SLAPP - Strategic Litigation Against Public Participation

SLAPP - Strategic Litigation Against Public Participation

Postby adminjt » Tue Nov 16, 2010 6:04 pm

The anti-SLAPP Panel has been asked to respond to the Ontario Attorney General by September 30, 2010.

Monday, August 16, 2010

CBC News

Ontario mulls law to curb intimidation suits

Ontario is investigating whether the province should follow Quebec in adopting laws to discourage large companies from filing lawsuits for the purposes of intimidating and stifling complainants.

Strategic litigation against public participation, or SLAPP, is defined as a lawsuit meant to muzzle people or groups who speak out on an issue of public interest.

An advisory panel set up by Ontario Attorney General Chris Bentley to investigate potential anti-SLAPP legislation had earlier this month put out a call for submissions from the public, and the first of two public meetings is scheduled for Thursday afternoon in Toronto.

The panel is expected to make its recommendations to Bentley in September.

Will Amos, director of the University of Ottawa's Ecojustice Environmental Law Clinic, said the legislation would be aid in encouraging members of the public to speak up.

"It would provide for strong disincentives financial and otherwise to dissuade potential SLAPP plaintiffs from initiating meritless claims," said Amos. "This would reduce the effect of lawsuits that stifle public expression and public participation and debate."

Quebec is currently the only province or territory with anti-SLAPP legislation, having passed a law in 2009.

In 2001, British Columbia became the first Canadian jurisdiction to pass anti-SLAPP legislation — the Protection of Public Participation Act. But Gordon Campbell's Liberals repealed the legislation five months after it was enacted by the previous NDP government.

Then B.C. Attorney General Geoff Plant said the legislation was unnecessary, given that judges already had the ability to summarily dismiss lawsuits deemed frivolous.

Earlier anti-SLAPP bills were introduced in New Brunswick in 1997 and in Nova Scotia in 2003, but both were defeated.

Anti-SLAPP law applied against dump owner

The Quebec law was successfully applied two weeks ago in the case of a couple from Cantley, Que., a community just north of Ottawa.

Serge Galipeau and his wife, Christine Landry, complained about the smell of hydrogen sulphide gas emanating from a nearby landfill, and found themselves in a four-year legal battle after the owner of the landfill filed a defamation lawsuit.

Justice Pierre Dallaire ruled the $1.25-million suit, if allowed, would interfere with the public's right to free speech and said the landfill owners — a numbered company — filed the suit to intimidate the defendants against making further complaints.

Quebec's Ministry of the Environment revoked the dump's operating licence in September 2006. A provincial administrative tribunal upheld the decision in October 2007.

Ontario Attorney General Chris Bentley established a panel in May to investigate whether Ontario should adopt anti-SLAPP legislation. Public hearings on the issue begin Thursday.Ontario Attorney General Chris Bentley established a panel in May to investigate whether Ontario should adopt anti-SLAPP legislation. Public hearings on the issue begin Thursday. (Canadian Press)

http://www.cbc.ca/canada/ottawa/story/2 ... z11rKGsbfY

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June 13, 2010

Time to slap down SLAPPS?

by Dianne Saxe

Strategic Lawsuits against Public Participation (SLAPPs) are lawsuits that some organizations use to suppress or punish their opponents, including public interest groups that fight proposed developments.[i] These suits used to be rare in Canada, but are now an increasing concern.[ii] They can take the form of defamation claims, or even claims for legal costs (as in the Big Bay Point dispute). On the other hand, SLAPPs can be hard to distinguish from genuine, legitimate claims.

In February, more than 60 public interest organizations wrote to Premier McGuinty, requesting a ban on SLAPPs.[iii],[iv] On May 28, the Ontario government responded by establishing an advisory panel to recommend legislation that would protect the public’s democratic rights from improper lawsuits.[v]

The panel will be chaired by Mayo Moran, the charismatic dean of the Faculty of Law at the University of Toronto and will also include Brian McLeod Rogers and Peter Downard.[vi] Their task is to consult with the public on issue such as:[vii]

1. How to quickly recognize a SLAPP suit;

2. Appropriate remedies for SLAPP suits;

3. Appropriate limits to the protection of anti-SLAPP legislation;

4. Methods to prevent abuse of anti-SLAPP legislation.

The panel is expected to report by September 30, 2010.

