things, fair and accurate reports on proceedings of legislative bodies, commissions of inquiry or public authorities. It also applies to court documents and proceedings.

Bill 52 changes Ontario’s Libel and Slander Act so that the defence of qualified privilege “applies 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.”

Before Bill 52 became law, Naqvi told the legislature that “statements made by a person with a direct interest in a public interest matter to another person who also has a direct interest are privileged, so they do not give rise to liability for defamation.” Bill 52, Naqvi added, the privilege is being extended “to cases where these communications were reported in the media or otherwise, for example, discussed in a blog.”