Bill 52 2015

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

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

Courts of Justice Act

   1.  Subsection6 (1) of theCourts of Justice Act is amended byadding the following clause:

  (d)  an order made under section137.1.

   2.  Section19 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 Actis amended by adding the following sections:

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

Dismissal ofproceeding that limits debate

Purposes

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

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

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

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

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

Definition,"expression"

   (2)  Inthis section,

"expression" meansany 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 ata person or entity.

Orderto dismiss

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

Nodismissal

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

  (a)  thereare grounds to believe that,

           (i)  theproceeding has substantial merit, and

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

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

Nofurther steps in proceeding

   (5)  Once a motion under this section ismade, 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.

Noamendment to pleadings

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

  (a)  inorder to prevent or avoid an order under this section dismissing theproceeding; or

  (b)  ifthe proceeding is dismissed under this section, in order to continue theproceeding.

Costson dismissal

   (7)  If a judge dismisses a proceeding underthis section, the moving party is entitled to costs on the motion and in the proceedingon a full indemnity basis, unless the judge determines that such an award isnot appropriate in the circumstances.

Costsif motion to dismiss denied

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

Damages

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

Proceduralmatters

Commencement

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

Motionto be heard within 60 days

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

Hearingdate to be obtained in advance

   (3)  The moving party shall obtain thehearing date for the motion from the court before notice of the motion isserved.

Limiton cross-examinations

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

Same,extension of time

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

Appealto be heard as soon as practicable

  137.3  Anappeal of an order under section 137.1 shall be heard as soon as practicableafter the appellant perfects the appeal.

Stayof related tribunal proceeding

  137.4  (1)  Ifthe responding party has begun a proceeding before a tribunal, within the meaningof theStatutory Powers Procedure Act, and themoving party believes that the proceeding relates to the same matter of publicinterest that the moving party alleges is the basis of the proceeding that isthe subject of his or her motion under section 137.1, the moving party may filewith the tribunal a copy of the notice of the motion that was filed with thecourt and, on its filing, the tribunal proceeding is deemed to have been stayedby the tribunal.

Notice

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

  (a)  noticeof the stay; and

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

Duration

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

Staymay be lifted

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

  (a)  thestay is causing or would likely cause undue hardship to a party to the tribunalproceeding; or

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

Same

   (5)  A motion under subsection (4) shall bebrought before a judge of the Superior Court of Justice or, if the decisionmade on the motion under section 137.1 is under appeal, a judge of the Court ofAppeal.

Statutory Powers Procedure Act

   (6)  This section applies despite anythingto the contrary in theStatutory Powers Procedure Act.

Application

  137.5  Sections137.1 to 137.4 apply in respect of proceedings commenced on or after the daytheProtection of Public Participation Act, 2015received first reading.

Libel and Slander Act

   4.  TheLibel and Slander Act is amended by adding thefollowing section:

Communications on Public Interest Matters

Applicationof qualified privilege

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

Statutory Powers Procedure Act

   5.  Subsections17.1 (7), (8) and (9) of theStatutory Powers ProcedureActare repealed and the following substituted:

Submissionsmust 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 anauthority referred to in subsection (6), shall be made by way of written orelectronic documents, unless a party satisfies the tribunal that to do so islikely to cause the party significant prejudice.

Commencement and Short Title

Commencement

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

Shorttitle

   7.  Theshort title of this Act is theProtection of PublicParticipation Act, 2015.

EXPLANATORY NOTE

ThisExplanatory Note was written as a reader's aid to Bill 52 and does not formpart of the law.  Bill 52 has been enacted as Chapter 23 of the Statutes ofOntario,2015.

The Bill amends theCourts of Justice Act to add sections 137.1 to 137.5,which create a process for getting a proceeding against a person dismissed ifit is shown that the proceeding arises from an expression made by the personthat relates to a matter of public interest (section 3 of the Bill). Subsection137.1 (1) sets out the purposes of the new sections.

