BC Court of Appeal clarifies the application of anti-SLAPP legislation where the defendant denies making the allegedly defamatory statements
On September 22, 2023, the British Columbia Court of Appeal upheld the Chambers Judge’s decision to dismiss the appellant’s application to summarily dismiss a defamation action. The Court of Appeal rejected the defendant’s argument that the defamation action was a strategic lawsuit against public participation (SLAPP) pursued to silence him. In doing so, the Court of Appeal clarified the legislation’s analytical framework. This will likely have broad, national implications on proceedings engaging anti-SLAPP legislation.
Background on anti-SLAPP legislation
Strategic lawsuits against public participation, or SLAPP suits, are lawsuits that aim to discourage people and organizations from engaging with matters of public interest. British Columbia, Ontario and Québec have enacted legislation to provide summary proceedings to dismiss SLAPP suits.
In British Columbia, this mechanism is provided in the Protection of Public Participation Act (PPPA).[1] To succeed on an anti-SLAPP application, the defendant must prove that the proceeding arises from an expression they made and that the expression relates to a matter of public interest. If the defendant meets its burden, the burden shifts to the plaintiff to convince the court that there are grounds to believe that the proceeding has substantial merit and the defendant has no valid defence. The plaintiff must also prove that the defendant’s expression causes serious enough harm that the public interest in continuing the proceeding outweighs the public interest in protecting that expression. If the plaintiff cannot meet this burden, the action is dismissed.
Christman v. Lee-Sheriff
In this case, the plaintiff (and respondent on the appeal), Janet Lee-Sheriff, and her husband were shareholders of the plaintiff corporation Golden Predator Mining Corporation (Golden Predator) and held executive positions within the company. Golden Predator is a mining company operating in Yukon that had rights to a gold mine located on First Nations territory.[2] Golden Predator engaged the Yukon Government’s Department of Energy, Mines and Resources (the Department) to re-activate its mining operations.[3] The defendant (and appellant on the appeal), Paul Christman, was the Department’s Chief Mine Engineer and participated in reviewing Golden Predator’s request.[4]
The plaintiffs allege that at the Vancouver Resource Investment Conference in January 2020, Mr. Christman defamed them. Among other things, the plaintiffs claim that Mr. Christman referred to Ms. Lee-Sheriff as a “liar,” accused her of “spreading misinformation,” and asserted “you don’t have licenses to operate.”[5] The plaintiffs claim that after the incident, Golden Predator’s share value dropped.[6]
Ms. Lee-Sheriff and Golden Predator sued Mr. Christman for slander, amongst other things, and sought damages and an injunction prohibiting Mr. Christman from making any further defamatory statements.[7] In response to the lawsuit, Mr. Christman applied for an order under the PPPA dismissing the claim against him.
The Chambers Judge dismissed Mr. Christman’s application, declining to dismiss the action as a SLAPP suit. The Chambers Judge found that Mr. Christman failed to discharge his threshold burden with respect to one of the three impugned expressions because he denied saying it entirely. The Court found that remaining expressions were not protected by the PPPA legislation either, as the public interest would not be served by protecting the expressions at the cost of allowing the lawsuit to proceed.[8]
The appeal: You cannot deny making the statement and rely on the PPPA
On appeal, Mr. Christman submitted that the language of the PPPA only requires the defendant to satisfy the judge that the proceeding arises from an alleged expression.[9] He argued that he did not need to admit making the impugned expression in order to avail himself of the PPPA.
The Court of Appeal upheld the Chambers Judge’s decision.[10] Significantly, it held that without admitting to making the expression, there is no expression to consider, i.e., no public participation to protect.[11] The PPPA seeks to protect parties from actions that attempt to silence them or deter them from participating in public discourse.[12] The Court of Appeal found that Mr. Christman’s argument that he did not make the statement is irreconcilable with the purpose of the legislation.[13]
Implications of the decision
Litigants involved in defamation actions need to be mindful about the implications of bringing anti-SLAPP applications. While these applications can efficiently dismiss SLAPP suits, bringing these applications can preclude defendants from advancing certain defences. The British Columbia Court of Appeal has confirmed that litigants cannot deny making the impugned statements while trying to simultaneously rely on legislation that seeks to protect free expression.
Please reach out to a member of Dentons’ Alternative Dispute Resolution Group if you are considering commencing or defending a defamation lawsuit.
[1] Protection of Public Participation Act, S.B.C. 2019, c. 3 [“PPPA”].
[2] Christman v. Lee-Sheriff, 2023 BCCA 363 at para 11 [“Christman”].
[3] Christman at para 13.
[5] Christman at paras 16-17.
[6] Christman at para 41.
[7] Christman at para 4.
[8] Christman at para 10.
[9] Christman at para 57.
[10] Christman at para 10.
[11] Christman at para 69.
[12] Christman at para 2, citing Hobbs v. Warner, 2021 BCCA 290 at para 6.
[13] Christman at para 70.
