The Protection of Public Participation Act, SBC 2019, c 3 (the “PPPA”) targets litigation aimed at silencing debate on issues of public interest — i.e., strategic litigation against public participation or “SLAPP” lawsuits. The PPPA may provide legal protection to individuals who have had proceedings commenced against them for expressing themselves on matters of public interest.
An applicant may apply to the Supreme Court of British Columbia (the “BCSC”) for a dismissal order if the proceeding arises from an expression relating to a matter of public interest made by the applicant:
4(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that
(a) the proceeding arises from an expression made by the applicant, and
(b) the expression relates to a matter of public interest.
Similar to the provisions of the PPPA, Ontario’s Court of Justice Act, RSO 1990, c C.43 (the “CJA”) includes provisions which allow for the dismissal of proceedings that limit public debate in certain circumstances. In August 2018, the Ontario Court of Appeal (the “ONCA”) concurrently released six decisions addressing the interpretation of these provisions in the CJA.
In November 2019, the Supreme Court of Canada (the “SCC”) heard appeals from two of the six ONCA decisions. One appeal arose from a contractual dispute between a land developer and a group of residents opposed to a residential development. The other appeal arose from a defamation lawsuit launched by a medical practitioner against a lawyer in an insurance matter.
The SCC granted intervenor status to a number of women’s rights groups (the “Intervenors”). The Intervenors focused on the application of anti-SLAPP legislation to defamation proceedings against complainants alleging sexualized violence, including sexual assault and sexual harassment. Pursuant to the CJA (and the PPPA), a dismissal application requires an assessment of the competing interests of the plaintiff (reputational rehabilitation) and the defendant (freedom of expression), as well as a determination of whether the expression at issue relates to a matter of public interest.
The Intervenors took the position that anti-SLAPP legislation be read in a manner that empowers survivors of sexualized violence to report, disclose and seek support without fear of being sued or otherwise silenced by the legal system, as the reporting and disclosure of sexualized violence are expressions relating to matters of public interest.
Courts have recognized pre-existing and long-standing barriers to disclosing sexualized violence. Anti-SLAPP legislation may protect complainants of sexualized violence from lawsuits commenced with the intent of silencing the complainants. In British Columbia, an application to dismiss pursuant to the PPPA has been filed in the proceedings Galloway v A.B. The application was filed in response to an action in defamation commenced by the plaintiff. The plaintiff, a former professor at the University of British Columbia (“UBC”) sued A.B. and numerous other defendants in defamation following A.B.’s statements to UBC and others that the plaintiff had sexually harassed and sexually assaulted her. An internal investigation was undertaken by UBC and the plaintiff’s employment with UBC was eventually terminated. A.B.’s application is currently ongoing in the BCSC.