Ashley Prommer – Articled Student
Freedom of expression encourages equal and open discussions on matters of interest and importance to the Canadian public. However, like all constitutional rights, free expression can be reasonably limited in an effort to protect other fundamental rights and values.
When an expression is directed at a person (or organization) and has the potential to harm their reputation, that person might seek refuge under the tort law of defamation. Defamation law provides a legal remedy for those whose personal or professional reputations may be damaged by false or misleading forms of expression.
Despite the remedial nature of defamation law, issues can arise where lawsuits are improperly used for the purpose of suppressing open discourse on matters of public interest. These types of lawsuits are described as “strategic lawsuits against public participation”—otherwise known as “SLAPPs”.
Silencing the Public with a SLAPP
A SLAPP is a legal tactic that attempts to silence or intimidate those who speak out on matters of public interest. Advocacy groups, activists and non-governmental organizations are often targeted by SLAPPs.
A common presumption is that SLAPPs are used by those with significant power and wealth, who have the means to risk the costs of litigation in hopes of silencing their adversaries. However, this is not always the case.
In reality, the only defining feature of a SLAPP is that it relies on the threat of expensive and time-consuming litigation to intimidate and subdue contrary opinions on matters of public interest. When “successful”, SLAPPs have the undesirable effect of restricting freedom of expression as it relates to matters that are of legitimate interest to the Canadian public.
The “Anti-SLAPP” Approach – B.C.’s Protection of Public Participation Act
In 2019, the provincial government introduced the Protection of Public Participation Act (“PPPA”) to better protect the right to free expression on issues relating to matters of public interest. Guided by similar laws from Ontario, the PPPA protects all forms of communication, whether made verbally or in writing, publicly or privately, or whether or not it is directed at a particular person or organization. The PPPA replaced the previous laws in B.C. which had failed to effectively defend against the use of SLAPPs.
Section 4 of the PPPA sets out a mechanism for screening out lawsuits that unduly limit expressions on matters of public interest. Under this provision, a defendant to a defamation lawsuit can bring an application to dismiss the proceeding if they can show that their expression relates to a matter of public interest.
If the court is satisfied by the above condition, the plaintiff must then show that:
- The proceeding has substantial merit,
- The defendant has no valid defence against the merit of the proceeding, and
- The harm caused by the expression is so serious that the public interest in continuing the proceeding actually outweighs the public interest in protecting the expression.
The third requirement under section 4 emphasizes the PPPA’s larger goal of protecting freedom of expression. It gives the court the power to dismiss a proceeding where the protection of an expression is considered more important to the public than the claim of defamation made against it. The court’s ability to dismiss SLAPPs early on will not only save time and money for all those involved but also prevent further harm from developing during the course of litigation.
Applying the PPPA in Canadian Courts
Both the provincial and federal courts have readily embraced the use of B.C.’s anti-SLAPP law in an effort to promote free expression on matters of public interest.
In Hansman v. Neufeld, 2023 SCC 14, the Supreme Court of Canada restored an order dismissing a defamation claim under the PPPA. The decision involved a lawsuit brought by a public school trustee against the president of the British Columbia Teachers’ Federation. The plaintiff claimed that the defendant had made defamatory remarks about him due to his online comments on the implementation of a sexual orientation and gender identity program in schools.
The defendant brought an application to have the lawsuit dismissed under section 4 of the PPPA. Restoring the original decision of the chambers judge, the Court concluded that the value in protecting the defendant’s expression outweighed the resulting harm to the plaintiff.
The defendant had spoken against the online comments made by the plaintiff, which were perceived to be discriminatory and harmful towards transgender and other 2SLGBTQ+ youth. The Court stated that an expression of “counter-speech”—intended to respond to ignorant or harmful expressions against a vulnerable or marginalized group—may weigh more heavily in the balancing exercise in favour of protecting that speech.
On the other hand, there are instances where the public interest in continuing a defamation proceeding outweighs the importance of protecting expression. In January, the B.C. Court of Appeal released its decision to dismiss a number of applications made under section 4 of the PPPA against a former UBC professor accused of physical and sexual assault by a student in 2015. The former professor is now able to proceed with a defamation trial against the defendants, who he alleges to have published false and defamatory statements about him on various online forums and social media platforms.
Takeaways
The courts have made it clear that SLAPPs can no longer rely on the mere presumption of harm to silence free expression. Now, a claim of defamation must present evidence of harm that is so serious that it outweighs the importance of protecting that expression. The use of anti-SLAPP legislation has already proved effective in improving the efficiency of the court system and encouraging freedom of expression on matters of public interest.
If you have questions about how your freedom of expression is protected or if you have any other questions about employment-related matters, please contact Kent Employment Law today and speak to a lawyer.