Under subsection137.1 (3), a person against whom a proceeding is brought may bring a motion toget the proceeding dismissed on the basis that the proceeding arises from anexpression 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 dismissthe proceeding unless the party who brought the proceeding satisfies the judgethat the proceeding should not be dismissed because the conditions in subsection137.1 (4) are met. These conditions include that there are grounds to believethat the proceeding has substantial merit and that the person against whom theproceeding was brought has no valid defence in the proceeding. Once a motionunder section 137.1 is brought, no further steps may be taken in the proceedinguntil the motion is finally disposed of (subsection 137.1 (5)). Section 137.1also sets out restrictions on amending pleadings in the proceeding (subsection137.1 (6)) and sets out rules for awards of costs and damages on the motion todismiss (subsections 137.1 (7), (8) and (9)).

Section 137.2 dealswith 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 proceedingto which it relates has commenced (subsection 137.2 (1)); that the motion mustbe heard within 60 days (subsection 137.2 (2)); and that cross-examination ondocumentary evidence is limited to seven hours per side, unless a judge ordersotherwise (subsections 137.2 (4) and (5)).

An appeal of a motionunder 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 thatappeals of motions made under section 137.1 shall be heard by the Court ofAppeal.

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

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

The Bill also amendstheLibel and Slander Act to add section 25, whichstates that any qualified privilege that applies in respect of an oral orwritten communication on a matter of public interest between two or morepersons who have a direct interest in the matter applies regardless of whetherthe communication is witnessed or reported on by media representatives or otherpersons (section 4 of the Bill).

Finally, the Billamends section 17.1 of theStatutory Powers Procedure Actto provide that submissions for a costs order in a proceeding must be made inwriting, unless a tribunal determines that to do so is likely to cause a partyto the proceeding significant prejudice. In addition, three spent subsectionsin that section are repealed (section 5 of the Bill).

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

Bill 52 2014

AnAct to amend the Courts of Justice Act, the Libel and Slander Act and theStatutory Powers Procedure Act in order to protect expression on matters ofpublic interest

HerMajesty, by and with the advice and consent of the Legislative Assembly of theProvince of Ontario, enacts as follows:

Courts of Justice Act

   1.  Subsection6 (1) of theCourts of Justice Act is amended byadding the following clause:

  (d)  anorder made under section 137.1.

   2.  Section19 of the Act is amended by adding the following subsection:

Same

   (1.0.1)  Clauses (1) (a) and (b) do notapply to orders made under section 137.1.

   3.  TheActis amended by adding the following sections:

Prevention ofProceedings that Limit Freedom of Expression on Matters of Public Interest (GagProceedings)

Dismissalof proceeding that limits debate

Purposes

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

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

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

   (c)  todiscourage the use of litigation as a means of unduly limiting expression onmatters of public interest; and

  (d)  toreduce the risk that participation by the public in debates on matters ofpublic 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 ornon-verbally, whether it is made publicly or privately, and whether or not itis directed at a person or entity.

Orderto dismiss

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

Nodismissal

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

  (a)  thereare grounds to believe that,

           (i)  theproceeding has substantial merit, and

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

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

Nofurther steps in proceeding

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

Noamendment to pleadings

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

  (a)  inorder to prevent or avoid an order under this section dismissing theproceeding; or

  (b)  ifthe proceeding is dismissed under this section, in order to continue theproceeding.

Costson dismissal

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

Costsif motion to dismiss denied

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

Damages

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

Proceduralmatters

Commencement

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

Motionto be heard within 60 days

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

Hearingdate to be obtained in advance

   (3)  The moving party shall obtain thehearing date for the motion from the court before notice of the motion isserved.

Limiton cross-examinations

   (4)  Subject to subsection (5),cross-examination on any documentary evidence filed by the parties shall notexceed a total of seven hours for all plaintiffs in the proceeding and sevenhours for all defendants.

Same,extension of time

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

Appealto be heard as soon as practicable

  137.3  Anappeal of an order under section 137.1 shall be heard as soon as practicableafter the appellant perfects the appeal.

Stayof related tribunal proceeding

  137.4  (1)  Ifthe responding party has begun a proceeding before a tribunal, within themeaning of theStatutory Powers Procedure Act, andthe moving party believes that the proceeding relates to the same matter ofpublic interest that the moving party alleges is the basis of the proceedingthat is the subject of his or her motion under section 137.1, the moving partymay file with the tribunal a copy of the notice of the motion that was filedwith the court and, on its filing, the tribunal proceeding is deemed to havebeen stayed by the tribunal.

