More than a decade ago, the Liberal government of the day introduced the Protection of Public Participation Act. The law, which followed similar ones by other provinces, allowed courts to dismiss legal actions if defendants could prove to the court’s satisfaction that lawsuits were being pursued maliciously to stifle free and fair debate in matters of public interest. So-called strategic litigation against public participation, or SLAPP lawsuits, were seen as a growing problem in Ontario, albeit a relatively recent one. It took a while for the law to be passed by the legislature — the 2014 election killed the first attempt, and a second bill didn’t receive royal assent until November 2015.
This week, the Supreme Court of Canada declined to hear two appeals of cases involving Ontario’s anti-SLAPP law, leaving in place decisions by the Ontario Court of Appeal that show the law is having its desired effects: people (in this case, municipal politicians) can engage in robust public debates without having to fear lengthy and costly defamation actions from people with deep pockets.
The first case involves Toronto Centre MPP Kristyn Wong-Tam, although it predates their time as a provincial politician. Wong-Tam and several other local officials (one other councillor and several school-board trustees) were served papers in 2021 by former MP and newspaper publisher Joe Volpe. Volpe had written a series of columns attacking the Toronto Catholic District School Board for being, in his opinion, insufficiently strict in its adherence to Catholic doctrine, specifically relating to the accommodation of LGBTQ students. Wong-Tam and other local leaders criticized Volpe and threatened to pull the city’s advertising from his newspaper (a threat that was not acted upon, in the end).
In 2022, an Ontario court sided with Volpe’s critics and agreed that his case was an example of a SLAPP lawsuit. Justice Benjamin Glustein wrote that “the present case is an attempt by the plaintiffs to chill speech of elected officials who choose to speak up, in the interests of their constituents, against what they believe are homophobic, transphobic, and anti-LGBTQ2S+ comments … To permit such a claim to proceed would have a chilling effect on public debate, allowing councillors and trustees to be sued for expressions, even if defamatory, which cause limited or no damage in the face of overwhelming public interest.” Glustein ordered Volpe to pay hundreds of thousands of dollars in costs to his critics, for good measure.
Volpe was no more successful on appeal; in a unanimous opinion, Ontario’s highest court found that “this action was misconceived. The backdrop to it is an important political debate that must be permitted to run … That this action should have been stopped with [an anti-SLAPP] motion was not a close call.” This is as close as Ontario jurists get to invoking the “I award you no points, and may God have mercy on your soul” scene from Billy Madison.
The second case involves Markham city councillor Karen Rea, who was sued for defamation by developer Christopher Zeppa. It is slightly more complex: Rea alleged that Zeppa threatened her shortly after her re-election in 2018 during an incident in a bar, and she reported the threat to police. Zeppa responded by suing Rea, arguing that the police report was defamatory. Rea was initially unsuccessful in having the case tossed as a SLAPP lawsuit, but the Court of Appeal reversed that decision and last year found that the relevant sections of the Protection of Public Participation Act applied in this case. While the trial judge had worried that allowing Rea’s motion would set the bar for anti-SLAPP motions too low — and thus shut down valid defamation actions as an unintended consequence — the Court of Appeal decision found that there’s an obvious and pressing public interest in citizens feeling free to file valid, bona fide police reports and that the law should protect that interest.
With the Supreme Court declining this week to hear appeals of either of these cases, it’s worth reflecting on how the PPPA has been used in the past decade or so. I covered the bill when it was first introduced, and, at the time, the people who were among its loudest supporters were environmental organizations, particularly Greenpeace, which had been the target of a years-long campaign by forestry company Resolute FP. But as this week’s news shows, the ensuing years have seen the law invoked far beyond cases of deep-pocketed resource companies and their environmental antagonists. Not everyone who has invoked it has been successful, and serious defamation cases still do proceed in the province’s courts.
That is to say, the law is working more or less as it was intended to, with a minimum of obvious unintended consequences. In a political environment where it can sometimes feel like substantial reforms are nearly impossible or that governments can’t actually address real problems in the world, the PPPA is a notable counter-example. It took time, but the government saw a real problem, got substantial expert opinion, and implemented a solution — that solution has endured for a decade now. Not all problems governments face have neat solutions like this, but it’s worth recognizing them when we can.
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