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Defamation, the Protection of Public Participation Act and strategic lawsuits against public participation

Protection of Public Participation Act

On March 25, 2019, the Protection of Public Participation Act (the “PPPA”) was assented to bringing into force legislation aimed at combating strategy lawsuits against public participation (SLAPPs). The PPPA aims to provide balanced protections to members of the public to speak freely on matters of public interests without the threat of lawsuits being used to silence and financially bully would-be whistle-blowers into silence. The stated intention of the PPPA is to guard against the vulnerability in the legal system of SLAPPs being used to censor public opinion, intimidate people and silence critics.

The PPPA allows a person against whom a legal proceeding has been brought to apply to the court to dismiss the proceeding if it arises from an expression that relates to a matter of public interest. If an applicant can establish that the proceeding against them arises out of an expression of public interest the onus then shifts to the plaintiff to show that there are grounds to believe that the proceeding has substantial merit, there is no defence to the proceeding and that the harm likely to be suffered by the partying bringing the proceeding is serious enough that the public interest in continuing the proceeding outweighs the public interest in the expression in question.

The recent decision in Hobbs v Warner2019 BCSC 2196 (CanLII) is one of the first reported decisions applying the PPPA to a so-called SLAPP proceeding and is illustrative of the connection between defamation claims and the PPPA.

In Hobbs, the defendant made a PPPA application to dismiss the defamation suit brought against him. The dispute concerned allegations by the plaintiffs, a company and its principals, that the defendant, a former employee of the corporate defendant, defamed them through an e-mailed tip to members of the Vancouver Police Department, the British Columbia Securities Commission and the RCMP regarding concerns about potentially criminal activities of the plaintiffs. The plaintiffs learned of these tips through various related proceedings.

After reviewing judicial and legislative commentary on PPPA and similar legislation in Ontario, the Court in Hobbs held that the PPPA had the same purposes as the parallel Ontario legislation, that being:

  1. to encourage individuals to express themselves on matters of public interest;
  2. to promote broad participation in debates on matters of public interest;
  3. to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
  4. to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

The court cited Pointes Protection; Fortress Real Development Inc. v. Rabidoux2018 ONCA 686 that the courts should broadly interpret whether an expression relates to a matter of public interest in order to bring it under the protection of the PPPA. In doing so, the courts should consider that analysis consistent with the purposes of the PPPA. The court went on to cite the following summary of principles cited in Pointes which was referring to Grant v. Torstar Corp., 2009 SCC 61:

  • The phrase (“relates to a matter of public interest”) does not require that the expression actually furthers the public interest… An expression that relates to a matter of public interest remains so even if the language used is intemperate or even harmful to the public interest…;
  • There is no exhaustive list of topics that fall under the rubric “public interest”…;
  • Context of a particular expression can be crucial in determining whether it relates to a matter of public interest…;
  • A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest…;
  • An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression…;
  • Public interest does not turn on the size of the audience: para. 63;
  • The characterization of the expression as a matter of public interest will usually be made by reference to the circumstances as they existed when the expression was made…;
  • An expression may relate to more than one matter, provided at least one of those matters is “a matter of public interest”…

On the reverse onus provisions, where the suing party attempts to show that their defamation suit should be allowed to continue, the court cited Pointes and held that the court must have reasonable grounds to believe that a claim has substantial merit by examining the application record to see whether it can be shown that the underlying claim is legally tenable and supported by evidence such that it has a real chance of success. If that test is satisfied, the Court must also still find that the party seeking to continue the defamation suit can show the court that the harm they have suffered as a result of the expression in question is serious enough that the public interest in allowing the claim to proceed outweighs the public interest in protecting the freedom of expression enjoyed by the party who made the expression.

The defendant’s employment ended acrimoniously with the corporate defendant. During that process, the defendant became suspicious of his employer’s activities and those suspicions were further deepened and fueled by research he conducted about the publicly available records concerning one of the principal’s past criminal history.

Based on his concerns and suspicions, the defendant concluded that his former employer and its principals were involved in criminal activity, although he was not certain how. He e-mailed a friend at the Vancouver Police Department with his suspicions and copies of articles and decisions related to the past criminal history of his former employer’s principal. When the VPD made some investigations, but did not continue, the defendant then shared his concerns with the British Columbia Securities Commission and the RCMP, largely repeating his same concerns.