If Ontario enacts an anti-SLAPP Act, it will be the second Canadian province to do so. Quebec passed similar legislation in June 2009. Nearly half of American states already have anti-SLAPP statutes.[viii]

References

[i] Ministry of the Attorney General. Backgrounder. Strategic Litigation Against Public Participation

[ii] Environmental Defence. (May 28, 2010). Environmental Groups Applaud Province’s Establishment of Expert Panel to Protect Citizens from Bullying Lawsuits

[iii] Daryn Caister. The Green Majority. Environmental Defence champions “anti-SLAPP” legislation in petition to Ontario’s premier

[iv] Environmental Defence. (February 12, 2010). More than 60 Ontario Groups Call for Protection From Lawsuits Designed to Muzzle

[v] Environmental Defence. (May 28, 2010). Environmental Groups Applaud Province’s Establishment of Expert Panel to Protect Citizens from Bullying Lawsuits

[vi] Ministry of the Attorney General. Backgrounder. Strategic Litigation Against Public Participation

[vii] Ministry of the Attorney General. (May 28, 2010). News. Protecting Freedom of Expression in Public Debate: McGuinty Government Seeks Advice on Legislation

[viii] Ministry of the Attorney General. (May 28, 2010). News. Protecting Freedom of Expression in Public Debate: McGuinty Government Seeks Advice on Legislation

Tagged as: advisory panel, against, anti-SLAPP, blue ribbons, defamation, law, lawsuits, Ontario, ontario government, panel, paneling, public consultation, public participation, publics, recommend, SLAPP, social issues, strategic, Strategic Lawsuit Against Public Participation, tort law

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http://envirolaw.com/time-slap-slapps/

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May 28, 2010

Ontario has established an advisory panel to help suggest content for legislation to target Strategic Litigation Against Public Participation (SLAPP) lawsuits. These SLAPP lawsuits usually take the form of defamation actions. It is alleged that the suits are launched to intimidate and financially punish actual or potential critics rather than to remedy a harm. The heavy costs associated with defending these actions often lead critics to give up their original opposition.

The new panel will advise on how targeted legislation might improve on existing protections in the Rules of Civil Procedure. Such legislation could provide a quick way to have these suits dismissed and allow courts to penalize plaintiffs who use the courts for improper purposes.

The panel members are:

Chair Mayo Moran - The dean of the Faculty of Law at the University of Toronto and expert on Charter of Rights and Freedoms issues. Dean Moran has published in the area of freedom of expression and teaches both private and public law on matters such as comparative constitutional equality, fault and responsibility, and trends in the legal profession. She was appointed assistant professor at the Faculty of Law University of Toronto in 1995, became associate professor in 2000 and was appointed dean in 2006.

Brian MacLeod Rogers - A lawyer practising media law and litigation, with an emphasis on libel, privacy, copyright, freedom of expression and Internet-related issues. He represents writers, newspapers, magazines, book publishers, broadcasters and electronic media. Mr. Rogers was the founding president of Advocates In Defence of Expression in the Media, now known as Ad IDEM/Canadian Media Lawyers Association, and co-founded the media law course at the Ryerson University School of Journalism, where he continues to teach as an adjunct professor.

Peter Downard - A senior litigation counsel and principal Toronto contact for Fasken Martineau in defamation matters. He has extensive experience as defamation counsel in litigation at trial, in the Court of Appeal for Ontario, and in the Supreme Court of Canada, as well as in numerous mediations and advisory matters. Mr. Downard is a practitioner in defamation, an authority on libel law in numerous court decisions and author of numerous articles and texts on defamation.

The public can provide suggestions to the panel by email SLAPPsuggestions@ontario.ca or regular post:

SLAPP Suggestions
720 Bay Street, 7th Floor
Toronto, ON
M7A 2S9

http://www.attorneygeneral.jus.gov.on.c ... app-bg.asp

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Anti-SLAPP Advisory Panel

Introduction

Strategic litigation against public participation (SLAPP) has been defined as a lawsuit started against one or more people or groups who speak out or take a position on an issue of public interest. The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism. Concerns have been raised that SLAPPs also act as a warning to other potential critics. The effect of SLAPP suits is to discourage public debate.

The Ministry of the Attorney General wants to know how the Ontario justice system should be designed to prevent the misuse of the courts and other agencies of justice without depriving anyone of appropriate remedies for expression that goes too far. That is the task of the Advisory Panel on Anti-SLAPP legislation.
The Panel

The Advisory Panel is chaired by Dean Mayo Moran of the Faculty of Law of the University of Toronto and is made up of Brian MacLeod Rogers, a media lawyer with his own practice, and Peter Downard, a partner with Fasken Martineau in Toronto.

More information can be found on the Ministry's website.

