Copyright (

c) Queen's Printer,

Victoria, British Columbia, Canada

License

Disclaimer

2001 Legislative Session: 5th Session, 36th

Parliament

FOR REPORT

The following electronic version is for

informational purposes only.

The printed version remains the official

version.

Certified correct as amended in Committee of the Whole on the 5th

day of April, 2001

Ian D. Izard, Law Clerk

HONOURABLE GRAEME BOWBRICK

ATTORNEY GENERAL AND MINISTER

RESPONSIBLE FOR

HUMAN RIGHTS

BILL 10 – 2001

PROTECTION OF PUBLIC PARTICIPATION ACT

Contents

Section

Definitions

Purposes of this Act

Defamation

Application for

summary dismissal

Orders available to defendant

Onus on plaintiff at trial

Court may hear any evidence and argument

Disposition of security

Relief under this Act is in addition to other available relief

Offence Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly

of the Province of British Columbia, enacts as follows:

Definitions

(1) In this Act:

"claim" means any claim for relief within a

proceeding;

"defendant" means a person against whom a

proceeding is brought or maintained;

"government body" means any level of government,

and includes

(

a) any government body, within the meaning of the

Financial Administration 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 local government body within the meaning of the

Freedom of Information and Protection of Privacy Act ;

"improper purpose" has the meaning set out in

subsection (2);

"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;

"plaintiff" means a person who initiates or

maintains a proceeding against a defendant;

"proceeding" means any action, suit, matter, cause,

counterclaim, appeal or originating application that is brought in the Supreme

Court or the Provincial Court, but does not include a prosecution for an offence

or a crime;

"public participation" includes

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;

"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, consist of the

following:

(

i) the amount of legal fees and disbursements that are,

in a review under

section 70 of the Legal Profession Act,

determined to be owing by the defendant to the defendant's lawyers for all

matters related 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;

(

i) the amount of legal fees and disbursements that are, in a review conducted under

section 70 of the Legal Profession Act after the conclusion of the

proceeding, determined to be owing by the defendant to the defendant’s lawyers

for all matters related 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 for the purposes of the review under

this subparagraph, the plaintiff is deemed to be, and to have standing to appear

at the review as, a person charged within the meaning of the Legal

Profession Act;

(ii) any other costs and expenses that the registrar

conducting the review considers to be reasonably incurred by the defendant in

relation to the proceeding or claim.

(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 at trial, 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 of a

proceeding, for a defendant to allege that, and for the court 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 who are subjected to 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 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

(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:

(

a) to dismiss the proceeding or claim, as the case may

be;

(

b) for reasonable costs and expenses;

(

c) for punitive or exemplary damages against the

plaintiff.

(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 of the proceeding, and

(

b) all further applications, procedures or other steps in

the proceeding are, unless the court otherwise orders, suspended until the

application has been heard and decided.

(3) Nothing in subsection (2) (

b) prevents the court from

granting an injunction pending a determination of the rights under this Act of

the parties to a proceeding.

Orders available to defendant

(1) On an application brought by a defendant

under

section 4 (1), the defendant may obtain an order under subsection (2) of

this

section if the defendant satisfies the court, 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.

(2) If, on an application brought by a defendant under

section 4 (1), the defendant satisfies the court 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 may, in addition to the orders referred to

in paragraph (a), on its own motion or on the application of the defendant,

award punitive or exemplary damages against the plaintiff.

(3) If, on an application brought by a defendant under

section 4 (1), the defendant is unable to satisfy the court under subsection

(1) of this section, the defendant may obtain an order under subsection (4) if the

defendant satisfies the court 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.

(4) If, on an application brought by a defendant under

section 4 (1), the defendant satisfies the court as required in subsection (3)

of this

section in relation to the proceeding or a claim within the proceeding,

the court may make the following orders:

considers appropriate, that the plaintiff provide as security an amount that, in

the court'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

section 6;

(

b) an order that any settlement, discontinuance or

abandonment of the proceeding be effected with the approval of the court and on

the terms the court considers appropriate.

(5) On an application for the settlement, discontinuance

or abandonment of a proceeding or claim in respect of which an order was made

under subsection (4) (b), the court 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.

(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) of this

section if

(

a) the proceeding is dismissed for want of prosecution,

and

(

b) the plaintiff is unable to satisfy the court 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.

(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

(1) A defendant who has obtained an order under

section 5 (4) in respect of a proceeding or claim may, at the trial of the

proceeding, obtain one or more of the orders referred to in

section 5 (2) if

(

a) the defendant alleges at trial 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

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.

(2) A defendant who has not obtained an order under

section 5 (4) may, at the trial of the proceeding, obtain one or more of the

orders referred to in

section 5 (2) if

(

a) the defendant gives notice to the plaintiff, at least

120 days before the date scheduled for the trial of the proceeding, that the

defendant intends at trial to seek an order under this

section in respect of a

proceeding or claim,

(

b) the defendant satisfies the court at trial 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

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 may hear any evidence and argument

(1) Without limiting any other rights the parties

may have to present evidence and make arguments in an application brought under

section 4 (1) or at a trial under

section 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;

(

b) as to whether the proceeding was brought or is being

maintained for an improper purpose.

(2) The parties may present the evidence or make the

arguments referred to in subsection (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

(1) If a defendant succeeds under

section 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

section 5 (7) be paid to the defendant out of any security provided

by the plaintiff under

section 5 (4).

(2) If a defendant succeeds under

section 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

section 5 (4):

(

a) the reasonable costs and expenses to which the

defendant is entitled under the order made under

section 6 (1);

(

b) any punitive or exemplary damages awarded to the

defendant by the court.

(3) If a defendant succeeds under

section 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

section 5 (4):

(

a) whichever of the following the court considers best

gives effect to the purposes of this Act:

(

i) the proportion of the reasonable costs and expenses

referred to in subparagraph (ii) of this paragraph 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;

(

b) any punitive or exemplary damages awarded to the

defendant by the court.

(4) After the defendant receives payment of the money to

which the defendant is entitled out of any security provided by the plaintiff

under

section 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 is 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.

Offence Act

Section 5 of the Offence Act does not

apply to this Act.

Copyright © 2001:

Queen's Printer, Victoria, British Columbia, Canada