An Introduction to British Columbia’s Anti-SLAPP Legislation
Updated: Jun 10
Written by: Alfonso Chen
1. What is the relevant legislation?
There is significant value in many expressions made on matters of public interest. However, such expressions, even if innocently made, can sometimes defame others in society, triggering a defamation lawsuit. Provinces in Canada, such as Ontario, have had legislation for years inviting courts to dismiss lawsuits involving certain expressions on matters of public interest to deter “strategic lawsuits against public participation”, also known as SLAPP. British Columbia did not have such anti-SLAPP legislation until recently.
The Protection of Public Participation Act, S.B.C. 2019, C. 3 (the “PPPA”) came into force in British Columbia on March 25, 2019, becoming British Columbia’s anti-SLAPP legislation that provides defendants involved in certain lawsuits a mechanism to have the action against them dismissed.
Madam Justice Donegan reviewed Ontario case law and readings of the bill to enact the PPPA in the Legislative Assembly to set out in Hobbs v Warner, 2019 BCSC 2196 (“Hobbs”) at paras 20-27 that the purposes of the PPPA are 1) to distinguish between claims arising from an expression that relates to a matter of public interest and other claims, and 2) to provide for the early and inexpensive dismissal of claims based on expressions relating to matters of public interest, either because those claims lack sufficient merit to proceed or because the public interest is, on balance, not served by allowing the action to proceed to an adjudication on the full merits.
Please note that this article does not constitute legal advice and that it is imperative that you discuss your particular case with a lawyer to have the lawyer advise you properly.
2. The Application to Dismiss
Section 4 of the PPPA provides the mechanism for the application to dismiss:
(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that
(a) the proceeding arises from an expression made by the applicant, and
(b) the expression relates to a matter of public interest.
(2) If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1), the court must make a dismissal order unless the respondent satisfies the court that
(a) there are grounds to believe that
(i) the proceeding has substantial merit, and
(ii) the applicant has no valid defence in the proceeding, and
(b) the harm likely to have been or to be suffered by the respondent as a result of the applicant's expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.
ThePublic Interest Threshold Hurdle
Section 4 first “requires a defendant to clear a “threshold hurdle” and demonstrate that the litigation arises out of his or her expression on a matter relating to the public interest: s. 4(1)”: Hobbs at para 11. Expression is defined broadly in s. 1 of the PPPA to be “any communication, whether it is made verbally or non-verbally, publicly or privately, and whether it is directed or not directed at a person or entity”. Although public interest is not defined in the PPPA, the threshold can be guided by the discussion of “public interest” in Grant v Torstar Corp., 2009 SCC 61, which provides in para 65 that “public interest… does not take into account the merits or manner of the pression nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those