39:1 Bill 138, Protection of Public Participation Act, 2008

Horwath, Andrea

Viewing: Original (current version) pdf

Bill 138                                                        2008

An Act to encourage participation in public debate, and to dissuade persons from bringing legal proceedings or claims for an improper purpose

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

   1.  (1)  In this Act,

“claim” means any claim for relief within a proceeding; (“demande”)

“defendant” means a person against whom a proceeding is brought or maintained and includes a respondent in a tribunal hearing; (“défendeur”)

“government body” means any level of government, and includes,

  (a)  any government related agency, within the meaning of the Ministry of Government Services Act,

  (b)  any body appointed or established by, or from which advice is requested by, the provincial government, and any equivalent body of any other level of government, and

   (c)  any public body within the meaning of section 17.1 of the Ministry of Government Services Act; (“organisme d’État”)

“improper purpose” has the meaning set out in subsection (2); (“but illégitime”)

“level of government” includes,

  (a)  the federal government,

  (b)  the provincial government,

   (c)  the government of any other province or territory of Canada, and

  (d)  the government of any municipality or regional district; (“ordre de gouvernement”)

“plaintiff” means a person who initiates or maintains a proceeding against a defendant and includes an applicant in a tribunal hearing; (“demandeur”)

“proceeding” means any action, suit, hearing, matter, cause, counterclaim, appeal or originating application that is brought in the Superior Court of Justice, the Ontario Court of Justice or a tribunal, but does not include a prosecution for an offence or a crime; (“instance”)

“public participation” means communication or conduct aimed at influencing public opinion, or promoting or furthering lawful action by the public or by any government body, in relation to an issue of public interest, but does not include communication or conduct,

  (a)  in respect of which an information has been laid or an indictment has been preferred in a prosecution conducted by the Attorney General or the Attorney General of Canada or in which the Attorney General or the Attorney General of Canada intervenes,

  (b)  that constitutes a breach of the Human Rights Code or any equivalent enactment of any other level of government,

   (c)  that contravenes any order of any court,

  (d)  that causes damage to or destruction of real property or personal property,

  (e)  that causes physical injury,

    (f)  that constitutes trespass to real or personal property, or

  (g)  that is otherwise considered by a court to be unlawful or an unwarranted interference by the defendant with the rights or property of a person; (“participation aux affaires publiques”)

“reasonable costs and expenses”, in relation to a proceeding or claim, means costs and expenses that,

  (a)  have been agreed on between the plaintiff and the defendant, or

  (b)  if no agreement has been reached, are in an amount determined by the court in accordance with section 131 of the Courts of Justice Actor by the tribunal in accordance with the rules of the tribunal, as the case may be. (“dépens et frais raisonnables”)

Improper purpose

   (2)  A proceeding or claim is brought or maintained for an improper purpose if,

  (a)  the plaintiff could have no reasonable expectation that the proceeding or claim will succeed; and

  (b)  a principal purpose for bringing the proceeding or claim is,

           (i)  to dissuade the defendant from engaging in public participation,

          (ii)  to dissuade other persons from engaging in public participation,

         (iii)  to divert the defendant’s resources from public participation to the proceeding, or

         (iv)  to penalize the defendant for engaging in public participation.

Purposes of this Act

   2.  The purposes of this Act are to,

  (a)  encourage public participation, and dissuade persons from bringing or maintaining proceedings or claims for an improper purpose, by providing,

           (i)  an opportunity, at or before the trial or hearing of a proceeding, for a defendant to allege that, and for the court or tribunal to consider whether, the proceeding or a claim within the proceeding is brought or maintained for an improper purpose,

          (ii)  a means by which a proceeding or claim that is brought or maintained for an improper purpose can be summarily dismissed,

         (iii)  a means by which persons against whom a proceeding or a claim that is brought or maintained for an improper purpose may obtain reimbursement for all reasonable costs and expenses that they incur as a result,

         (iv)  a means by which punitive or exemplary damages may be imposed in respect of a proceeding or claim that is brought or maintained for an improper purpose, and

          (v)  protection from liability for defamation if the defamatory communication or conduct constitutes public participation; and

  (b)  preserve the right of access to the courts and tribunals for all proceedings and claims that are not brought or maintained for an improper purpose.

Defamation

   3.  Public participation constitutes an occasion of qualified privilege and, for that purpose, the communication or conduct that constitutes the public participation is deemed to be of interest to all persons who, directly or indirectly,

  (a)  receive the communication; or

  (b)  witness the conduct.

