BILL NO. 61
(as introduced)
2nd Session, 58th General Assembly
Nova Scotia
50 Elizabeth II, 2001
Protection of Public Participation Act
Graham Steele
Halifax Fairview
First Reading: May 23, 2001
Second Reading:
Third Reading:
An Act to Encourage Public Participation
and Dissuade Persons from Bringing
or Maintaining Legal Proceedings
or Claims for an Improper Purpose
and to Preserve Access to the Courts
Be it enacted by the Governor and Assembly as follows:
1 This Act may be cited as the Protection of Public Participation Act.
2 (1) In this Act,
(a) "claim" means any claim for relief within a proceeding;
(b) "defendant" means a person against whom a proceeding is brought or maintained;
(c) "government body" means any level of government, and includes
(i) any agency of government, within the meaning of the Auditor General Act,
(ii) any body appointed or established by, or from which advice is requested by, the Government of the Province, and any equivalent body of any other level of government, and
(iii) any local public body within the meaning of the Freedom of Information and Protection of Privacy Act;
(d) "improper purpose" has the meaning set out in subsection (2);
(e) "level of government" includes
(i) the Government of Canada,
(ii) the Government of the Province,
(iii) the government of any other province of Canada, and
(iv) the government of any municipality;
(f) "plaintiff" means a person who initiates or maintains a proceeding against a defendant;
(g) "proceeding" means any action, suit, matter, cause, counterclaim, appeal or originating application that is brought in the Supreme Court, but does not include a prosecution for an offence or a crime;
(h) "public participation" means communication or conduct aimed at influencing public opinion, or promoting or furthering lawful action by the public or by any government body, in relation to an issue of public interest, but does not include communication or conduct
(i) in respect of which an information has been laid or an indictment has been preferred in a prosecution conducted by the Attorney General or the Attorney General of Canada or in which the Attorney General or the Attorney General of Canada intervenes,
(ii) that constitutes a breach of the Human Rights Act or any similar enactment of any other level of government,
(iii) that contravenes any order of any court,
(iv) that causes damage to or destruction of real property or personal property,
(v) that causes physical injury,
(vi) that constitutes trespass to real or personal property, or
(vii) that is otherwise considered by a court to be unlawful or an unwarranted interference by the defendant with the rights or property of a person;
(i) "reasonable costs and expenses", in relation to a proceeding or claim, means costs and expenses that
(i) have been agreed on between the plaintiff and the defendant, or
(ii) where no agreement has been reached, consist of the following:
(A) the amount of legal fees and disbursements that are, pursuant to a taxation of fees and costs by an adjudicator of the Small Claims Court of Nova Scotia after the conclusion of the proceeding or claim, determined to be owing by the defendant to the defendant's lawyers for all matters related to the proceeding or claim, as the case may be, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding or claim, and
(B) any other costs and expenses that the adjudicator conducting the taxation considers to be reasonably incurred by the defendant in relation to the proceeding or claim.
(2) A proceeding or claim is brought or maintained for an improper purpose if
(a) the plaintiff could have no reasonable expectation that the proceeding or claim will succeed at trial; and
(b) a principal purpose for bringing the proceeding or claim is
(i) to dissuade the defendant from engaging in public participation,
(ii) to dissuade other persons from engaging in public participation,
(iii) to divert the defendant's resources from public participation to the proceeding, or
(iv) to penalize the defendant for engaging in public participation.
3 The purpose of this Act is to
(a) encourage public participation, and dissuade persons from bringing or maintaining proceedings or claims for an improper purpose, by providing
(i) an opportunity, at or before the trial of a proceeding, for a defendant to allege that, and for the court to consider whether, the proceeding or a claim within the proceeding is brought or maintained for an improper purpose,
(ii) a means by which a proceeding or claim that is brought or maintained for an improper purpose can be summarily dismissed,
(iii) a means by which persons who are subjected to a proceeding or a claim that is brought or maintained for an improper purpose may obtain reimbursement for all reasonable costs and expenses that they incur as a result,
(iv) a means by which punitive or exemplary damages may be imposed in respect of a proceeding or claim that is brought or maintained for an improper purpose, and
(v) protection from liability for defamation if the defamatory communication or conduct constitutes public participation; and
(b) preserve the right of access to the courts for all proceedings and claims that are not brought or maintained for an improper purpose.
