Ontario SLAPP Schtick: Bill 83 levels the playing field

Monday, April 14, 2014

Originally published in the Financial Post

The current law of defamation puts a very low burden on the party claiming they have been defamed

By Cara Faith Zwibel

The idea behind Ontario’s proposed anti-SLAPP legislation (Bill 83) has been around for many years, has been the subject of careful study by a group of experts who solicited comments from the public, and has been recommended to protect the public’s right to participate in debates and discussions on issues that affect their lives. Despite apparent agreement by all three political parties, the Bill has been debated for over eight hours and still hasn’t been sent to Committee. If the Bill doesn’t move forward soon, it will likely die when an election is called.

Those who have been watching Bill 83 will know that there has been a flurry of activity in recent weeks. In February, a group of mayors of 10 Northern Ontario cities and towns wrote an open letter to Premier Wynne (published in the Financial Post) on the proposed legislation. The letter condemns the Bill in the strongest possible terms, sounding the alarm bells that the Bill will “destroy the livelihood of northern families through the loss of jobs and will discourage investment in Ontario threatening sustainability, particularly in the resource, energy and heavy manufacturing sectors.” The mayors point to a lawsuit by a forestry company against the environmental NGO Greenpeace as an example of the kind of lawsuit that is perfectly legitimate but would be threatened by Bill 83. They claim the company has a right to protect itself from false accusations that do harm to its reputation but that Bill 83 would make this impossible.

For the moment, let’s leave aside the confusing and contradictory argument made in the letter that Bill 83 is unnecessary because the Supreme Court has already said that the courts cannot be used to stifle legitimate dissent. Apparently Bill 83 is both “dangerous” and “redundant” – go figure! A recent comment in the Financial Post also described the Bill as creating “a licence to lie”.

This is heavy rhetoric, completely one-sided, and also quite misleading. But in a society that values and embraces free speech, it is each person’s right to speak out and share their views on matters of public interest. That’s the whole point of Bill 83. Some of the voices speaking out on the anti-SLAPP bill are speaking with a particular case or issue in mind, and perhaps they should be forgiven if that has skewed their perspective. Still, these comments ignore the facts and distort what anti-SLAPP legislation would actually do. So in the spirit of responding and countering expression that may mislead, here is a little reality check on Bill 83.

In reality, Bill 83 does not change the substantive law with respect to libel or defamation, nor does it change any of the torts (civil suits) that corporations may use to try to address actions that they feel interfere with their contractual or business relationships. Legitimate claims to seek compensation for actual economic loss or obtain redress for genuine harm to reputation are preserved.

In reality, what Bill 83 does is create a process so that those who believe they are being unfairly targeted or punished for participating in public debate or discussion can have an impartial judge assess whether this is, in fact, the case. This would be done relatively quickly and before the lawsuit’s target has to give up speaking out because the cost of defending themselves in court is simply too high. It would also be of benefit to those who initiate lawsuits and are being falsely accused of engaging in a SLAPP suit. Rather than waiting until a lengthy trial is complete or a settlement has been reached, the party suing gets to go to court to be vindicated when their meritorious lawsuit is allowed to continue.

While our current system may be able to, eventually, get rid of abusive lawsuits, by the time this happens, the damage and chilling impact on the speaker has already been done. In reality, the current law of defamation puts a very low burden on the party claiming they have been defamed and quite a high one on the party alleged to have done the defaming. The current system also gives a natural advantage to parties with greater financial resources. The anti-SLAPP bill does not change this. Rather, it seeks to help level the playing field by giving those being sued an opportunity to be heard in court sooner rather than later. Far from being a “license to lie”, the anti-SLAPP bill gives courts a licence to early intervention in a lawsuit that shouldn’t be before the courts in the first place. Those are the realities behind Bill 83, and it would be great to bring those realities to fruition.

Cara Faith Zwibel is a lawyer and Director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association.