Bill 52, Protection of Public Participation Act, 2015

Bill 52 2015

An Act to amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest

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

Courts of Justice Act

   1.  Subsection 6 (1) of the Courts of Justice Act is amended by adding the following clause:

  (d)  an order made under section 137.1.

   2.  Section 19 of the Act is amended by adding the following subsection:

Same

   (1.0.1)  Clauses (1) (a) and (b) do not apply to orders made under section 137.1.

   3.  The Act is amended by adding the following sections:

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)

Dismissal of proceeding that limits debate

Purposes

   137.1  (1)  The purposes of this section and sections 137.2 to 137.5 are,

  (a)  to encourage individuals to express themselves on matters of public interest;

  (b)  to promote broad participation in debates on matters of public interest;

   (c)  to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

  (d)  to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Definition, "expression"

   (2)  In this section,

"expression" means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

Order to dismiss

   (3)  On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

No dismissal

   (4)  A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

  (a)  there are grounds to believe that,

           (i)  the proceeding has substantial merit, and

          (ii)  the moving party has no valid defence in the proceeding; and

  (b)  the harm likely to be or have been suffered by the responding party as a result of the moving party's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

No further steps in proceeding

   (5)  Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

No amendment to pleadings

   (6)  Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

  (a)  in order to prevent or avoid an order under this section dismissing the proceeding; or

  (b)  if the proceeding is dismissed under this section, in order to continue the proceeding.

Costs on dismissal

   (7)  If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

Costs if motion to dismiss denied

   (8)  If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

Damages

   (9)  If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

Procedural matters

Commencement

   137.2  (1)  A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced.

Motion to be heard within 60 days

   (2)  A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court.

Hearing date to be obtained in advance

   (3)  The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served.

Limit on cross-examinations

   (4)  Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants.

Same, extension of time

   (5)  A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice.

Appeal to be heard as soon as practicable

   137.3  An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal.

Stay of related tribunal proceeding

   137.4  (1)  If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal.

Notice

   (2)  The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

  (a)  notice of the stay; and

  (b)  a copy of the notice of motion that was filed with the tribunal.

Duration

   (3)  A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4).

Stay may be lifted

   (4)  A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

  (a)  the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

  (b)  the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay.

Same

   (5)  A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal.

Statutory Powers Procedure Act

   (6)  This section applies despite anything to the contrary in the Statutory Powers Procedure Act.

Application

   137.5  Sections 137.1 to 137.4 apply in respect of proceedings commenced on or after the day the Protection of Public Participation Act, 2015 received first reading.

Libel and Slander Act

   4.  The Libel and Slander Act is amended by adding the following section:

Communications on Public Interest Matters

Application of qualified privilege

   25.  Any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons.

Statutory Powers Procedure Act

   5.  Subsections 17.1 (7), (8) and (9) of the Statutory Powers Procedure Act are repealed and the following substituted:

Submissions must be in writing

   (7)  Despite sections 5.1, 5.2 and 5.2.1, submissions for a costs order, whether under subsection (1) or under an authority referred to in subsection (6), shall be made by way of written or electronic documents, unless a party satisfies the tribunal that to do so is likely to cause the party significant prejudice.

Commencement and Short Title

Commencement

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

Short title

   7.  The short title of this Act is the Protection of Public Participation Act, 2015.

EXPLANATORY NOTE

This Explanatory Note was written as a reader's aid to Bill 52 and does not form part of the law.  Bill 52 has been enacted as Chapter 23 of the Statutes of Ontario, 2015.

The Bill amends the Courts of Justice Act to add sections 137.1 to 137.5, which create a process for getting a proceeding against a person dismissed if it is shown that the proceeding arises from an expression made by the person that relates to a matter of public interest (section 3 of the Bill). Subsection 137.1 (1) sets out the purposes of the new sections.

