Attorney General David Eby introduces legislation to ward off nuisance suits that stifle public debate

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      For years, environmental groups have been calling for an end to so-called SLAPP suits.

      The acronym stands for strategic lawsuits against public participation.

      And this week, their wish was granted when Attorney General David Eby introduced Bill 2, a.k.a. the Protection of Public Participation Act.

      It allows people to apply to have lawsuits against them dismissed if it relates to an expression on a matter of public interest.

      Under the legislation the defendant can make an application to the court.

      The plaintiff would then have to satisfy the court that there are grounds to believe that the lawsuit has "substantial merit" and that the applicant has "no valid defence".

      In addition, the plaintiff must show that the harm suffered by the applicant's expression "is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression".

      Evidence must be provided by affidavit and either the applicant or the respondent has the opportunity to cross-examine witnesses on their sworn statements.

      People can make similar applications to administrative tribunals. This raises questions whether the legislation could be invoked to try to have complaints to the B.C. Human Rights Tribunal, Employment Standards Tribunal, or Labour Relations Board tossed out.

      The bill was initially submitted to the legislature in May 2018 but didn't pass before the last session ended.

      The West Coast Environmental Law Association is pleased that Eby has brought it back in the spring session.

      “Anti-SLAPP legislation is a proven tool that protects people from costly lawsuits intended to stifle public debate,” WCELA staff lawyer Erica Stahl said on the group's website. “We’re very happy to see that the bill has been reintroduced in B.C.—and this time we hope it makes it to the finish line.”

      Prophet Nation writer Helen Knott was sued by B.C. Hydro in 2016 when she participated in a protest against the $10.7-billion Site C dam in northeastern B.C.

      Bill 2 offers no relief to Site C dam protesters

      Stahl expressed regret, however, that it only applies to suits launched after May 15, 2018 and does not cover court actions filed before that date.

      This timeline will be of interest to opponents of the Site C dam in northeastern B.C.

      Last year, more than 400 critics of the $10.7-billion B.C. Hydro megaproject gathered at a "summit" in Victoria and issued a series of demands, including passage of anti-SLAPP suit legislation in the 2018 spring session of the legislature.

      The communiqué also called on B.C. Hydro to "drop its strategic lawsuit against public participation (SLAPP) suit filed against individuals allegedly involved in peaceful protest against Site C on the banks of the Peace River in 2016".

      There's an online petition calling on B.C. Hydro to drop its "$460 million SLAPP suit against Site C opponents", which has garnered more than 500 signatures.

      This lawsuit was covered extensively in a book called Breaching the Peace: The Site C Dam and a Valley's Stand Against Big Hydro, by Victoria journalist Sarah Cox

      B.C. Hydro has defended its legal action, alleging that its court action was triggered by a "physical blockade of construction work", which created risks to workers and to the project's schedule and costs.

      The anti-SLAPP suit legislation drafted by Eby's ministry gives no opportunity for the defendants in the B.C. Hydro action to file a motion to try to have the case dismissed. That's because the Crown corporation's notice of civil claim was submitted before May 15, 2018.

      Stephen Hui

      SLAPP suits sometimes filed as libel actions

      One way for corporations and wealthy individuals to silence critics has been to file lawsuits alleging libel.

      Traditionally, there were four legal defences for defamation:

      * justification (i.e. truth), which must be proven by the defendant;

      * privilege, which means the comments were said in a venue where protection from defamation exists, such as courtrooms and legislative chambers;

      * fair comment, which was defined in considerable detail in a Supreme Court of Canada case involving social conservative activist Kari Simpson and former broadcaster Rafe Mair;

      * and qualified privilege, which offers immunity to those rebutting inferences spoken with malice or to those who communicate with an interest or a duty to make it and the recipient has a duty to receive it (according to the Supreme Court of Canada in Hill v. Church of Scientology).

      In 2009, the Supreme Court of Canada upheld a new defence for defamation—"responsible communication on matters of public interest"—provided the defendant demonstrates a high enough degree of responsibility in trying to verify what was said or published.

      Each of these defences is costly because it must be advanced in B.C. Supreme Court, not small claims court.

      Eby's legislation offers a pathway for defendants in public-interest cases to reduce their legal costs in future defamation actions.

      Like Ontario, B.C. has a Libel and Slander Act.

      But B.C. also doesn't have legislation providing journalists with the legal right to protect the identity of confidential sources.

      This issue was finally addressed in 2017 when federal legislation, the Journalistic Sources Protection Act, received royal assent in 2017.

      The summary states: "It allows journalists to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source."

      The lack of legislated source protection in B.C. haunted a Vancouver Sun reporter in 2002 when a B.C. Supreme Court justice, Brenda Brown, ordered him to reveal the identity of two nurses to whom he had promised confidentiality in a story about a surgeon.

      This court order came before the case had even gone to examination for discovery.

      Meanwhile in 2015, the Liberal government in Ontario amended its Libel and Slander Act to prevent proceedings that limit freedom of expression on matters of public interest.

      Like the B.C. legislation, the Ontario Protection of Public Participation Act, 2015 limits cross-examination of documentary evidence to seven hours for both the plaintiffs and the defendants to prevent these applications from taking up too much court time.

      Ontario judges have discretion under the legislation to extend the time periods for cross-examination. The same discretionary power is included in the B.C. legislation.

      In Ontario, however, these motions must be filed before the court no later than 60 days after the notice of civil claim was filed.

      There's no similar provision in the B.C. legislation.