4 Public participation constitutes an occasion of qualified privilege and, for that purpose, the communication or conduct that constitutes the public participation is deemed to be of interest to all persons who, directly or indirectly,
(a) receive the communication; or
(b) witness the conduct.
5 (1) Where a defendant against whom a proceeding is brought or maintained considers that the whole of the proceeding or any claim within the proceeding has been brought or is being maintained for an improper purpose, the defendant may, subject to subsection (2), bring an application for one or more of the following orders:
(a) an order dismissing the proceeding or claim, as the case may be;
(b an order for reasonable costs and expenses;
(c) an order for punitive or exemplary damages against the plaintiff.
(2) Where an application is brought under subsection (1),
(a) the applicant must set, as the date for the hearing of the application, a date that is
(i) not more than sixty days after the date on which the application is brought, and
(ii) not less than one hundred and twenty days before the date scheduled for the trial of the proceeding; and
(b) all further applications, procedures or other steps in the proceeding are, unless the court otherwise orders, suspended until the application has been heard and decided.
(3) Nothing in clause (2)(b) prevents the court from granting an injunction pending a determination of the rights under this Act of the parties to a proceeding.
6 (1) On an application brought by a defendant under subsection 5(1), the defendant may obtain an order under subsection (2) of this Section if the defendant satisfies the court, on a balance of probabilities, that, when viewed on an objective basis,
(a) the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation; and
(b) a principal purpose for which the proceeding or claim was brought or maintained is an improper purpose.
(2) Where, on an application brought by a defendant under subsection 5(1), the defendant satisfies the court under subsection (1) in relation to the proceeding or in relation to a claim within the proceeding,
(a) the defendant may obtain one or both of the following orders:
(i) an order dismissing the proceeding or claim, as the case may be,
(ii) an order that the plaintiff pay all of the reasonable costs and expenses incurred by the defendant in relation to the proceeding or claim, as the case may be, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding or claim; and
(b) the court may, in addition to the orders referred to in clause (a), on its own motion or on the application of the defendant, award punitive or exemplary damages against the plaintiff.
(3) Where, on an application brought by a defendant under subsection 5(1), the defendant is unable to satisfy the court under subsection (1), the defendant may obtain an order under subsection (4) if the defendant satisfies the court that there is a realistic possibility that, when viewed on an objective basis,
(a) the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation; and
(b) a principal purpose for which the proceeding or claim was brought or maintained is an improper purpose.
(4) Where, on an application brought by a defendant under subsection 5(1), the defendant satisfies the court as required in subsection (3) in relation to the proceeding or a claim within the proceeding, the court may make the following orders:
(a) an order, on the terms and conditions that the court considers appropriate, that the plaintiff provide as security an amount that, in the court's opinion, will be sufficient to provide payment to the defendant of the full amounts of the reasonable costs and expenses and punitive or exemplary damages to which the defendant may become entitled under Section 7;
(b) an order that any settlement, discontinuance or abandonment of the proceeding be effected with the approval of the court and on the terms the court considers appropriate.
(5) On an application for the settlement, discontinuance or abandonment of a proceeding or claim in respect of which an order was made under clause (4)(b), the court may, notwithstanding any agreement to the contrary between the defendant and the plaintiff, order the plaintiff to pay all of the reasonable costs and expenses incurred by the defendant in relation to the proceeding or claim, as the case may be, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding or claim.
(6) Where, in a proceeding in which the defendant has obtained an order under subsection (4), the defendant makes an application to dismiss the proceeding for want of prosecution, the defendant may obtain an order under subsection (7) if
(a) the proceeding is dismissed for want of prosecution; and
(b) the plaintiff is unable to satisfy the court on the application that, when viewed on an objective basis,
(i) the communication or conduct in respect of which the proceeding was brought does not constitute public participation, or
(ii) none of the principal purposes for which the proceeding was brought or maintained were improper purposes.