Application for summary dismissal

   4.  (1)  If a defendant against whom a proceeding is brought or maintained considers that the whole of the proceeding or any claim within the proceeding has been brought or is being maintained for an improper purpose, the defendant may, subject to subsection (2), bring an application for one or more of the following orders:

    1.  To dismiss the proceeding or claim, as the case may be.

    2.  For reasonable costs and expenses.

    3.  For punitive or exemplary damages against the plaintiff.

Date for hearing of application

   (2)  If an application is brought under subsection (1),

  (a)  the applicant must set, as the date for the hearing of the application, a date that is,

           (i)  not more than 60 days after the date on which the application is brought, and

          (ii)  not less than 120 days before the date scheduled for the trial or hearing of the proceeding; and

  (b)  all further applications, procedures or other steps in the proceeding are, unless the court or tribunal otherwise orders, suspended until the application has been heard and decided.

Injunctions

   (3)  Nothing in clause (2) (b) prevents the court from granting an injunction pending a determination of the rights under this Act of the parties to a proceeding.

Consultation and approval processes

   (4)  If an application is brought under subsection (1), the court or tribunal may order that any public consultation or approval process that is conducted by a government body and that relates to the proceeding be suspended until the application has been heard and decided.

Defendant satisfies court or tribunal on balance of probabilities

   5.  (1)  On an application brought by a defendant under subsection 4 (1), the defendant may obtain an order under subsection (2) of this section if the defendant satisfies the court or tribunal, on a balance of probabilities, that, when viewed on an objective basis,

  (a)  the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation; and

  (b)  a principal purpose for which the proceeding or claim was brought or maintained is an improper purpose.

Orders available to defendant

   (2)  If, on an application brought by a defendant under subsection 4 (1), the defendant satisfies the court or tribunal under subsection (1) of this section in relation to the proceeding or in relation to a claim within the proceeding,

  (a)  the defendant may obtain one or both of the following orders:

           (i)  an order dismissing the proceeding or claim, as the case may be,

          (ii)  an order that the plaintiff pay all of the reasonable costs and expenses incurred by the defendant in relation to the proceeding or claim, as the case may be, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding or claim; and

  (b)  the court or tribunal may, in addition to the orders referred to in clause (a), on its own motion or on the application of the defendant, award punitive or exemplary damages against the plaintiff.

Defendant satisfies court or tribunal of realistic possibility

   (3)  If, on an application brought by a defendant under subsection 4 (1), the defendant is unable to satisfy the court or tribunal under subsection (1) of this section, the defendant may obtain an order under subsection (4) if the defendant satisfies the court or tribunal that there is a realistic possibility that, when viewed on an objective basis,

  (a)  the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation; and

  (b)  a principal purpose for which the proceeding or claim was brought or maintained is an improper purpose.

Orders available to defendant

   (4)  If, on an application brought by the defendant under subsection 4 (1), the defendant satisfies the court or tribunal as required in subsection (3) of this section in relation to the proceeding or claim within the proceeding, the court or tribunal may make the following orders:

    1.  An order, on the terms and conditions that the court or tribunal considers appropriate, that the plaintiff provide as security an amount that, in the court or tribunal’s opinion, will be sufficient to provide payment to the defendant of the full amounts of the reasonable costs and expenses and punitive or exemplary damages to which the defendant may become entitled under subsection (2).

    2.  An order that any settlement, discontinuance or abandonment of the proceeding be effected with the approval of the court or tribunal and on the terms the court or tribunal considers appropriate.

Same

   (5)  On an application for the settlement, discontinuance or abandonment of a proceeding or claim in respect of which an order was made under paragraph 2 of subsection (4), the court or tribunal may, despite any agreement to the contrary between the defendant and the plaintiff, order the plaintiff to pay all of the reasonable costs and expenses incurred by the defendant in relation to the proceeding or claim, as the case may be, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding or claim.

Application for dismissal for want of prosecution

   (6)  If, in a proceeding in which the defendant has obtained an order under subsection (4), the defendant makes an application to dismiss the proceeding for want of prosecution, the defendant may obtain an order under subsection (7) if,

  (a)  the proceeding is dismissed for want of prosecution; and

  (b)  the plaintiff is unable to satisfy the court or tribunal on the application that, when viewed on an objective basis,

           (i)  the communication or conduct in respect of which the proceeding was brought does not constitute public participation, or

          (ii)  none of the principal purposes for which the proceeding was brought or maintained were improper purposes.

Orders available to defendant

   (7)  If, under subsection (6), the defendant is entitled to obtain an order under this subsection, the defendant may obtain an order that the plaintiff pay all of the reasonable costs and expenses incurred by the defendant in relation to the proceeding, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding.

