BC Court of Appeal clarifies new Legislation re lawsuits & Public Protection, Libel, & Defamation.
Protection of Public Participation Act clarified in BC’s highest court, the BC Court of Appeal
In March 2019, the Protection of Public Participation Act (the “PPPA”) came into force and effect to assist in lawsuits against public participation.
A recent BC Court of Appeal - one of the first Court of Appeal cases to consider the PPPA - elaborated on the law and its implementation in the Province. In Hobbs v. Warner, 2021 BCCA 290, the defendant made one of the first considered PPPA applications in BC seeking to dismiss the defamation suit brought against him. The issue in this case resulted from allegations that the defendant had defamed the plaintiffs to law enforcement agencies. (namely, the VPD). The defendant was a former employee of the plaintiff.
Justice Goepel, in the case, stated as follows:
STATUTORY FRAMEWORK
[5] The PPPA came into effect on March 25, 2019. Section 4 of the PPPA creates a pre-trial procedure that allows a defendant to apply to the court for an order dismissing a claim arising out of an expression of public interest…
[6] The PPPA was a legislative response to what have been referred to as strategic lawsuits against public participation (“SLAPPs”). SLAPPs are lawsuits initiated against individuals or organizations that speak out or take a position on issues of public interest—with the intention being to silence or otherwise deter that party from participating in public affairs. To mitigate SLAPPs harmful effects, Ontario, British Columbia, and Quebec have enacted laws commonly referred to as anti-SLAPP legislation.
…[8] The PPPA is modelled on and is nearly identical to the Ontario legislation. Subsequent to the decision in the case at bar, the Supreme Court of Canada, in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 [Pointes] and Bent v. Platnick, 2020 SCC 23, provided authoritative guidance as to how the legislation should be interpreted.
[9] In Pointes, Justice Côté, speaking for the Court, set out the legal framework for dealing with applications under the legislation. While Pointes dealt with the Ontario legislation, the parties agree that the framework established in Pointes applies with equal force to s. 4 of the PPPA. After reviewing the legislative history, she considered the provisions’ text and the animating purposes behind the legislation. Justice Côté noted the legislative debates had emphasized proportionality between the public interest in allowing meritorious lawsuits to proceed and the competing public interest of protecting expression on matters of public interest.
[10] In British Columbia, the legislative debates raised similar concerns. In addressing the purpose of the PPPA, the Attorney General said:
What the bill proposes to do is strike a balance between a couple of values. One is the value of protecting an individual’s reputation or a company’s reputation. The other is the value of a robust and rigorous debate that the courts have described as freewheeling, that can be heated, that can result in intemperate comments: British Columbia, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 4th Sess., No. 198 (14 February 2019) at 7018 (Hon. David Eby).
[11] The PPPA creates a multi-step process for determining whether the proposed action should proceed. In the first step of the process, the onus is on the applicant—the defendant in the action—to demonstrate on a balance of probabilities that: 1) the proceeding arises from an expression made by the defendant, and that 2) the expression relates to a matter of public interest. The words “relates to a matter of public interest” are to be given a broad, liberal interpretation: Pointes at para. 28.
[12] If the defendant meets this initial burden, the onus shifts to the respondent—the plaintiff in the action—to show that the action should not be dismissed. At this stage, the plaintiff must satisfy the judge that there are grounds to believe the proceeding has substantial merit and that the defendant has no valid defence to the proceeding. In determining whether there exists “grounds to believe,” the judge must be acutely aware of the limited record, the timing of the motion in the litigation process, and the potential of future evidence arising. Section 4(2)(a) is not a determinative application on the merits of or the existence of a defence to the underlying claim. The assessment is a subjective one made from the motion judge’s perspective: Pointes at para. 41.
[13] The claim must be sufficiently strong such that terminating the action at this preliminary stage would undermine the legislature’s objective of ensuring that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim: Pointes at para. 48. To discharge their burden under s. 4(2)(a)(i), the plaintiff must satisfy the judge that there are grounds to believe that their underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect of success: Pointes at para. 54.
[14] If the plaintiff satisfies the judge that the claim has a real prospect of success, they must then further satisfy the judge, per s. 4(2)(a)(ii), that there are “grounds to believe” that the defendant has “no valid defence” in the underlying proceeding. At this stage, the defendant first puts into play the defences they intend to present, and the plaintiff, who bears the statutory burden, must then show that there are grounds to believe that none of those defences have a real prospect of success: Pointes at para. 60. As with the substantial merit test, the judge must determine a defence’s validity on a limited record at an early stage in the litigation. The judge must engage in a limited assessment of the evidence in determining a defence’s validity.
