On December 1, 2014, Minister Madeleine Meilleur reintroduced legislation to protect public participation and freedom of expression from SLAPP lawsuits, Strategic Litigation Against Public Participation. Bill 52, the Protection of Public Participation Act, is an important bill designed to prevent SLAPP suits, where deep-pocketed corporations and developers bring frivolous lawsuits against grassroots critics (often citizen’s groups and environmental groups) in order to intimidate and silence them. Ontario’s previous Attorney General, the Honourable John Gerretsen, introduced a nearly identical bill in June 2013. On introducing Bill 52 to the Legislative Assembly, Minister Meilleur stated “As members will recall, the proposed Protection of Public Participation Act seeks to balance the protection of public participation and freedom of expression and the protection of reputation and economic interests.”
Bill 52 is designed to stop potential SLAPP suits dead in their tracks. The key section is the “freeze” provision in section 137.4, which gives the target of a potential SLAPP suit the power to automatically stop related proceedings e.g. a development application before the Ontario Municipal Board:
"If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal." [Emphasis added]
This means the alleged SLAPP suit must be resolved before the administrative tribunal proceeding is resumed, thereby delaying the issuance of approvals to a developer using SLAPPs to prevent people from speaking out. This section of the Bill should discourage potential SLAPP suits. While the party that filed the potential SLAPP suit can ask the Court by way of motion to lift the freeze on the administrative tribunal proceeding so it can proceed, this motion requires extra time and money, and removing the freeze is not guaranteed (subsection 137.4(4)).
If the Court finds a law suit is indeed a SLAPP suit, the court can order the costs of the SLAPP suit victim e.g. lawyer’s fees be covered by the other party under section 137.1 of the bill, as follows:
Costs on dismissal
(7) If a judge dismisses a proceeding under this section, the moving party 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.
Costs if motion to dismiss denied
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.
(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.
If passed as currently drafted, Bill 52 will apply to potential SLAPP suits started on or after December 1, 2014.
Four years ago, the Ontario government empanelled the anti-SLAPP Advisory Committee to advise it on how to address SLAPP suits. The Advisory Committee produced a report to the Attorney General that is reflected in Bill 52. If Bill 52 is enacted, Ontario will join Quebec, the only other province with anti-SLAPP legislation.
Since then, over 60 municipalities, academics, the Ontario Bar Association, Environmental Defence and over 150 other environmental organizations have expressed support for anti-SLAPP legislation.
Read the Environmental Defence Blog here.
View the Attorney General's Press Release here.