Terms of Reference

The Panel is to advise the Attorney General on the potential content of legislation against SLAPPs, and in particular to address key issues including:

* A test for courts to quickly recognize a SLAPP suit
* Appropriate remedies for SLAPP suits
* Appropriate limits to the protection of anti-SLAPP legislation
* Appropriate parties to benefit from the protection of anti-SLAPP legislation
* Methods to prevent abuse of any future anti-SLAPP legislation.

The panel may also discuss and advise on other related matters which it believes will be helpful in dealing with SLAPPs and creating or implementing the legislation.

The Panel has been asked to respond to the Attorney General by September 30, 2010.

Making Your Views Known

The Panel will be accepting submissions from organizations and the public until Friday August 6, 2010. Those interested in making oral submissions to the Panel should indicate so in their written submissions.

The public can send submissions, suggestions and requests to attend a meeting by emailing: SLAPPsuggestions@ontario.ca. Please note that this email address should be copied and pasted into the address line of your email and may not open in an email program. You can also provide comments by regular post to:

SLAPP Suggestions
720 Bay Street, 7th Floor
Toronto, ON M7A 2S9

The Panel will review the submissions and hold two meetings at which interested members of the public may make their views known. These meetings will be held during the afternoons of Thursday August 19 and Thursday August 26.

While submissions made to the Panel may become public information, the name and contact information of the author will not become public unless the author consents.

Background Information on SLAPP Suits

Below are a number of sources of information on SLAPP suits, including links to Canadian and American statutes on SLAPPs, information produced by or for the Quebec government in developing its 2009 revisions of the Code of Civil Procedure, and citations of and if available, links to Canadian and American legal articles.

For a general overview of the issues involved in SLAPPs, you may wish to review the 2008 Report of the Uniform Law Conference of Canada entitled "Strategic Lawsuits against Public Participation (SLAPPs) (and other abusive lawsuits)" (PDF).

Canadian Statutes and Bills

* Uniform Prevention of Abuse of Process Act (2010)
* Quebec Code of Civil Procedure, R.S.Q., ch. C-25, ss. 54.1 - 54.6 (2009)
* Protection of Public Participation Act, S.B.C 2001 c. 19 (British Columbia Act)(2001 - repealed 2001)
* Protection of Public Participation Act (Ontario Bill 138) (2008)
* Protection of Public Participation Act (Nova Scotia Bill 25, 2003, first reading only)

Quebec Legislative Material

* "Les poursuites stratégiques contre la participation publique - les poursuites-bâillons (SLAPP)", Report of the Macdonald Committee (2007)
* Proceedings of the National Assembly Committee on Institutions, February 2008 (general principles)
Committee transcripts
Written submissions
* Proceedings of the National Assembly Committee on Institutions, October 2008 (re Bill 99)
Committee transcripts
Written submissions
* Proceedings of the National Assembly Committee on Institutions, May 2009 (re Bill 9)
Committee transcripts
* Les Constructions Infrabec Inc. v Drapeau, 2010 QCCS 1734, April 30, 2010 (applying the Quebec statute against a SLAPP)

Canadian Articles

Pasca, Alexandra, "Les poursuites-bâillons: frontière entre liberté d'expression et droit à la reputation" (PDF), Lex Electronica, Vol. 14, no. 2, Automne 2009.

Pelletier, Vincent, "Strategic Lawsuits against Public Participation (SLAPPs) (and other abusive lawsuits)" (PDF), Proceedings of the Uniform Law Conference of Canada, August 2009.

Lott, Susan, "Corporate Retaliation Against Consumers: The Status of Strategic Lawsuits Against Public Participation (SLAPPs) in Canada" (PDF) (2004) Public Interest Advocacy Centre, Ottawa.

Rogachevsky, Bram, "Strategic Lawsuits Against Public Participation: Combating an Assault on the Democratic Process" (PDF) (2000) 6 Appeal 28.

Tollefson, Chris, "Strategic Lawsuits Against Public Participation: Developing a Canadian Response" (PDF) (1994) 73 Can. Bar. Rev. 200.

