By Robert Todd
While an expert panel puts the finishing touches on its investigation into strategic litigation against public participation, pressure continues to build on the province to curtail the controversial tactic.
“It’s very clear that some vested interests are using these vexatious legal actions to try to squash dissent, to try to dissuade citizens’ groups and environmental groups from engaging in democratic processes,” says Rick Smith, executive director of the non-profit organization Environmental Defence.
“So we need a legal remedy. It’s clear that the existing law is not adequate to dissuade these powerful companies, largely, from engaging in these kinds of shenanigans.”
SLAPP matters have arisen largely in relation to environmental protests against construction projects in southern Ontario.
Smith suggests development companies have conducted cost-benefit analyses that concluded it makes sense to spend money on lawsuits — often defamation actions — against opponents of their projects.
“It’s clearly meant to stifle debate, and they’re investing substantial resources in launching these things against people who don’t have the means to defend themselves,” says Smith.
It’s an issue the province’s environmental commissioner, Gord Miller, spoke out about in his annual report last year.
“When the stakes are in the many millions — sometimes billions — of dollars, the resources that developers are prepared to invest to overcome residents’ objections far surpass the capacity of most citizens’ groups,” said Miller. He later added, “That chilling effect, I am fully confident, is widespread.”
The issue of SLAPPs has come up in relation to a controversial development of a $1-billion resort project in Innisfil, Ont.
After residents from the community opposed the Big Bay Point Resort at the Ontario Municipal Board, they found themselves subject to a $3.2-million costs claim. However, the board turned down the requested payout.
Meanwhile, many believe litigants already have the means to protect themselves against unwarranted lawsuits such as SLAPPs.
“This type of lawsuit is grossly exaggerated,” says Jeffrey Davies, who often acts on behalf of developers at Davies Howe Partners in Toronto. “Therefore, it isn’t a real issue. It’s a political issue because to have SLAPP legislation makes people feel good.”
The courts already have the power to close the door on lawsuits lacking a legitimate cause of action, Davies notes. He suggests that even proponents of SLAPP legislation would agree that if a party demonstrates a legitimate cause of action, the litigation should go ahead.
“I just think it would be redundant and unnecessary” to introduce anti-SLAPP legislation, says Davies. “Our society just loves to legislate and regulate, and we layer statutes on statutes on statutes which essentially say the same thing.”
Davies believes the province is considering anti-SLAPP legislation because politicians want to show sympathy for issues activists are concerned about.
“It’s in the interest of politicians, because these people have a lot of votes, to make them feel good and make them feel more cocooned,” he says. “But I think the real question is, should SLAPP legislation give people a licence to slander? I think most civilized people would say no.”
Still, anti-SLAPP legislation exists in almost half of the U.S. states. In Canada, Quebec is the only Canadian province to have gone down that path so far. British Columbia’s NDP government passed such a law in 2001, but it was repealed five months after being enacted when Premier Gordon Campbell’s administration came into office.
“This is not untrodden ground,” says Smith. “There’s lots of models out there that we can pick from.”
Environmental Defence wants any Ontario anti-SLAPP act to give the courts the power to stay separate proceedings related to a specific development pending a decision on any alleged SLAPP actions.
Smith believes such a move would allow people to voice their concerns about projects without facing litigation.
“The only way that the current cost-benefit of these large vested interests is going to be changed is if they can’t proceed with the various processes surrounding their proposal so long as they are SLAPPing the local people who might be inclined to engage in those processes,” he says.
Bentley’s advisory panel, led by University of Toronto Faculty of Law dean Mayo Moran, was to issue its conclusions in September.
Toronto media lawyer Brian MacLeod Rogers and Toronto defamation litigator Peter Downard of Fasken Martineau DuMoulin LLP round out the panel. A spokesman for the Ministry of the Attorney General says the group’s work is now expected to wrap up sometime this fall.
Environmental Defence has made its case to the panel, and Smith says he’s hopeful it will come up with a useful remedy for SLAPPs.
Davies, meanwhile, says the panel has a tough job to do.
“They have to find that balance between allowing people to speak, which we all want — I personally am totally in favour of public participation — [and] on the other hand the protection of proponents against defamation and slander,” he says.
Province considers stamping out SLAPPs
October 14, 2010
By Robert Todd