On November 12, 2019, the Supreme Court of Canada will hear two appeals concerning freedom of expression on matters of public interest and lawsuits that aim to stifle that expression. These lawsuits are sometimes called Strategic Lawsuits Against Public Participation or SLAPP suits. Both appeals, 1704604 Ontario Ltd. v. Pointes Protection Association and Bent v. Platnick, will require the Court to interpret s. 137.1 of Ontario’s Courts of Justice Act (CJA). The CJA is meant to discourage SLAPP suits by allowing someone who has been sued as a result of their public interest expression to have the procedure dismissed early in the litigation. British Columbia’s Protection of Public Participation Act is essentially identical to the CJA.
In one of the appeals, a not-for-profit organization gave evidence before the Ontario Municipal Board opposing a subdivision development that impacted a wetland. The developer sued the organization for allegedly breaching a settlement agreement by giving that evidence. In the other appeal, a lawyer who was the president-elect of the Ontario Trial Lawyers Association (OTLA) wrote an email to the OTLA’s listserv that was critical of a doctor involved in a case. The doctor sued the lawyer for allegedly libelling him in the email. The appeals concern whether the not-for-profit and the lawyer can use the CJA to have the lawsuits against them dismissed without a full trial.
The British Columbia Civil Liberties Association (BCCLA) is intervening in these appeals in support of its strong commitment to freedom of expression. It has long advocated for legislation aimed at stopping SLAPP suits. The BCCLA is concerned that the Court of Appeal for Ontario has unduly narrowed the application of the CJA, and will argue in favour of an interpretation of the CJA that encourages expression on matters of public interest, promotes broad participation in public interest debates, and discourages using litigation to limit expression on matters of public interest.
The BCCLA will focus its submissions on ss. 137.1(4)(b) of the CJA, which requires that courts weigh the public interest in protecting the public interest expression at issue against the harm caused by that expression. The BCCLA will offer a framework for interpreting the CJA that considers factors such as the motive, mode, and subject matter of the contested expression based on the Court’s previous decisions on freedom of expression.
The BCCLA has been, and continues to be, committed to advocating for the protection of freedom of expression, a right guaranteed by ss. 2(b) of the Canadian Charter of Rights and Freedoms.
The BCCLA is represented in these appeals by Peter Kolla and Amanda Bertucci of Goodmans LLP and Maia Tsurumi.