[15] The final stage of the analysis is found at s. 4(2)(b). In Pointes, Justice Côté described this section as the crux of the analysis. It requires weighing the public interest in allowing meritorious lawsuits to proceed against the public interest in protecting expression on matters of public interest: Pointes at para. 81.
[16] In Bent, Justice Côté, speaking for the majority, reiterated that s. 4(2)(b) is the “crux” or “core” of the analysis and allows the judge to scrutinize “what is really going on” in a particular case before them. This section effectively allows the judge to assess how allowing parties to vindicate their rights through a lawsuit—a fundamental value in its own right—affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy: Bent at para. 139.
[17] For the action to proceed, the provision expressly requires that the public interest in allowing the action to proceed outweighs the public interest in protecting the expression. As noted by Justice Côté, this is substantially different than merely requiring the two considerations be balanced against one another: Pointes at para. 66. For one factor to outweigh the other, the ratio between the two must be at least 51/49.
[18] An inevitable result of the weighing process is that, on occasion, plaintiffs will be prevented from vindicating their rights through otherwise valid and legitimate lawsuits. Conversely, notwithstanding the deleterious effects on freedom of expression and public participation, defendants will occasionally have to defend against lawsuits claiming damages for expressions that relate to matters of public interest.
[19] As a prerequisite to the weighing exercise contemplated by s. 4(2)(b), the plaintiff must establish both the existence of harm and that the expression caused the harm: Pointes at para. 68; Bent at para. 142.
[20] General damages are presumed in defamation actions, and this alone is sufficient to constitute harm: Pointes at para. 71. However, the magnitude of harm is important in assessing whether the harm is sufficiently serious such that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Pointes at para. 70. General damages in the nominal sense will ordinarily not be sufficient for this purpose: Bent at para. 144.
[21] In Bent, the Court also noted that general damages are presumed in defamation actions. In addition, reputational harm is eminently relevant to the harm enquiry. Reputation is one of the most valuable assets a person can possess and is an attribute that must be protected by society’s laws: Bent at para. 146.
[22] Once harm has been established, the next question depends on whether that harm was suffered as a result of the defendant’s expression. The plaintiff must show that they have a legitimate justification for bringing a lawsuit—namely, seeking to remedy legitimate harm—to alleviate the apprehension that they are using the litigation as the tool to quell expression and silence the defendant: Bent at para. 150.
[23] Once the harm has been shown to be causally related to the expression, s. 4(2)(b) requires that the harm and corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting the expression. At this stage of the process, public interest becomes critical to the analysis: Pointes at para. 73.
[24] In Pointes, Justice Côté explained that “public interest” is used differently in s. 4(1)(b) than in s. 4(2)(b):
[74] However, the term “public interest” is used differently in s. [4(2)(b)] than in s. [4(1)(b)]. Under s. [4(1)(b)], the query is concerned with whether the expression relates to a matter of public interest. The assessment is not qualitative — i.e. it does not matter whether the expression helps or hampers the public interest. Under s. [4(2)(b)], in contrast, the legislature expressly makes the public interest relevant to specific goals: permitting the proceeding to continue and protecting the impugned expression. Therefore, not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant here.
[Emphasis in original.]
[25] Accordingly, the judge must consider both the quality of the expression and the motivation behind it. In Pointes, the Court continued:
[75] Indeed, “a statement that contains deliberate falsehoods, [or] gratuitous personal attacks…may still be an expression that relates to a matter of public interest. However, the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies, [or] vitriol” …
[76] While judges should be wary of the inquiry descending into a moralistic taste test, this Court recognized as early as R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, that not all expression is created equal: “While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s.2 (b)” (p. 760).
[26] In Pointes at para. 77, Justice Côté recognized that in conducting the weighing exercise, the judge might look to the core values underlying freedom of expression, such as the search for truth, participation in political decision making, and diversity in forms of self-fulfillment and human flourishing. The closer the expression is to any of these core values, the greater the public interest in protecting it. She then set out a list of factors that may bear on the judge’s public interest weighing exercise:
[78] … I note that in Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, at para. 99, Doherty J.A. made reference to recognized “indicia of a SLAPP suit” (emphasis omitted). He recognized four indicia in particular: (1) “a history of the plaintiff using litigation or the threat of litigation to silence critics”; (2) “a financial or power imbalance that strongly favours the plaintiff”; (3) “a punitive or retributory purpose animating the plaintiff’s bringing of the claim”; and (4) “minimal or nominal damages suffered by the plaintiff” (para. 99). Doherty J.A. found that where these indicia are present, the weighing exercise favours granting the s. [4] motion and dismissing the underlying proceeding. The Court of Appeal for Ontario has since applied these indicia in a number of cases (see, e.g., Lascaris v. B’nai Brith Canada, 2019 ONCA 163, 144 O.R. (3d) 211).