(7) Where, under subsection (6), the defendant is entitled to obtain an order under this subsection, the defendant may obtain an order that the plaintiff pay all of the reasonable costs and expenses incurred by the defendant in relation to the proceeding, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding.
7 (1) A defendant who has obtained an order under subsection 6(4) in respect of a proceeding or claim may, at the trial of the proceeding, obtain one or more of the orders referred to in subsection 6(2) if
(a) the defendant alleges at trial that
(i) the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation, and
(ii) the proceeding or claim was brought or maintained for an improper purpose;
(b) the proceeding or claim is discontinued or abandoned by the plaintiff or is dismissed; and
(c) the plaintiff is unable to satisfy the court at trial that, when viewed on an objective basis,
(i) the communication or conduct in respect of which the proceeding or claim was brought does not constitute public participation, or
(ii) none of the principal purposes for which the proceeding or claim was brought or maintained were improper purposes.
(2) A defendant who has not obtained an order under subsection 6(4) may, at the trial of the proceeding, obtain one or more of the orders referred to in subsection 6(2) if
(a) the defendant gives notice to the plaintiff, at least one hundred and twenty days before the date scheduled for the trial of the proceeding, that the defendant intends at trial to seek an order under this Section in respect of a proceeding or claim;
(b) the defendant satisfies the court at trial that there is a realistic possibility that, when viewed on an objective basis,
(i) the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation, and
(ii) a principal purpose for which the proceeding or claim was brought or maintained is an improper purpose;
(c) the proceeding or claim is discontinued or abandoned by the plaintiff or is dismissed; and
(d) the plaintiff is unable to satisfy the court at trial that, when viewed on an objective basis,
(i) the communication or conduct in respect of which the proceeding or claim was brought does not constitute public participation, or
(ii) none of the principal purposes for which the proceeding or claim was brought or maintained were improper purposes.
8 (1) Without limiting any other rights the parties may have to present evidence and make arguments in an application brought under subsection 5(1) or at a trial under subsection 7(1) or (2), the parties may present evidence and make arguments
(a) as to whether the communication or conduct in relation to which the proceeding was brought constituted public participation;
(b) as to whether the proceeding was brought or is being maintained for an improper purpose.
(2) The parties may present the evidence or make the arguments referred to in clauses (1)(a) and (b) whether or not the evidence or arguments relate to the particulars of the claim or claims raised by the plaintiff.
9 (1) Where a defendant succeeds under subsection 6(7) in respect of a proceeding, the defendant may obtain an order that the reasonable costs and expenses to which the defendant is entitled under the order made under subsection 6(7) be paid to the defendant out of any security provided by the plaintiff under subsection 6(4).
(2) Where a defendant succeeds under subsection 7(1) in respect of the whole of a proceeding, the defendant may obtain an order that the following amounts be paid to the defendant out of any security provided by the plaintiff under subsection 6(4):
(a) the reasonable costs and expenses to which the defendant is entitled under the order made under subsection 7(1); and
(b) any punitive or exemplary damages awarded to the defendant by the court.
(3) Where a defendant succeeds under subsection 7(1) in respect of a claim brought as part of a proceeding, the defendant may obtain an order that the following amounts be paid to the defendant out of any security provided by the plaintiff under subsection 6(4):
(a) whichever of the following the court considers best gives effect to the purpose of this Act:
(ii) the reasonable costs and expenses incurred by the defendant in relation to the proceeding, including all of the reasonable costs and expenses incurred by the defendant in pursuing rights or remedies available under or contemplated by this Act in relation to the proceeding;
(b) any punitive or exemplary damages awarded to the defendant by the court.
(4) After the defendant receives payment of the money to which the defendant is entitled out of any security provided by the plaintiff under subsection 6(4), any portion of that security that is not provided to the defendant under this Section, including any interest that has accrued on that money, must be returned to the plaintiff.
10 Nothing in this Act limits or restricts the rights available to a plaintiff or defendant under any Act or any rule of any court.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2001 Crown in right of Nova Scotia. Created May 23, 2001. Send comments to legc.office@gov.ns.ca.
