There is an ever-present tension between the right to freedom of speech and the need to protect individuals and corporations from defamation. In Ontario, Canada, the Protection of Public Participation Act 2015 (Ontario PPPA) aims to tip the balance towards the former, providing a robust defence for those who choose to express their views on matters of public interest. This post will delve into the intricacies of this law and how it protects public expression while curtailing Strategic Lawsuits Against Public Participation (SLAPPs).
The Essence of the Ontario PPPA
Ontario’s PPPA was enacted to help foster a more balanced legal landscape where public participation in debates on matters of interest is encouraged rather than stifled. This law primarily targets SLAPPs, often filed by corporations or wealthy individuals, with the intent of silencing critics by burdening them with the cost of a legal defence.
The objectives of Ontario PPPA are expressed succinctly under Section 137.1 of the Courts of Justice Act. It aims to:
- Foster free expression on public interest matters.
- Broaden participation in public debates.
- Limit the use of litigation as a tool for curtailing public expression.
- Lower the risk that public participation in debates will be hindered by fear of legal retribution.
These objectives carry significant weight in the interpretation of the Act, as affirmed by the Supreme Court of Canada.
The Legal Mechanics: Screening and Threshold Test for the Defendant
To further its goals, the Ontario PPPA introduces a two-stage process: a threshold test for the defendant, which, if met, places the onus on the plaintiff to meet a two-pronged test.
First, during the threshold test, the defendant must demonstrate that the lawsuit against them stems from an expression of public interest. “Expression” covers any form of communication, whether public or private, although it may exclude conducts unprotected by the Canadian Charter of Rights and Freedoms, such as hate speech or threats of violence.
The concept of “public interest” is broad and includes topics such as politics, science, arts, environment, religion, and morality. The key is whether the expression genuinely pertains to a matter of public interest and isn’t merely for entertainment or arousing curiosity.
The Onus on the Plaintiff: A Two-Pronged Test
Once the defendant clears the threshold, the burden shifts to the plaintiff to demonstrate that their case has substantial merit and that the defendant has no valid defence. This is not a simple task as it necessitates a strong foundation in fact and law that their lawsuit holds substantial merit and that the potential defences by the defendant are not strongly in their favour.
The second prong of this test, often considered the linchpin of the procedure, assesses whether the harm inflicted by the expression outweighs the public interest in preserving it. Here, the court conducts a delicate balancing act between two fundamental societal values: freedom of expression and the protection of reputation.
The plaintiff must show that the damage caused by the expression is so serious that it justifies limiting the freedom of expression. Evidence of harm doesn’t have to be strictly monetary, and it may include reputational damage, emotional distress, or invasion of privacy.
The Sting of Bad Faith Damages
A unique aspect of the Ontario PPPA is the provision for bad faith damages. If the court concludes that the plaintiff has brought the lawsuit with an intention to intimidate, the defendant may be awarded damages, which could compensate for the stress and personal anguish caused by the proceedings.
However, punitive damages are not allowed under the Ontario PPPA, considering that a successful defendant is already entitled to full indemnity costs.
Procedural Matters and Costs: The Nuts and Bolts of the PPPA
The PPPA also addresses procedural matters, providing an expedited mechanism to review and dismiss lawsuits that are seemingly SLAPPs. This efficient procedure ensures that the defendants don’t have to undergo lengthy litigation processes, which could be financially and emotionally draining.
When a motion is filed under the PPPA, all other proceedings, including discovery, are put on hold until the motion is resolved, thus preventing further costs and delays. This makes the PPPA a powerful tool against SLAPPs, ensuring that the court’s resources are not wasted on meritless claims.
Another critical feature of the PPPA is the “loser pays” costs regime. If a defendant successfully demonstrates that a claim is a SLAPP, they are entitled to full recovery of their legal costs. This cost award aims to deter potential SLAPP plaintiffs and ensure that victims of SLAPPs are made whole.
The Protection of Public Participation Act represents a significant step towards protecting freedom of speech in Ontario. It provides a robust shield against strategic lawsuits intended to silence or intimidate those speaking on matters of public interest. While the balance between protecting reputation and upholding freedom of speech is a delicate one, the PPPA has established a robust system to strike that balance, fostering a healthier environment for public participation and dialogue.
However, as with any piece of legislation, the effectiveness of the PPPA would be judged by how well it is implemented and interpreted by the courts in the years to come. For now, the Act offers a glimmer of hope to individuals and organizations wishing to participate freely in discussions of public interest, without fear of legal retribution.
Example: Volpe v. Wong-Tam
This case involves Wong-Tam, Ainslie, Li Preti, Di Pasquale, de Domenico, and Yahoo Canada (referred to as the Yahoo Defendants), and their motion to dismiss a defamation lawsuit filed by Volpe and M.T.E.C. Consultants Ltd (Plaintiffs). The Plaintiffs run Corriere Canadese, an Italian-Canadian newspaper. The Defendants argued that the lawsuit was a strategic lawsuit against public participation (SLAPP) and used section 137.1 of the Courts of Justice Act, known as an “anti-SLAPP” motion, to seek dismissal.
The defendants included elected councillors and trustees of the Toronto Catholic District School Board (TCDSB), as well as Yahoo Canada, which operates a news website. Over a period of 12 weeks, Volpe, who is affiliated with the plaintiffs, wrote 28 articles opposing the trustees’ views on LGBTQ2S+ matters in the TCDSB. Volpe used strong language against these trustees in his articles.
The Court agreed with the defendants, ruling that their statements, contained in a Tweet, a Motion, a Joint Letter, and Press Conference Statements, were matters of public interest. These statements concerned the use of public funds for city advertising and protection of the constituents’ interests, including LGBTQ2S+ students, parents, and teachers. The Court found that the defendants successfully demonstrated that the lawsuit against them stemmed from expressions related to public interest matters.
The Court also found that the Plaintiffs could not demonstrate a real prospect of success in their claim, even if a separate claim were possible. In relation to Yahoo, the Plaintiffs failed to meet their burden of proof under section 137.1(4)(b). As a result, the lawsuit against the Yahoo Defendants was dismissed.