Uniform Law Conference of Canada, "Strategic Lawsuits against Public Participation (SLAPPs) (and other abusive lawsuits)" (PDF), 2008.
American Statutes and Bills

Federal bill: Citizen Participation Act of 2009, H.R. 4364. 111th Cong. (2009)

Arizona: Ariz. Rev. Stat. ss. 12-751 - 12-752

Arkansas: Ark. Code Ann. ss. 16-63-501 - 16-63-508 (PDF)

California: Cal. Civ. Proc. Code s. 425.16

Delaware: 10 Del. C. s. 8136

Florida: Fla. Stat. ss. 768.295, 720.304

Georgia: Ga. Code Ann. s. 9-11-9-11.1

Hawaii: Haw. Rev. Stat. s. 634F

Illinois: 735 Ill. Comp. Stat. Ann. 110/1-99

Indiana: Ind. Code s. 34-7-7

Louisiana: La. Code Civ. Proc. Ann. Art. 971

Maine: Me. Rev. Stat. Ann. Tit. 14, s. 556

Maryland: Md. Code. Ann. Cts. & Jud. Proc. s. 5-807

Massachusetts: Mass. Gen. Laws ch. 231, s. 59H

Minnesota: Minn. Stat. s. 554.01 - 554.05

Missouri: Mo. Rev. Stat. s 537.528

Nebraska: Neb. Rev. Stat. s. 25-21,241 - 25-21,246

Nevada: Nev. Rev. Stat. s. 41.635 - 41.670

New Mexico: N.M. Stat. Ann. s. 38-2-9.1 - 38-2-9.2

New York: N.Y. Civ. Rights Law ss.70-a, 76-a; N.Y. C.P.L.R. 3211(g), 3212(h)

Oklahoma: Okla. Stat. Ann. Tit. 12, s 1443.1

Oregon: OR. Rev. Stat. s.31.150-.155

Pennsylvania: 27 PA Cons. Stat. Ann. s. 7707, ss. 8301 - 8305

Rhode Island: R.I. Gen. Laws ss. 9-33-1 - 9-33-2

Tennessee: Tenn. Code. Ann. ss. 4-21-101 - 4-21-1004

Utah: Utah Code Ann. ss. 78-58-101 - 78-58-105

Vermont: 12 V.S.A. s. 1041

Washington: Wash. Rev. Code ss. 4-24-500 - 4-24-520
American Articles

Rebecca Ariel Hoffberg, "The Special Motion Requirements of the Massachusetts Anti-SLAPP Statute: A Real Slap in the Face for Traditional Civil Practice and Procedure" (PDF) (2006-2007) 16 B.U. Pub. Int. L. J. 97

Paul D. Wilson, "Of Sexy Phone Calls and Well-Aimed Golf Balls: Anti-SLAPP Statutes in Recent Land-Use Damages Litigation" (PDF) (2004) 36 Urb. Law 375

Frederick M. Rowe & Leo M. Romero, "Resolving Land-Use Disputes by Intimidation: SLAPP Suits in New Mexico" (PDF) (2002) 32 N. M. L. Rev. 217.

Jerome I. Braun, "California's Anti-SLAPP Remedy After Eleven Years" (2002-2003) 24 McGeorge L. Rev. 731 (HeinOnline).

Joshua L. Baker, "Chapter 338: Another New Law, Another SLAPP in the Face of California Business" (2004) 35 McGeorge L. Rev. 409 (HeinOnline).

Lauren McBrayer, "The DirectTV Cases: Applying Anti-SLAPP Laws to Copyright Protection Cease-and-Desist Letters (2005) 20 Berkeley Tech. L. J. 603 (HeinOnline).

Mark J. Sobczak, "SLAPPed in Illinois: The Scope and Applicability of the Illinois Citizen Participation Act" (2007-2008) 28 N. Ill. U. L. Rev 559 (HeinOnline).

Michael Eric Johnston, "A Better SLAPP Trap: Washington State's Enhanced Statutory Protection for Targets of "Strategic Lawsuits Against Public Participation" (2002-2003) 38 Gonz. L. Rev. 263 (HeinOnline).

Noah P. Peeters, "Don't Raise That Hand: Why under Georgia's Anti-SLAPP Statute, Whistleblowers Should Find Protection From Misconduct from Reprisals for Reporting Misconduct" (2003-2004) 38 Ga. L. Rev. 769 (HeinOnline).

Sharon J. Arkin, "Bringing California's Anti-SLAPP Statute Full Circle: To Commercial Speech and Back Again" (2003-2004) 31 W. St. U. L. Rev. 1 (HeinOnline).

Shannon, Hartzler, "Protecting Informed Public Participation: Anti-SLAPP Law and the Media Defendant" (2006-2007) 41 Val. U.L. Rev. 1235 (HeinOnline).
American Web Sites

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Strategic lawsuit against public participation - Wikipedia
http://en.wikipedia.org/wiki/Strategic_ ... ticipation

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Wednesday, Jul. 07, 2010

Globe and Mail

Ontario looks to smack down SLAPPs

by Jeff Gray — Law Reporter

It was perhaps the most down-and-dirty development fight in Ontario’s recent memory: An eight-year battle pitting environmentalists and some well-heeled local cottagers against plans to build a $1-billion resort and marina on the shores of Lake Simcoe’s Big Bay Point, north of Toronto.