Notice

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

  (a)  noticeof the stay; and

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

Duration

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

Staymay be lifted

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

  (a)  thestay is causing or would likely cause undue hardship to a party to the tribunalproceeding; or

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

Same

   (5)  A motion under subsection (4) shall bebrought before a judge of the Superior Court of Justice or, if the decisionmade on the motion under section 137.1 is under appeal, a judge of the Court ofAppeal.

Statutory Powers Procedure Act

   (6)  This section applies despite anythingto the contrary in theStatutory Powers Procedure Act.

Application

  137.5  Sections137.1 to 137.4 apply in respect of proceedings commenced on or after the daytheProtection of Public Participation Act, 2014received first reading.

Libel and Slander Act

   4.  TheLibel and Slander Act is amended by adding thefollowing section:

Communications onPublic Interest Matters

Applicationof qualified privilege

  25.  Anyqualified privilege that applies in respect of an oral or written communicationon a matter of public interest between two or more persons who have a directinterest in the matter applies regardless of whether the communication iswitnessed or reported on by media representatives or other persons.

Statutory PowersProcedure Act

   5.  Subsections17.1 (7), (8) and (9) of theStatutory Powers ProcedureActare repealed and the following substituted:

Submissionsmust 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 anauthority referred to in subsection (6), shall be made by way of written orelectronic documents, unless a party satisfies the tribunal that to do so islikely to cause the party significant prejudice.

Commencement and ShortTitle

Commencement

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

Shorttitle

   7.  Theshort title of this Act is theProtection of PublicParticipation Act, 2014.

EXPLANATORYNOTE

TheBill amends theCourts of Justice Act to addsections 137.1 to 137.5, which create a process for getting a proceedingagainst a person dismissed if it is shown that the proceeding arises from anexpression 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 newsections.

Undersubsection 137.1 (3), a person against whom a proceeding is brought may bring amotion to get the proceeding dismissed on the basis that the proceeding arisesfrom an expression made by the person that relates to a matter of publicinterest (subsection 137.1 (2) defines "expression" for the purposes of section137.1). If the judge hearing the motion is satisfied of this, he or she mustdismiss the proceeding unless the party who brought the proceeding satisfiesthe judge that the proceeding should not be dismissed because the conditions insubsection 137.1 (4) are met. These conditions include that there are groundsto believe that the proceeding has substantial merit and that the personagainst 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 inthe proceeding until the motion is finally disposed of (subsection 137.1 (5)).Section 137.1 also sets out restrictions on amending pleadings in theproceeding (subsection 137.1 (6)) and sets out rules for awards of costs anddamages on the motion to dismiss (subsections 137.1 (7), (8) and (9)).

Section137.2 deals with various procedural aspects of the motion to dismiss under section137.1. These include that the motion may be brought at any time after theproceeding to which it relates has commenced (subsection 137.2 (1)); that themotion must be heard within 60 days (subsection 137.2 (2)); and thatcross-examination on documentary evidence is limited to seven hours per side,unless a judge orders otherwise (subsections 137.2 (4) and (5)).

Anappeal 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 theAct to provide that appeals of motions made under section 137.1 shall be heardby the Court of Appeal.

Section137.4 creates a process by which a person who brought a motion under section137.1 can have a tribunal proceeding automatically stayed if he or she believesthat the tribunal proceeding is related to the same matter of public interestthat he or she alleges is the basis of the proceeding that is the subject ofhis or her motion under section 137.1. The stay remains in effect until the motionunder section 137.1 is finally disposed of (subsection 137.4 (3)); however, ajudge may, on motion, order that it be lifted earlier if one of the conditionsin subsection 137.4 (4) is met.

Section137.5 specifies that sections 137.1 to 137.4 apply to proceedings commenced onor after the day the Bill received first reading.

TheBill also amends theLibel and Slander Act to addsection 25, which states that any qualified privilege that applies in respectof an oral or written communication on a matter of public interest between twoor more persons who have a direct interest in the matter applies regardless ofwhether the communication is witnessed or reported on by media representativesor other persons (section 4 of the Bill).

Finally,the Bill amends section 17.1 of theStatutory PowersProcedure Act to provide that submissions for a costs order in aproceeding must be made in writing, unless a tribunal determines that to do sois 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).

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