The report, released yesterday, identifies several principles that should underlie the proposed legislation. They include the notion that the method to stop such lawsuits should be cheap and fast; put the onus on plaintiffs to prove the litigation wasn’t improper; balance the financial inequality between plaintiffs and defendants; and deter people from launching them in the first place.
The government asked University of Toronto Faculty of Law dean Mayo Moran and lawyers Brian MacLeod Rogers and Peter Downard to prepare the report in response to concerns over the growing use of litigation to silence critics who speak out on matters of public concern, notably in environmental disputes. The recommendations include a test to quickly recognize a SLAPP to define a “sphere of activity to be protected by a special procedure. The protected activity should include all communications on matters of public interest and not be limited to communications directed to a public body.”
Under the test, the defendant would have to demonstrate that the case involves the protected activity of public participation. The burden would then shift to the plaintiff to prove the lawsuit has merit; that there are substantial grounds to believe that no valid defence exists; and that the harm suffered by the plaintiff outweighs that done to the public interest in allowing the matter to continue.
The proposals would see the courts hear a motion for a remedy for a SLAPP within 60 days. If the matter fails to meet the test, the court should dismiss it with full indemnity costs awarded to the defendant.
Other matters addressed in the report include how to treat applications for costs before administrative tribunals, a key issue that sparked concern over SLAPPs in Ontario in the first place. At the same time, it considered defamation actions by politicians. It referred to cases in which municipalities have paid for politicians’ libel suits against their citizens, a scenario raising the prospect that they’re simply getting around the general prohibition against municipal defamation actions. According to the report, the panel was “not prepared to recommend a blanket prohibition on such suits as part of the law of defamation, however. It is prepared to leave such suits to its general remedy for public participation.”
The Ministry of the Attorney General is now reviewing the recommendations.