Under subsection 137.1 (3), a person against whom a proceeding is brought may bring a motion to get the proceeding dismissed on the basis that the proceeding arises from an expression made by the person that relates to a matter of public interest (subsection 137.1 (2) defines "expression" for the purposes of section 137.1). If the judge hearing the motion is satisfied of this, he or she must dismiss the proceeding unless the party who brought the proceeding satisfies the judge that the proceeding should not be dismissed because the conditions in subsection 137.1 (4) are met. These conditions include that there are grounds to believe that the proceeding has substantial merit and that the person against whom the proceeding was brought has no valid defence in the proceeding. Once a motion under section 137.1 is brought, no further steps may be taken in the proceeding until the motion is finally disposed of (subsection 137.1 (5)). Section 137.1 also sets out restrictions on amending pleadings in the proceeding (subsection 137.1 (6)) and sets out rules for awards of costs and damages on the motion to dismiss (subsections 137.1 (7), (8) and (9)).

Section 137.2 deals with various procedural aspects of the motion to dismiss under section 137.1. These include that the motion may be brought at any time after the proceeding to which it relates has commenced (subsection 137.2 (1)); that the motion must be heard within 60 days (subsection 137.2 (2)); and that cross-examination on documentary evidence is limited to seven hours per side, unless a judge orders otherwise (subsections 137.2 (4) and (5)).

An appeal of a motion under section 137.1 must be heard as soon as practicable (section 137.3). Sections 1 and 2 of the Bill amend sections 6 and 19 of the Act to provide that appeals of motions made under section 137.1 shall be heard by the Court of Appeal.

Section 137.4 creates a process by which a person who brought a motion under section 137.1 can have a tribunal proceeding automatically stayed if he or she believes that the tribunal proceeding is related to the same matter of public interest that he or she alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1. The stay remains in effect until the motion under section 137.1 is finally disposed of (subsection 137.4 (3)); however, a judge may, on motion, order that it be lifted earlier if one of the conditions in subsection 137.4 (4) is met.

Section 137.5 specifies that sections 137.1 to 137.4 apply to proceedings commenced on or after the day the Bill received first reading.

The Bill also amends the Libel and Slander Act to add section 25, which states that any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons (section 4 of the Bill).

Finally, the Bill amends section 17.1 of the Statutory Powers Procedure Act to provide that submissions for a costs order in a proceeding must be made in writing, unless a tribunal determines that to do so is likely to cause a party to the proceeding significant prejudice. In addition, three spent subsections in that section are repealed (section 5 of the Bill).

The Bill comes into force on Royal Assent (section 6 of the Bill).

Bill 52 2014

An Act to amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest

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

Courts of Justice Act

   1.  Subsection 6 (1) of the Courts of Justice Act is amended by adding the following clause:

  (d)  an order made under section 137.1.

   2.  Section 19 of the Act is amended by adding the following subsection:

Same

   (1.0.1)  Clauses (1) (a) and (b) do not apply to orders made under section 137.1.

   3.  The Act is amended by adding the following sections:

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)

Dismissal of proceeding that limits debate

Purposes

   137.1  (1)  The purposes of this section and sections 137.2 to 137.5 are,

  (a)  to encourage individuals to express themselves on matters of public interest;

  (b)  to promote broad participation in debates on matters of public interest;

   (c)  to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

  (d)  to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Definition, "expression"

   (2)  In this section,

"expression" means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

Order to dismiss

   (3)  On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

No dismissal

   (4)  A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

  (a)  there are grounds to believe that,

           (i)  the proceeding has substantial merit, and

          (ii)  the moving party has no valid defence in the proceeding; and

  (b)  the harm likely to be or have been suffered by the responding party as a result of the moving party's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

No further steps in proceeding

   (5)  Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

No amendment to pleadings

   (6)  Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

  (a)  in order to prevent or avoid an order under this section dismissing the proceeding; or

  (b)  if the proceeding is dismissed under this section, in order to continue the proceeding.

Costs on dismissal

   (7)  If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

Costs if motion to dismiss denied

   (8)  If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

Damages

   (9)  If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

Procedural matters

Commencement

   137.2  (1)  A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced.

Motion to be heard within 60 days

   (2)  A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court.

Hearing date to be obtained in advance

   (3)  The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served.

Limit on cross-examinations

   (4)  Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants.

Same, extension of time

   (5)  A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice.

Appeal to be heard as soon as practicable

   137.3  An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal.

Stay of related tribunal proceeding

   137.4  (1)  If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal.

Notice

   (2)  The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

  (a)  notice of the stay; and

  (b)  a copy of the notice of motion that was filed with the tribunal.