Onus on plaintiff at trial or hearing

   6.  (1)  A defendant who has obtained an order under subsection 5 (4) in respect of a proceeding or claim may, at the trial or hearing of the proceeding, obtain one or more of the orders referred to in subsection 5 (2) if,

  (a)  the defendant argues at the trial or hearing that,

           (i)  the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation, and

          (ii)  the proceeding or claim was brought or maintained for an improper purpose;

  (b)  the proceeding or claim is discontinued or abandoned by the plaintiff or is dismissed; and

   (c)  the plaintiff is unable to satisfy the court at trial or the tribunal at the hearing that, when viewed on an objective basis,

           (i)  the communication or conduct in respect of which the proceeding or claim was brought does not constitute public participation, or

          (ii)  none of the principal purposes for which the proceeding or claim was brought or maintained were improper purposes.

Same

   (2)  A defendant who has not obtained an order under subsection 5 (4) may, at the trial or hearing of the proceeding, obtain one or more of the orders referred to in subsection 5 (2) if,

  (a)  the defendant gives notice to the plaintiff, at least 120 days before the date scheduled for the trial or hearing of the proceeding, that the defendant intends at the trial or hearing to seek an order under this section in respect of a proceeding or claim;

  (b)  the defendant satisfies the court at trial or the tribunal at the hearing that there is a realistic possibility that, when viewed on an objective basis,

           (i)  the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation, and

          (ii)  a principal purpose for which the proceeding or claim was brought or maintained is an improper purpose;

   (c)  the proceeding or claim is discontinued or abandoned by the plaintiff or is dismissed; and

  (d)  the plaintiff is unable to satisfy the court at trial or the tribunal at the hearing that, when viewed on an objective basis,

           (i)  the communication or conduct in respect of which the proceeding or claim was brought does not constitute public participation, or

          (ii)  none of the principal purposes for which the proceeding or claim was brought or maintained were improper purposes.

Court or tribunal may hear any evidence and argument

   7.  (1)  Without limiting any other rights the parties may have to present evidence and make arguments in an application brought under subsection 4 (1) or at a trial or hearing under subsection 6 (1) or (2), the parties may present evidence and make arguments as follows,

  (a)  as to whether the communication or conduct in relation to which the proceeding was brought constituted public participation; and

  (b)  as to whether the proceeding was brought or is being maintained for an improper purpose.

Same

   (2)  The parties may present the evidence or make the arguments referred to in clauses (1) (a) and (b) whether or not the evidence or arguments relate to the particulars of the claim or claims raised by the plaintiff.

Disposition of security

   8.  (1)  If a defendant succeeds under subsection 5 (7) in respect of a proceeding, the defendant may obtain an order that the reasonable costs and expenses to which the defendant is entitled under the order made under subsection 5 (7) be paid to the defendant out of any security provided by the plaintiff under subsection 5 (4).

Same

   (2)  If a defendant succeeds under subsection 6 (1) in respect of the whole of a proceeding, the defendant may obtain an order that the following amounts be paid to the defendant out of any security provided by the plaintiff under subsection 5 (4):

    1.  The reasonable costs and expenses to which the defendant is entitled under the order made under subsection 6 (1).

    2.  Any punitive or exemplary damages awarded to the defendant by the court or tribunal.

Same

   (3)  If a defendant succeeds under subsection 6 (1) in respect of a claim brought as part of a proceeding, the defendant may obtain an order that the following amounts be paid to the defendant out of any security provided by the plaintiff under subsection 5 (4):

    1.  Whichever of the following the court or tribunal considers best gives effect to the purposes of this Act:

            i.  The proportion of the reasonable costs and expenses referred to in subparagraph ii that the claim bears to the proceeding as a whole.

           ii.  The reasonable costs and expenses incurred by the defendant in relation to the proceeding, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding.

    2.  Any punitive or exemplary damages awarded to the defendant by the court or tribunal.

Return of security

   (4)  After the defendant receives payment of the money to which the defendant is entitled out of any security provided by the plaintiff under subsection 5 (4), any portion of that security that is not provided to the defendant under this section, including any interest that has accrued on that money, must be returned to the plaintiff.

Relief under this Act in addition to other available relief

   9.  Nothing in this Act limits or restricts the rights available to a plaintiff or defendant under any Act or any rule of any court or tribunal.

Commencement

   10.  This Act comes into force on the day it receives Royal Assent.

Short title

   11.  The short title of this Act is the Protection of Public Participation Act, 2008.

 

EXPLANATORY NOTE

The Bill protects persons from being subjected to legal proceedings that would stifle their ability to speak out on public issues or to promote, in the public interest, action by the public or by any level of government.  Provision is made in the Bill for such legal proceedings to be dismissed at an early stage, for defendants subjected to such proceedings to be indemnified for the costs they incur in responding to those proceedings and for the court or tribunal to award additional damages to those defendants in appropriate circumstances.  Communication or conduct constituting public participation is expressly designated as an occasion of qualified privilege in relation to all persons who become aware of that communication or conduct.

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