40:1 Bill 132, Protection of Public Participation Act, 2012

Naqvi, Yasir

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Bill 132                                                       2012

An Act to encourage participation on matters of public interest and to dissuade persons from bringing legal proceedings that interfere with such participation

Note: This Act amends the Statutory Powers Procedure Act.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

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

Definitions

   1.  In this Act,

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

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

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

“regulations” means the regulations made under this Act. (“règlements”)

Purposes

   2.  The purposes of this Act are,

  (a)  to expand the democratic benefits of broad participation in public affairs; and

  (b)  to reduce the risk that such participation will be unduly hampered by fear of legal action.

Motion for dismissal, communication or conduct re matter of public interest

   3.  A defendant may bring a motion to dismiss a proceeding if the proceeding is in respect of a communication or conduct that, in the defendant’s opinion, involves a matter of public interest.

Test for dismissal

   4.  On a motion brought by a defendant under section 3, the court or tribunal may dismiss the proceeding,

  (a)  if the defendant satisfies the court or tribunal, on a balance of probabilities, that the communication or conduct that the proceeding is in respect of involves a matter of public interest; and

  (b)  if the plaintiff does not satisfy the court or tribunal, on a balance of probabilities, that,

           (i)  the plaintiff’s claim has substantial merit,

          (ii)  there are substantial grounds to believe that the defendant has no valid defence, and

         (iii)  the harm the plaintiff has suffered outweighs the harm that will be done to freedom of expression on a matter of public interest if the proceeding is allowed to proceed.

Successful motion: costs, etc.

   5.  If the proceeding is dismissed, the following rules apply:

    1.  The defendant is entitled to costs in an amount that represents full indemnity, unless the court or tribunal does not consider it appropriate in the circumstances.

    2.  If the court or tribunal finds that the proceeding has been brought in bad faith or for an improper purpose, such as to punish, silence or intimidate the defendant, the court or tribunal may order the plaintiff to pay damages to the defendant in an amount that the court or tribunal considers fair in the circumstances.

    3.  The court or tribunal shall not grant leave to the plaintiff to amend its pleadings in the proceeding unless the court or tribunal considers it necessary to do so in the interests of justice.

Unsuccessful motion: costs

   6.  If the proceeding is not dismissed, the court or tribunal is permitted to order the defendant to pay the plaintiff’s costs of the motion in an amount that the court or tribunal considers fair in the circumstances.

Procedure

Notice of motion

   7.  (1)  A motion under section 3 shall be commenced by notice of motion.

Service

   (2)  The defendant shall serve the notice of motion on all parties to the proceeding, together with all affidavits upon which the defendant intends to rely.

Hearing date

   (3)  The defendant shall set as the hearing date for the motion a date that is within 60 days after service of the notice of motion.

Responding evidence

   (4)  The plaintiff shall serve on all parties to the proceeding all affidavits upon which he or she intends to rely within 14 days after service of the notice of motion.

Cross-examination

   (5)  Within seven days after service of the plaintiff’s affidavit evidence,

  (a)  the defendant may cross-examine the deponent of any affidavit served by the plaintiff; and

  (b)  the plaintiff may cross-examine the deponent of any affidavit served by the defendant.

Same

   (6)  A party shall complete all of his or her cross-examinations within one day.

Factum

   (7)  The defendant shall serve a factum consisting of a concise argument stating the facts and law he or she relies on at least four days before the hearing date for the motion.

Same

   (8)  The plaintiff shall serve a factum consisting of a concise argument stating the facts and law he or she relies on at least three days before the hearing date for the motion.

Filing

   (9)  The defendant and plaintiff shall file with the court or tribunal, at least two days before the hearing date for the motion, all documents pertaining to the motion that have been served.

Other requirements

   (10)  The regulations may prescribe terms and requirements that apply in connection with the procedures under this section.

Further steps

   8.  (1)  When a notice of motion is served under subsection 7 (2), all further motions, procedures or other steps in the proceeding are suspended until the motion has been heard and decided, unless the court or tribunal orders otherwise.

Injunctions

   (2)  Nothing in subsection (1) prevents the court or tribunal from granting an injunction.

Related proceedings

   9.  (1)  If the plaintiff is engaged in any other proceeding, public consultation process or public approval process that relates to the motion brought under section 3, the court or tribunal shall make an order suspending that proceeding or process until the motion has been heard and decided, whether or not the proceeding or process is before a court, a tribunal or another public forum.

Undue hardship

   (2)  A court or tribunal may lift a suspension ordered under subsection (1) if, in the opinion of the court or tribunal, the suspension would cause the plaintiff undue hardship.

Appeal

   10.  (1)  A party may appeal to the Divisional Court from a decision of a tribunal on the motion, or to the Court of Appeal from a decision of a court on the motion, in accordance with the rules of court.

Suspension continued

   (2)  A court hearing an appeal under subsection (1) may, on a motion by the defendant, order that any suspension ordered under subsection 9 (1) be continued until the appeal has been heard and decided.

Expedited

   (3)  An appeal shall be dealt with on an expedited basis.

Qualified privilege

   11.  Any communication on a matter of public interest by a person who has a direct interest in the matter to another person who has a direct interest in the matter has qualified privilege, whether or not the media are present or report on the communication.

Regulations

   12.  The Lieutenant Governor in Council may make regulations,

  (a)  prescribing terms and requirements that apply in connection with the procedures under section 7;

  (b)  governing any matter that is necessary or advisable for the effective enforcement and administration of this Act.

Amendments

   13.  Section 17.1 of the Statutory Powers Procedure Act is amended by adding the following subsections:

Application in writing

   (2.1)  The application for an order to pay costs must be made in writing, unless the tribunal is of the opinion that this is likely to cause the party significant prejudice.

.     .     .     .     .

Costs of application for costs

   (4.1)  For greater certainty, and without limiting the generality of subsection (4), a tribunal may order a party who is unsuccessful in an application for an order to pay costs to pay all of the costs of the other party in relation to the application for costs.

Commencement

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

Short title

   15.  The short title of this Act is the Protection of Public Participation Act, 2012.

 

EXPLANATORY NOTE

The Bill enacts the Protection of Public Participation Act, 2012.  The new Act authorizes a defendant in a proceeding to bring a motion for dismissal if the proceeding is in respect of a communication or conduct that involves a matter of public interest.  The Act sets out the test to be considered by a court or tribunal when considering whether to dismiss the proceeding, rules regarding the payment of costs, the procedure to be followed when such a motion is brought, and a right to appeal.  In addition, the Act includes rules relating to the suspension of related proceedings and qualified privilege.

The Bill also amends the Statutory Powers Procedure Act to provide that, except in specified circumstances, applications for orders to pay costs must be made in writing.

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