A defamation application takes a toll on people. These actions are not easy. There is a very recent decision that provides great information about anti-SLAPP applications, which is a dismissal application brought by a Defendant who has been named in a defamation action on the basis that the case lacks merit. The interesting point about these dismissal applications is that once they are filed, the defamation action is stayed and no further steps may be taken other than an injunction application.
The current case is a “step” or application brought by the Plaintiff to seek production of documents. The defence, of course, argues that this is deemed to be a “next step” and should not be so ordered.
I am going to quote from this decision entirely because it provides an excellent step by step commentary on the process.
As noted, the referenced hearing is an application by the Plaintiff seeking an Order that certain documents are produced by the Defendant, and without said disclosure, the Plaintiff will not be able to purse the action. One of the issues that comes up is when a dismissal application or anti-SLAPP application is filed quickly, it automatically stays an action, preventing the Plaintiff from investigating or seeking the evidence he or she may require. Important note is that the Court has the discretionary authority to order that documents /information be disclosed even if an anti-SLAPP application has been filed.
The Court states:
While I appreciate that the aim of the Act is to provide defendants in SLAPP actions a timely and expedient process to have unmeritorious actions dismissed, the flip side cannot be to deprive a plaintiff with a valid cause of action the ability to proceed. Section 4 places a burden on the plaintiff. An unusually onerous burden of proving not only that they have a case but that the defendants do not. To have to do that in a vacuum would be unjust and contrary to R. 21-1(4).
It is all very interesting and encourage you to review this entire decision. The referenced case is Galloway v. A.B., 2019 BCSC 1417. The Court did use its discretionary authority in this case and ordered that the Defendant disclose various documents, but states “I am of the view that the disclosure that may be ordered on a dismissal application is confined to matters that relate to that application only.”
Anti-SLAPP
[1] The Protection of Public Participation Act, S.B.C. 2019, c. 3 [the Act], was enacted in British Columbia on March 25, 2019 and applies retrospectively to actions commenced on or after May 15, 2018.
[2] The purpose of the Act is to enhance public participation by protecting expression on matters of public interest from defamation litigation which is brought to stop people from talking: Hansard, (February 13, 2019) at 6974. Lawsuits brought to silence or punish one’s critics have come to be known as Strategic Lawsuits Against Public Participation (SLAPP).
[3] Under s. 4 of the Act defendants in defamation proceedings may at an early stage apply to have the claim against them dismissed. Dismissal applications have come to be known as Anti-SLAPP applications. In this ruling I will refer to them as dismissal applications.
[4] Once a dismissal application is filed the defamation action is essentially stayed; no party can take any further steps in the proceeding other than an application for an injunction until the application has been resolved: ss. 5(1) and (2).
[5] Section 9 of the Act provides for the procedure on a dismissal application:
- The application may be brought anytime after an action is commenced: s. 9(1);
- Evidence is by way of affidavit: s. 9(4);
- Applicants and respondents have a right of cross-examination of the affiants on their affidavits for a total of seven hours or longer with leave of the court: s. 9(5); and
- The application must be heard as soon as practicable: s. 9(3).
[6] The right to cross-examine affiants is significant as it is a departure from the usual procedure that cross-examinations are not available by right in applications or petition proceedings. It shows the intention of the drafters to allow parties to challenge opposing affiants in order to prepare for a s. 4 application.
[7] Of further significance is s. 9(1) which incorporates the procedures provided for in the Supreme Court Civil Rules as follows:
Subject to this Act, an application for a dismissal order under section 4 must be made in accordance with the Supreme Court Civil Rules. [Emphasis added.]
[8] Relevant to this application is Rule 22-1(4)(c) which states that on a chambers proceeding, evidence must be given by affidavit, but the court may give directions required for the discovery, inspection or production of a document or copy of that document.
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