Lawsuits brought for an improper purpose to silence expression and financially punish critics are known strategic lawsuits against public participation (also referred to as SLAPP). The Protection of Public Participation Act (“PPPA”) came into force in British Columbia recently. The PPPA is BC’s anti-SLAPP legislation. Its purpose is to enhance public participation on important public issues. It protects British Columbians from being sued (such as for defamation) for expressing their views on matters of public interest. The PPPA provides a complete defence to a defamation claim if it is successful.  An individual who is sued for defamation for expressing their views can apply at an early stage to have the claim dismissed on this basis. This type of dismissal action is known as an anti-SLAPP application.

In order to successfully rely on the PPPA, there is a 2 stage process.

The first stage requires the defendant/applicant (who is being sued for defamation) to persuade the court that the alleged defaming statement was an expression relating to a matter of public interest.

The second stage requires the plaintiff/respondent (who is suing the defendant for defamation) to meet 3 separate requirements:

  1. There are grounds to believe that the defamation claim has substantial merit;
  2. There are grounds to believe that the defendant who is being sued for defamation has no valid defence; and
  3. That the harm suffered, or to be suffered, by the plaintiff/respondent from the defamation is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.

In Cheema v. Young 2021 BCSC 461, the defendant was sued for defamation and brought an application under the PPPA for dismissal of this defamation claim against him.  The defendant had a strong interest in Surrey politics.  He testified that he was “vocal about matters of public interest in Surrey” and motivated to “ensure good governance is maintained at all levels of government”.  The plaintiff was also active in the Surrey community and in Surrey politics.  Both supported Doug McCallum, the Surrey mayoral candidate, in the municipal election.  Both were also involved and interested in Mr. McCallum’s election platform which included the creation of a Surrey police department.  After Mr. McCallum was voted in as mayor, several meetings took place regarding the police transition process.  The defendant tweeted numerous times criticizing this police transition process directed at the plaintiff and his role in the process.  The plaintiff then sued in defamation relating to these tweets.

In relation to the first stage of the test, the trial judge found that the tweets constituted an “expression” as defined in the PPPA.  When examining this “expression”, the trial judge asked the fundamental question – what was the expression really about?  It was accepted that some of the tweets about the transition to a local police service and the interpretation of that transition were subjects of public interest to the citizens of Surrey.  However, the tweets about the plaintiff specifically were not found to have related to those issues of public interest.  In particular, the trial judge concluded that “gratuitously adding comments about Mr. Cheema [plaintiff], suggesting improper influence and bullying of Mayor McCallum and the council, abuse of power, and financial malfeasance by an unelected person, does not cloak the comments with the protection of public discourse on those matters. Mr. Young’s expression does not relate to the public interest issues that he identifies in his notice of application.

The trial judge concluded that the first stage of the test was not satisfied and the dismissal application was dismissed allowing the defamation claim to continue.  In dismissing the claim, the trial judge stated:

[159]     For the reasons given, Mr. Young’s Statements do not stand on equal footing with the type of expression designed to generate fruitful debate and public participation in community affairs. The appropriate balance in this case, between freedom of expression and the protection of reputation, is to allow Mr. Cheema’s actions to proceed and allow Mr. Cheema an opportunity to establish that he is not the person Mr. Young wrote about.

[160]     In assessing what is really going on in this case, I conclude that this is not a case in which Mr. Cheema has sued strategically to silence Mr. Young over a matter of public interest. It is a case in which Mr. Cheema is attempting to remedy what he says is legitimate harm suffered as a result of the Statements.

[161]     In the context of the record before me, and the stage of the proceedings, I am satisfied that Mr. Cheema has established, on a balance of probabilities, that the harm he has suffered or is likely to suffer as a result of Mr. Young’s expression is sufficiently serious that the public interest in permitting his defamation action to continue outweighs the public interest in protecting Mr. Young’s expression.

To read more about this, please see the Vancouver Sun article on this defamation case which led to this PPPA claim.

We offer legal representation to individuals and organizations who are being sued for expressing free speech on matters of public interest. Contact us for a free initial consultation to learn more about protecting your rights.

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