On May 15, 2018, the Protection of Public Participation Act (Bill 32) was introduced in the British Columbia legislature. Bill 32 is what is often referred to as anti-strategic lawsuit against public participation (“anti-SLAPP”) legislation.
If enacted into law, Bill 32 would allow a person against whom a proceeding has been brought to apply to court for a dismissal order on the basis that: 1) the proceeding arises from an expression made by the applicant; and 2) the expression relates to a matter of public interest.
“Strategic Lawsuits Against Public Participation” or “SLAPPs” are lawsuits started by a plaintiff designed to silence public participation, burdening a defendant with the cost and distress of a legal defense until they abandon their criticism or opposition.
Bill 32 represents the resurrection of anti-SLAPP legislation in British Columbia. Anti-SLAPP legislation was previously enacted in British Columbia by the last New Democratic Party government in 2001. However, that legislation was repealed a few months later following a change in government.
Under the proposed legislation, the defendant is not required to show the plaintiff had an improper purpose in commencing the proceeding, which was a requirement in the former legislation.
Proposed Protection of Public Participation Act
The legislation proposed under Bill 32 is modelled after similar legislation in Ontario. The proposed legislation would give the defendant in a lawsuit the right to bring a special application seeking that the claim against them be dismissed on the basis that:
- the proceeding arises from an expression made by the applicant; and
- the expression relates to a matter of public interest.
“Expression” is defined broadly in the proposed legislation to mean any communication, whether it is made verbally or non-verbally, publicly or privately, and whether it is directed or not directed at a person or entity.
The provisions of the proposed legislation do not define what is a matter of public interest; however, case law indicates that it is a broad concept and that a matter of public interest involves matters in which the public has some substantial concern beyond curiosity or prurient interest, and a matter of public interest affects the welfare of citizens or concerns an issue of public controversy or concerns an issue about which citizens have a right to make fair comment.
If the applicant satisfies the court that the proceeding arises from an expression as described above, the court must make a dismissal order unless the respondent satisfies the court that:
- there are grounds to believe that
- the applicant has no valid defence in the proceeding; and
- the proceeding has substantial merit; and
the harm likely to have been or to be suffered by the respondent as a result of the applicant's expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.
If the proceeding is dismissed on the basis set out above, the defendant will generally be entitled to its costs of the application and the proceeding on a full indemnity basis. In addition, the court may award damages if it finds that the plaintiff brought the proceeding in bad faith or for an improper purpose.
The proposed legislation also includes a provision dealing with the stay of related administrative proceedings if the applicant believes that the proceedings are related to the same matter of public interest pending the resolution of the anti-SLAPP application.
The proposed Protection of Public Participation Act sets a lower threshold for an anti-SLAPP application than existed under previous legislation that was repealed in 2001.
If enacted, the proposed Protection of Public Participation Act may provide a remedy for defendants who believe that a lawsuit has been brought against them for the purpose of limiting their expression on a matter of public interest.
The potential consequences of an anti-SLAPP application may also cause a plaintiff with a virtuous claim related to a matter of public interest to think twice before commencing a claim if an anti-SLAPP application from the defendant is a real possibility and responding to such an application could outweigh the advantages of bringing the lawsuit.