BILL 14

Public Participation Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1(1)             The following definitions apply in this Act.

“action” means a civil proceeding commenced by notice of action, or in such other manner as is prescribed by the Rules of Court made under the Judicature Act. (ac-tion)

“expression” means any communication or conduct, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

 (s’exprimer)

“improper purpose” has the meaning set out in subsection (2).

 (fin illégitime)

1(2)             For the purposes of subsection 5(7), an action is brought or maintained for an improper purpose if

(a)          the plaintiff could have no reasonable expectation that the action will succeed at trial, or

(b)          the principal purpose for bringing the action is

(i)      to dissuade the defendant from exercising the privilege described in subsection 3(1) or making an expression that relates to a matter of public interest,

(ii)     to dissuade other persons from exercising the privilege described in subsection 3(1) or making an expression that relates to a matter of public interest,

(iii)   to divert the defendant’s resources from exercising the privilege described in subsection 3(1) or making an expression that relates to a matter of public interest to the action, or

(iv)    to penalize the defendant for exercising the privilege described in subsection 3(1) or making an expression that relates to a matter of public interest.

Purposes of Act

2                  The purposes of this Act are to

(a)          encourage individuals to express themselves on matters of public interest;

(b)          promote broad participation in debates on matters of public interest;

(c)          discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d)          reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Protection of parliamentary privilege of freedom of speech

3(1)             Any person participating in a government process shall hold, enjoy and exercise the same privileges and immunities of and for freedom of speech as those provided to the Legislative Assembly of New Brunswick, and the committees and members thereof respectively, in subsection 2(1) of the Legislative Assembly Act.

3(2)             Without limiting the generality of subsection (1), “participating in a government process” includes:

(a)          any written or oral statement or writing made before a legislative, executive, or Ministerial committee, hearing, meeting, or any other official proceeding authorized by law, or

(b)          any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or Ministerial committee, hearing, meeting, or any other official proceeding authorized by law.

Protection of freedom of expression in matters of public interest

4                  An expression made by a person that relates to a matter of public interest constitutes an occasion of qualified privilege and, for that purpose, the communication or conduct that constitutes the expression that relates to a matter of public interest is deemed to be of interest to all persons who, directly or indirectly,

(a)          receive the communication, or

(b)          witness the conduct.

Order to dismiss

5(1)             On motion by a person against whom an action is brought, a judge shall, subject to subsection (2), dismiss the action against the person if the person satisfies the judge that the action arises from

(a)          the exercise by the person of the privilege described in subsection 3(1), or

(b)          an expression made by the person that relates to a matter of public interest.

5(2)             A judge shall not dismiss an action under subsection (1) if the responding party satisfies the judge that:

(a)          there are grounds to believe that:

(i)      the action is not frivolous or vexatious, or

(ii)     the moving party has no valid defence in the action; and

(b)          the harm likely to be or have been suffered by the responding party as a result of the moving party’s exercise of privilege or expression is sufficiently serious that the public interest in permitting the action to continue outweighs the public interest in protecting that exercise of privilege or expression.

5(3)             Once a motion under this section is made, no further steps may be taken in the action by any party until the motion, including any appeal of the motion, has been finally disposed of.

5(4)             Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the action,

(a)          in order to prevent or avoid an order under this section dismissing the action; or

(b)          if the action is dismissed under this section, in order to continue the action.

5(5)             If a judge dismisses an action under this section, the moving party is entitled to costs on the motion and in the action on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

5(6)             If a judge does not dismiss an action under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

5(7)             If, in dismissing an action under this section, the judge finds that the responding party brought the action in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

Commencement of motion

6(1)             A motion to dismiss an action under section 5 shall be made in accordance with the Rules of Court, subject to the rules set out in this section, and may be made at any time after the action has commenced.

6(2)             A motion under section 5 shall be heard no later than 60 days after notice of the motion is filed with the court.

6(3)             The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served.

6(4)             Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the action and seven hours for all defendants.

6(5)             A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice.

Appeal to be heard as soon as practicable

7                  An appeal of an order under section 5 shall be heard as soon as practicable after the appellant perfects the appeal.

Application

8                  This Act applies to all actions commenced on or after the day the Public Participation Act received first reading.

Defamation Act

9(1)             In any conflicts arising between the provisions of this Act and the Defamation Act, the provisions of this Act shall prevail.

9(2)             The Defamation Act, chapter 139 of the Revised Statutes 2011, is amended by adding after section 17 the following:

Communications on Public Interest Matters

18                Any privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed, reported, or broadcast on by media representatives or other persons.