More on “Tilting at Windmills”: Ontario Tables Anti-SLAPP Legislation – & How It Could Cover Existing Cases

At just about the same time that news was breaking of NextEra’s controversial lawsuit against Esther Wrightman, the Ontario Government AG, the Hon. J. Gerrertsen, tabled Bill 83 – which would, if passed, introduce some remarkably positive changes to Ontario law regarding #SLAPP lawsuits. The bill, if passed, would provide much needed encouragement of public interest expression, commentary and participation. It would, indeed, serve as a serous chill against litigation of little or no merit that is intended to stifle or prevent public expressions of comment on matters of public interest. @EzraLevant, a well-known Sun News commentator, had some written and spoken comments on June 9, 2013 on the Sun website about NextEra’s lawsuit against Esther Wrightman and whether he sees it as a “SLAPP” suit.   

Bill 83 would provide that if a party is sued as the result of “expression” made by a person concerning a matter of public interest, the defendant can move to have the proceedings thrown out unless the plaintiff can show that:

·       The proceeding has “substantial merit”;

·       The moving party has no valid defence; and

·       The harm resulting from the defendant’s expression is sufficiently serious that that public interest in allowing the proceeding to continue would outweigh the public interest in protecting that expression.

Motions brought under the legislation must be heard within 60 days and, once the motion is made, no further steps can be taken by either party until the motion is finally disposed of. Indeed, the bill creates a process by which a person who brings a motion for dismissal can have an administrative tribunal proceeding automatically stayed if he or she believes that the tribunal proceeding is related to the same matter of public interest that he or she alleges is the basis of the proceeding that is the subject of his or her dismissal motion. The stay remains in effect until the motion is finally disposed of; however, a judge may, on motion, order that it be lifted earlier under certain circumstances.

And the moving party, if successful, can recover full costs if the proceeding is dismissed. If the proceeding is not dismissed, the responding party will not be awarded costs unless the judge determines that such an award is “appropriate” in the circumstances.  The moving party may be awarded “appropriate” damages if the judge finds that the proceeding was brought in bad faith or for an improper purpose.

This is really important – and would dramatically change the legal landscape in Ontario, as any litigation lawyer will know.

At the present time, it’s very difficult to get any lawsuit – even a SLAPP lawsuit –dismissed at an early stage unless a defendant can show that there "no genuine issue requiring a trial" – a burden that a defendant is rarely able to meet, based upon many years of judicial precedent. A more recent formulation of the threshold test for summary judgment is known as the “full appreciation” test:

“Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”

See also here, on the “full appreciation” test.  The Supreme Court of Canada has recently heard arguments and reserved judgment on its consideration of these issues, which arose in the closely watched cases of Bruno Appliance and Furniture Inc. v. Hryniak and Hryniak v. Mauldin, which were argued on March 26, 2013. We can presumably expect to hear from the Court in the next several months. These are very complicated commercial law cases involving a lot of money and allegations of fraud, but none of the elements of a SLAPP case. Thus, whatever the Supreme Court has to say about summary judgments, the resulting and much hoped for clarity about summary judgments cannot and likely will not address the particular types of issues that can arise in a classic SLAPP law suit.

According to Bill 83, dismissal of a SLAPP case at an early stage because the plaintiff cannot show that its case has “substantial merit” should be much easier than getting summary judgment under present rules and jurisprudence – and so it should be in a SLAPP situation. Recall that The Ontario Government defines SLAPP litigation as:

Strategic litigation against public participation (SLAPP) has been defined as a lawsuit started against one or more people or groups who speak out or take a position on an issue of public interest. The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism. Concerns have been raised that SLAPPs also act as a warning to other potential critics. The effect of SLAPP suits is to discourage public debate.

Those affected by existing litigation that would qualify for dismissal under Bill 83, if enacted, will no doubt be delighted to know that this legislation would explicitly apply to lawsuits commenced even before it comes into force, which could be in the fall session later this year.  Although there is a minority government in Ontario, this seems to be an issue that apparently attracts the support of at least one of the opposition parties.

It will be interesting to see what may transpire if NextEra pursues its current litigation against Ms. Wrightman and if this legislation is passed soon in its present form.

Ms. Wrightman’s courageous quest may shed some light not only on windmills but the justice system itself in Canada. This is why she is tilting at windmills in more ways than one.

For those looking for more background, The Ministry’s resource material on anti-SLAPP legislation, including the advisory panel’s report that led up to this bill, is here.And some media material about the new bill can be found here – first four items. 

It should be noted that Ontario is usually a trend-setter for the common law provinces in procedural matters, especially ones that have substantive and “access to justice” significance – and sometimes even for the Federal Government in such matters. This is definitely something to think about in terms of possible amendments to the Federal Courts Act.

HPK