[79] I am of the view that these four indicia may bear on the analysis only to the extent that they are tethered to the text of the statute and the considerations explicitly contemplated by the legislature. This is because the s. [4(2)(b)] stage is fundamentally a public interest weighing exercise and not simply an inquiry into the hallmarks of a SLAPP. Therefore, for this reason, the only factors that might be relevant in guiding that weighing exercise are those tethered to the text of s. [4(2)(b)], which calls for a consideration of: the harm suffered or potentially suffered by the plaintiff, the corresponding public interest in allowing the underlying proceeding to continue, and the public interest in protecting the underlying expression.
[80] Accordingly, additional factors may also prove useful. For example, the following factors, in no particular order of importance, may be relevant for the motion judge to consider: the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s.15 of the Charter or human rights legislation. I reiterate that the relevance of the foregoing factors must be tethered to the text of s. [4(2)(b)] and the considerations explicitly contemplated by the legislature to conduct the weighing exercise.
[Emphasis in original.]
[27] Justice Côté summarized the weighing exercise as follows:
[82] In conclusion, under s. [4(2)(b)] the burden is on the plaintiff — i.e. the responding party — to show on a balance of probabilities that it likely has suffered or will suffer harm, that such harm is a result of the expression established under s. [4(1)] and that the corresponding public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation. This weighing exercise is the crux or core of the s. [4] analysis, as it captures the overarching concern of the legislation, as evidenced by the legislative history. It accordingly should be given due importance by the motion judge in assessing a s. [4] motion.
POLICE TIPS & PRIVILEGE
[28] In Canada, a complaint made to police before judicial proceedings commence is protected by qualified privilege: Caron v. A., 2015 BCCA 47 at para. 37. In Caron, the court explained the law of qualified privilege as follows:
[15] Qualified privilege applies when there is a "duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it": Pressler v. Lethbridge (2000), 2000 BCCA 639 (CanLII), 86 B.C.L.R. (3d) 257 at 296 (C.A). The legal effect of the defence of qualified privilege is to "rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. . . . However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice": Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 144. In short, where there is a public or shared interest in support of the statement both being made and received, a defendant cannot be held to have defamed a plaintiff unless the plaintiff can show that the defendant made the alleged publication for a malicious purpose.
[29] Qualified privilege will be defeated if the dominant motive for publishing the statement is actual or express malice. In Canadian Libel and Slander Actions, (Toronto: Irwin Law, 2004) at 299, R.D. McConchie and D.A. Potts set out a framework for the categories under which a finding of express malice can be made:
A defendant is actuated by express malice if he or she publishes defamatory expression:
i) knowing it was false; or
ii) with reckless indifference whether it is true or false; or
iii) for the dominant purpose of injuring the plaintiff because of spite or animosity; or
iv) for some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion.
[30] The court in Caron contrasted qualified privilege with absolute privilege. In the case of an alleged defamatory publication, absolute privilege provides a complete defence, even if the defendant published the statements with actual malice.
[31] In Caron, this Court was asked to expand the defence of absolute privilege to include complaints to the police. It was brought to the court’s attention that English courts have in recent years adopted a different approach to the privilege placed on police complaints. In Westcott v. Westcott, [2008] EWCA Civ. 818, the English Court of Appeal determined that, for public policy reasons, absolute privilege should be extended to complaints made to police officers.
[32] While noting that Westcott supported the notion that public policy arguments weighed in favour of expanding absolute privilege, this Court refused to do so in Caron, notwithstanding submissions that failing to protect complaints to the police with an absolute privilege could lead to a chilling effect, as victims could be deterred from reporting crimes due to the threat of possible defamation litigation if those crimes are difficult to prove. While the court recognized there was some precedent for expansion, on the record before them, expansion was not justified as necessary to protect the administration of justice: Caron at paras. 52–53.
[33] It should be noted that false police reports can lead to criminal charges. A person who, with intent to mislead, causes a peace officer to enter into an investigation by making a false statement and accuses some other person of having committed an offence or causes them to be suspected of committing an offence may be liable for public mischief under s. 140 of the Criminal Code.