It took a long time, but the Ontario government has finally come forward with legislation to deal with strategic litigation against public participation.
Last week, Attorney General John Gerretsen announced he was introducing the protection of public participation act to deal with SLAPPs. Central to the proposal is a plan to have courts quickly convene hearings to determine whether a lawsuit is a SLAPP within 60 days and therefore decide whether it can proceed.
The bill largely targets frivolous defamation lawsuits aimed at silencing legitimate comment on a matter of public interest. Given the risks and financial burden suffered by those targeted with a SLAPP, it’s important to provide a mechanism to protect them.
Lawsuits are expensive and can take a long time, so it’s easy to see how a statement of claim can intimidate those who might, for example, have cause to publicly criticize a development project or raise environmental concerns.
The government is basing its legislation on the recommendations of a panel appointed in 2010 and headed up by University of Toronto Faculty of Law dean Mayo Moran to look into the issue.
Among other things, the panel called for a test for judges to quickly recognize SLAPPs. Defendants, for example, would have to show the case involves the protected activity of public participation.
Once they establish that, the burden then shifts to plaintiffs to show the case has substantial merit; there are significant grounds to believe no valid defence exists; and the harm they’ve suffered outweighs that done to the public interest by allowing the action to continue.
The government, of course, took a while to move on the recommendations that date back to 2010. But it no doubt considered the issue carefully given the potential legal pitfalls, such as constitutional and other challenges likely to emerge from those unhappy with the consequences of a SLAPP ruling, at stake.
The recommendations are, however, reasonable, and the fact that the issue has raised little opposition so far is a good sign. In addition, the legislation has the side benefit of speeding up the legal process. That’s certainly good for defendants as well as for the public and the justice system in general.
A key challenge is the fact Ontario’s legislature hasn’t been particularly productive in getting bills passed during the current minority tenure. But with the Liberals and the NDP supporting the anti-SLAPP bill, this is one piece of legislation the legislature should be able to pass fairly quickly.
— Glenn Kauth
