B.C.’s Anti-SLAPP Legislation Put to the Test

In 2019, the British Columbia legislature unanimously passed legislation to protect individuals and groups against lawsuits that are strategically designed to silence or deter public criticism and advocacy.[1] The Protection of Public Participation Act provides a mechanism for the Supreme Court of British Columbia to screen out unmeritorious defamation claims before they proceed to trial.[2] An earlier version of the Act was introduced in 2001 and repealed shortly thereafter following a change in government.

In a decision released on 17 March 2021, the Court refused to dismiss Bob Cheema’s defamation claim against Brian Young.[3] Mr. Young, who is a vigilant observer of political matters in the City of Surrey, uses his Twitter account to share his views and observations. In 2019, he published a series of Tweets castigating Mr. Cheema and alleging, among other things, that he was interfering with Surrey’s local government. Mr. Cheema commenced his action after Mr. Young refused to retract his statements and issue a public apology. Mr. Young brought his application under the Protection of Public Participation Act on the eve of his examination for discovery.

His application provided the first opportunity for the Supreme Court of British Columbia to apply the Act following recent decisions by the Supreme Court of Canada interpreting similar legislation in Ontario.[4]

The Supreme Court of Canada’s decisions provide an analytical framework to assess the procedure mandated by the Act. Essentially, the Court’s task is to balance the plaintiff’s right to protect his or her reputation against the defendant’s right to free speech and the public’s interest in rigorous debate on matters of public interest. An application under the Act does not require an adjudication of the merits of the claim. Rather, the Court is required to determine whether the defendant’s expression relates to a matter of public interest and if so, if there are “grounds to believe” that the plaintiff’s claim has substantial merit and that the pleaded defences are not valid. Part of the analysis mandated by the Act is a determination whether the harm suffered by the plaintiff outweighs the public interest in protecting the defendant’s expression.

Mr. Young’s application failed on every branch of the test. He was unable to satisfy the Court that his Tweets related to a matter of public interest because they amounted to a veiled effort to target Mr. Cheema who is not a public figure. Mr. Cheema satisfied the Court that there is a basis to believe his claim has substantial merit because the Tweets meet the threshold test for being defamatory. Mr. Young’s reliance on the defences of justification, qualified privilege, and fair comment was found wanting. Madam Justice Heather MacNaughton accepted Mr. Cheema’s evidence about the personal, social, and physical impacts of the Tweets. She found that the statements do not stand on equal footing with the type of expression designed to generate fruitful debate and public participation in community affairs.

We are counsel for Mr. Cheema. The Court’s decision clears the path for his claim to proceed to trial.

_{[1] Strategic lawsuits against public participation, or SLAPP’s, are lawsuits designed to deter public debate or advocacy on matters of public interest through intimidation or exhaustion of a defendant’s financial resources.}

_{[2] S.B.C. 2019, c. 3.}

_{[3] Cheema v. Young, 2021 BCSC 461.}

_{[4] 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22; Bent v. Platnick, 2020 SCC 23.}