Be careful who you SLAPP: Defamation lawsuits by public figures aren't just anti-democratic, they can be costly
An explainer on B.C.'s anti-SLAPP legislation and why those with hurt feelings should tread lightly trying to stifle free expression
In March 2019, the provincial government enacted the Protection of Public Participation Act, a so-called piece of anti-SLAPP legislation to curb lawsuits aimed to silence critics, shut down freedom of expression and the sharing of information that is in the public interest.
Similar anti-SLAPP legislation – Strategic Lawsuits Against Public Participation – are also in place in Ontario and Quebec.
When former Chilliwack School Board trustee Barry Neufeld filed a lawsuit against former BCTF president Glen Hansman for defamation after Hansman called out Neufeld's repeated homophobic comments, Hansman filed to have the case dismissed under the PPPA. In November 2019, a judge sided with Hansman and dismissed the lawsuit finding the interest in public debate outweighed the interest in the lawsuit. (The BC Court of Appeal actually overturned that decision but then the Supreme Court of Canada reinstated it.)
And while the PPPA allows for the dismissal of lawsuits aimed to stifle freedom of expression, section 7 of the PPPA expands the options available to the court regarding costs connected to dismissal applications brought under the act. It means that those found violating the PPPA with lawsuits can be held liable for full indemnity costs, which means everything: all the fees, expenditures and compensation from the litigation.
A key and recent precedent regarding section of the PPPA comes from a 2023 decision that dealt with mid-pandemic political strife in Vancouver.
Mawhinney v. Stewart
On Jan. 28, 2021, then Vancouver mayor Kennedy Stewart issued a news release in response to a Non-Partisan Association (NPA) release a day prior, which itself was in response to media reports about how the Vancouver political party was veering so far to the right as to be connected to alt-right movements, MAGA, even white power.
The Jan. 27 NPA release claimed that Stewart was involved in a smear campaign against the NPA and it's board members to “distract from the poor governance of the City of Vancouver under Mayor Kennedy Stewart and his progressive allies.”
Excerpts from Stewart's news release called out the NPA for allowing hate to infect the party: “Continuing media reports about the extreme views of Non-Partisan Association board members, including open support for hate groups, are deeply troubling and must be fully denounced and publicly condemned by NPA leaders.
“Vancouver is one of the most diverse cities in the world and it is that diversity that makes us strong. When one group is singled out and attacked, it is an attack on our entire city.”
Kennedy's missive went on to describe the alt-right extremism and openly racist politics that were taking hold around the world, which was true in conjunction with conspiracy theories and anti-science rhetoric during the pandemic.
“NPA leaders have so far failed to stop hate spreading within their party.... These extremely disturbing developments cannot be met with silence and must be fully condemned by all of us, including NPA members and leaders.”
In response, the NPA board members filed a defamation lawsuit against Stewart. One board member lost their job after the Stewart press release, but the BC Supreme Court justice found that harm from that among other minor ones was not enough to outweigh the public interest in protecting free expression.
Justice W. A. Baker dismissed the lawsuit on July 20, 2022.
On March 20, 2023, Justice Baker then awarded full indemnity costs to Stewart under section 7 of the PPPA. The PPPA actually says that full indemnity costs should almost always be awarded in such a dismissal.
“Under British Columbia’s Supreme Court Civil Rules, the court is not authorized to make full indemnity costs awards,” according to an article about the case from Canadian law firm BLG. “However, section 7 of the PPPA states that if the court makes a dismissal order, the successful defendant is entitled to costs on a full indemnity basis unless the court considers that assessment inappropriate in the circumstances.”
What is essential to note in all of this for would-be filers of lawsuits, is that even if the court accepts that there was defamation from some impugned words, the lawsuit could still be considered a violation of the PPPA if the court finds that the public interest outweighs the harm from the defamation.
And if so, you're going to pay.
“This case serves as a warning for would-be plaintiffs in actions designed to silence one’s critics,” the BLG article explains. “Even if the contemplated claim has substantial merit, the action may be dismissed at an early stage, and if it is, a significant adverse costs award will likely be made.”
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Paul J. Henderson
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