Duration

   (3)  A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4).

Stay may be lifted

   (4)  A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

  (a)  the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

  (b)  the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay.

Same

   (5)  A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal.

Statutory Powers Procedure Act

   (6)  This section applies despite anything to the contrary in the Statutory Powers Procedure Act.

Application

   137.5  Sections 137.1 to 137.4 apply in respect of proceedings commenced on or after the day the Protection of Public Participation Act, 2014 received first reading.

Libel and Slander Act

   4.  The Libel and Slander Act is amended by adding the following section:

Communications on Public Interest Matters

Application of qualified privilege

   25.  Any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons.

Statutory Powers Procedure Act

   5.  Subsections 17.1 (7), (8) and (9) of the Statutory Powers Procedure Act are repealed and the following substituted:

Submissions must be in writing

   (7)  Despite sections 5.1, 5.2 and 5.2.1, submissions for a costs order, whether under subsection (1) or under an authority referred to in subsection (6), shall be made by way of written or electronic documents, unless a party satisfies the tribunal that to do so is likely to cause the party significant prejudice.

Commencement and Short Title

Commencement

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

Short title

   7.  The short title of this Act is the Protection of Public Participation Act, 2014.

EXPLANATORY NOTE

The Bill amends the Courts of Justice Act to add sections 137.1 to 137.5, which create a process for getting a proceeding against a person dismissed if it is shown that the proceeding arises from an expression made by the person that relates to a matter of public interest (section 3 of the Bill). Subsection 137.1 (1) sets out the purposes of the new sections.

Under subsection 137.1 (3), a person against whom a proceeding is brought may bring a motion to get the proceeding dismissed on the basis that the proceeding arises from an expression made by the person that relates to a matter of public interest (subsection 137.1 (2) defines "expression" for the purposes of section 137.1). If the judge hearing the motion is satisfied of this, he or she must dismiss the proceeding unless the party who brought the proceeding satisfies the judge that the proceeding should not be dismissed because the conditions in subsection 137.1 (4) are met. These conditions include that there are grounds to believe that the proceeding has substantial merit and that the person against whom the proceeding was brought has no valid defence in the proceeding. Once a motion under section 137.1 is brought, no further steps may be taken in the proceeding until the motion is finally disposed of (subsection 137.1 (5)). Section 137.1 also sets out restrictions on amending pleadings in the proceeding (subsection 137.1 (6)) and sets out rules for awards of costs and damages on the motion to dismiss (subsections 137.1 (7), (8) and (9)).

Section 137.2 deals with various procedural aspects of the motion to dismiss under section 137.1. These include that the motion may be brought at any time after the proceeding to which it relates has commenced (subsection 137.2 (1)); that the motion must be heard within 60 days (subsection 137.2 (2)); and that cross-examination on documentary evidence is limited to seven hours per side, unless a judge orders otherwise (subsections 137.2 (4) and (5)).

An appeal of a motion under section 137.1 must be heard as soon as practicable (section 137.3). Sections 1 and 2 of the Bill amend sections 6 and 19 of the Act to provide that appeals of motions made under section 137.1 shall be heard by the Court of Appeal.

Section 137.4 creates a process by which a person who brought a motion under section 137.1 can have a tribunal proceeding automatically stayed if he or she believes that the tribunal proceeding is related to the same matter of public interest that he or she alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1. The stay remains in effect until the motion under section 137.1 is finally disposed of (subsection 137.4 (3)); however, a judge may, on motion, order that it be lifted earlier if one of the conditions in subsection 137.4 (4) is met.

Section 137.5 specifies that sections 137.1 to 137.4 apply to proceedings commenced on or after the day the Bill received first reading.

The Bill also amends the Libel and Slander Act to add section 25, which states that any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons (section 4 of the Bill).

Finally, the Bill amends section 17.1 of the Statutory Powers Procedure Act to provide that submissions for a costs order in a proceeding must be made in writing, unless a tribunal determines that to do so is likely to cause a party to the proceeding significant prejudice. In addition, three spent subsections in that section are repealed (section 5 of the Bill).

The Bill comes into force on Royal Assent (section 6 of the Bill).