Protection of Public Participation Act, 2014 Meilleur, Hon. Madeleine Attorney General — Bill 83 (40th Parliament, 2nd Session)

Bill 83, 40-2

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Bill 83, Protection of Public Participation Act, 2014

Meilleur, Hon. Madeleine Attorney General

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[40] Bill 83 Original (PDF)

Bill 83 2013

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

Note:

This Act amends or repeals more than one Act. For the legislative history of

these Acts, 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:

Courts of Justice Act

1. Clause

19 (1) (

a) of the Courts of Justice Act is repealed

and the following substituted:

(

a) a

final order of a judge of the Superior Court of Justice that is described in

subsection (1.1) or (1.2), other than an order made under

section 137.1;

2. 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.

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.

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.

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 be limited to one day for each

party.

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 court hearing the motion under

section 137.1 or, if the motion

is under appeal, its appeal.

Statutory Powers Procedure Act

(6) This

section applies despite anything to the contrary

in the Statutory Powers Procedure Act .

Application

to commenced proceedings

137.5 For

greater certainty, sections 137.1 to 137.4 apply in respect of proceedings

commenced before the day

section 2 of the Protection of

Public Participation Act, 2013 came into force.

Libel and Slander Act

3. 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

4. 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

5. This

Act comes into force on a day to be named by proclamation of the Lieutenant

Governor.

Short

title

6. The

short title of this Act is the Protection of Public

Participation Act, 2013 .

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 2 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 (6)) and sets out rules for awards of costs and damages

on the motion to dismiss (subsections (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 (1)); that the

motion must be heard within 60 days (subsection (2)); and that

cross-examination on documentary evidence is limited to one day for each party,

unless a judge orders otherwise (subsections (4) and (5)).

appeal of a motion under

section 137.1 must be heard as soon as practicable

(section 137.3).

Section 1 of the Bill re-enacts clause 19 (1) (

a) of the Act

to provide for appeals of motions made under

section 137.1 to 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 (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 a proceeding even if it

was commenced before the day that

section 2 of the Bill comes into force.

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 3

Document details

Collection	Ontario — Bills
Citation	Bill 83, 40-2
Type	bill
Volume / chapter	p40 s2 bill 83 html
Language	en
Format	html
Source	PROVINCIAL
Identifier	662df1b9016a6b69467c982a447b32ff79464901

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