Matters snowballed from there with Civil Forfeiture becoming involved, news breaking about an alleged crypto currency scam the company and its principals being involved in various investigations, proceedings and enforcement efforts.

With respect to the PPPA application to dismiss the claim against the defendant, the court found that the defendant’s tips about suspected criminal activities of the plaintiffs related to public interest, being suspicions of crimes including potential money laundering and matters related to drug crime. As such, the defendant passed the threshold of his comments relating to a public interest such that the burden shifted to the plaintiffs to maintain their suit.

The court was satisfied that the plaintiffs established reasonable ground to believe that the defendant’s words were defamatory in nature. The court also found that the defendant’s words referred to each of the plaintiffs. The tips being made to and recorded by the Securities Commission and the RCMP constituted publication. As such, the plaintiffs had established that the elements of defamation might be made out such that they demonstrated their claim was legally tenable and supported by evidence. This was not a finding of defamation or consideration of defences to defamation allegations that might be made out, only that the defamation suit had enough merit to pass the merits-based threshold for continuing despite the defendant meeting the public interest threshold.

The court found that the plaintiffs met the merits-based hurdle to maintaining their defamation suit. They provided more than mere allegations that the defendant’s words were motivated by malice such that there was a reasonable prospect that the defendant’s claims of qualified privilege for making complaints to the various authorities might not succeed. It is important to note that the court observed that sorting through whether such qualified privilege existed or whether malice might be established could take multiple court days, but its task was not to engage in a deep dive analysis, only to consider matters on a threshold basis.

Where the case ultimately turned was on balancing the public interest in the plaintiff’s defamation suit continuing versus the public interest in the protections the PPPA could offer the defendant. The court held that “The plaintiffs have failed to satisfy me that the harm likely to have been, or to be suffered by them, as a result of [the defendant’s] expressions, is serious enough that the public interest engaged in allowing them to proceed with this claim outweighs the public interest in protecting [the defendant’s] freedom of expression.”

The court was not convinced that the harm being suffered by the plaintiffs related to the defendant’s comments; rather, such harm related to the civil forfeiture proceeding and publication of the allegations being made by various investigative bodies against the plaintiffs. There was no proof of a causal link between the defendant’s expressions and the plaintiffs’ alleged losses. The activities being investigated by the various authorities occurred after the defendant left his employment and the investigations were deposed to have related to tips not received from the defendant. The more serious reputational harm alleged to be suffered by the plaintiffs related to investigations into their activities going public rather than the tips left by the defendant.

In conclusion the court held that:

Overall, while I conclude that the quality of [the defendant’s] expressions slightly diminishes the significantly high public interest in protecting reports by citizens to law enforcement, I find the public interest in protecting them still quite high. High enough that the public interest in their protection significantly outweighs any harm that could be found to have been, or be, suffered by the plaintiffs as a result of those expressions. The public interest is, on balance, not served by allowing this action to proceed to an adjudication on the full merit.

Having determined that the defendant would be successful in his PPPA application to dismiss the suit against him, the court also applied other provisions of the PPPA to provide full indemnification to the defendant of his legal costs as a deterrent to similar litigation but declined to award any further damages.

Consideration of the analysis in Hobbs v. Warner and the PPPA should be given to any party thinking about commencing a defamation suit or to any defendant in a defamation suit. The PPPA sends a very clear message that very serious sanctions can follow a defendant successfully setting aside a defamation proceeding made against them on the basis of a PPPA application.

If you are considering potentially commencing a defamation action or are a defendant in a defamation action, it is recommended that you obtain legal advice on how the PPPA might affect proceedings.

By Jeremy Burgess, Pushor Mitchell LLP

Occasional Contributors

In addition to our regular guest bloggers, Inside Internal Controls blog published by First Reference, provides occasional guest post opportunities from various subject matter experts on the topics of risk management and best practices in finance and accounting, information technology, environmental issues, corporate governance, sales/marketing and operations, not-for-profits and business related issues in Canada. If you are a subject matter expert and would like to become an occasional blogger, please contact Yosie Saint-Cyr at editor@firstreference.com. If you liked this post and would like to subscribe to Inside Internal Controls blog click here.

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