In a decision released November 10, 2014, the BC Court of Appeal rejected an attempt to create a novel common law defence in the law of defamation against so-called SLAPP suits. In Northwest Organics, Limited Partnership v. Maguire, 2014 BCCA 454, the court upheld the chambers judge’s decision and declined to radically change the law of defamation by introducing such a defence.
In the late 1980s, Professor George W. Pring and Penelope Canan, a sociologist, coined the term “Strategic Lawsuit Against Public Participation” (or “SLAPP suit”) in response to what they saw as an emerging trend in lawsuits where companies involved in land development or resource extraction would sue neighbourhood and environmental activists opposed to their projects. They defined a SLAPP suit as “a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance” (George W. Pring and Penelope Canan, SLAPPS: Getting Sued for Speaking Out (Philadelphia: Temple University Press, 1996), pp. 8-9).
Many American States have enacted anti-SLAPP legislation, with each statute setting different mechanisms and scopes to the protection provided. In Canada, British Columbia briefly had anti-SLAPP legislation in 2001, in the form of the Protection of Public Participation Act, SBC 2001, c. 19, which was enacted by the NDP government in April and repealed by the Liberal government in August. Under that legislation, if the defendant could show that their publication was an act of public participation, then they would be protected by qualified privilege unless the plaintiff could prove actual malice. Even if the defendant was unsuccessful in striking out the claim at first instance, if it could convince the court that the claim had a “reasonable possibility” of being a SLAPP suit, the onus would shift to the plaintiff to prove at trial the claim was not brought for improper purposes.
Following the repeal of the Protection of Public Participation Act, anti-SLAPP legislation went out of fashion in Canada for nearly a decade. In 2008, the Uniform Law Conference of Canada circulated a model statue, the Uniform Prevention of Abuse of Process Act. In 2009, anti-SLAPP measures were added to the Quebec Code of Civil Procedure. In Ontario, Bill 83, the Protection of Public Participation Act, 2013, had its second reading on April 16, 2014, and has been ordered referred to the Standing Committee on Social Policy.
In Northwest Organics, Limited Partnership v Maguire, 2013 BCSC 1328, the chambers judge rejected the defendant’s proposed test for determining whether or not a defamation claim was a SLAPP suit. The defendant had proposed a two part test. At the first stage, she argued the court should examine whether the expression at issue falls within the core areas of protected speech under section 2(b) of the Charter. If so, the plaintiff should then justify the claim as genuine by establishing that the claim: (a) is to compensate a significant injury to reputation; (b) has a significant likelihood of success; and (c) is the only practicable response to the alleged defamatory speech.
The chambers judge rejected this argument, stating that it would be a wholesale change to the law of defamation, and that if the test were to be adopted it would be more properly adopted by a higher level court or by legislative change. Furthermore, such a test should not be adopted at a preliminary stage without a full evidentiary record.
The Court of Appeal dismissed the appeal substantially for the reasons given by the chambers judge. Accordingly, absent legislative changes, an anti-SLAPP defence does not seem to be likely to emerge as part of the common law of defamation in Canada.
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