In the end, the naysayers lost their case before the Ontario Municipal Board, the province’s quasi-judicial tribunal that second-guesses local planning decisions, in late 2007.

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But throughout the fight, the developer – Kimvar Enterprises, a unit of Markham, Ont.-based Geranium Corp. – was busy filing lawsuits, including multi-million dollar statements of claim for defamation against members of a residents’ association opposing the deal. After winning its OMB case, the company decided to go after residents and their lawyers for $3.2-million in legal costs.

The company denies it was improperly trying to muzzle its critics. But its moves sparked a renewed debate over what is commonly known as the SLAPP, or strategic lawsuit against public participation. The tactic sees developers or corporations attempt to silence their grassroots critics, who often have less-than-deep pockets, by launching weak or petty lawsuits against them for defamation.

Ontario’s Environmental Commissioner, Gord Miller, has called for laws to stop SLAPPs. Environmental activists say the practice is widespread in the development industry and used to pacify activists and environmentalists. But lawyers for developers say their clients should not be forced to endure false accusations made in order to whip up public opposition to development projects.

Last month, the Ontario government struck a blue-ribbon panel, chaired by Mayo Moran, dean of the University of Toronto’s law school, to advise it on how to draft legislation to stop developers or other plaintiffs from filing lawsuits meant only to intimidate critics.

Quebec recently adopted an anti-SLAPP law, and about half of U.S. states of similar laws on the books. British Columbia briefly had an anti-SLAPP law that was repealed after the Liberals were elected in 2001.

Critics say the problem with anti-SLAPP legislation is a basic one: When is a SLAPP a SLAPP, and when is it a legitimate lawsuit?

“It’s very much in the eye of the beholder,” said Jeffrey Davies, a veteran development industry lawyer and one of Geranium Corp.’s lawyers in its OMB case. “It’s been my view that the courts have all the tools that they need to protect citizens against abusive lawsuits.”

Geranium’s move to seek costs before the OMB was not a SLAPP, he argued. Geranium asked for legal costs to because its critics caused the OMB hearing to drag on needlessly, he said, a charge his opponents reject.

After hearing from lawyer Clayton Ruby on behalf of the project’s opponents, the OMB ruled against the developer’s cost motion last year. The OMB did not conclude that Geranium Corp. had intended to stifle public debate. But the board did concede that forcing residents to pay costs could have had a “chilling effect.”

Mr. Davies argues that developers, like anybody else, have a right to defend their reputations against the wild allegations often hurled at them at public meetings by opponents of major projects.

“It’s prone to broken telephone, and information becomes misinformation,” Mr. Davies said. “... People think they have a licence to say whatever they want, to beat the thing. ... False premises are made up in order to stir up opposition and get people out to meetings.”

Environmentalist and lawyer David Donnelly, who represented the residents association opposed to the Big Bay Point development, warns that SLAPPs are often hidden behind legal threats and confidential settlements, meaning it is hard to measure how often residents or environmentalists opposing development projects big and small across the province are silenced.

“There are enough suits out there .. that we know it’s a real phenomenon,” Mr. Donnelly said. “The problem is that it’s insidious and that’s why its hard to quantify. I’ve been around this game for 22 years and, I don’t think this is too strong a statement, our democracy is being undermined.”

He said any anti-SLAPP legislation must include a provision to freeze things such as OMB proceedings or environmental assessments while the alleged SLAPP suit is dealt with, in order to strip developers of the power to use lawsuits to scare opponents away from public hearings.

Mr. Donnelly is adamant that Geranium was using SLAPP tactics. But Earl Rumm, president of Geranium, denies any of his lawsuits were SLAPPs meant to frighten away critics: “We did not use these suits in any way shape or form to gain any political or municipal favours.”

As for the defamation lawsuits filed against Big Bay Point opponents, lawyers for Geranium say they are now close to signing out-of-court settlements. Tree clearing on the site to make way for condos and a new marina is already under way.

One of the members of the Ontario government’s three-member SLAPP panel, prominent media lawyer Brian MacLeod Rogers, said it was still too early to discuss what direction the panel was likely to go. Before its Sept. 30 deadline, the panel will solicit written submissions and hold public hearings, he said, to hear from any one with a view on SLAPPs.

The panel must balance both the rights of everyday citizens and developers, he said: “I think everybody on the panel is acutely aware of both sides of this equation. ... We’ll certainly be interested in getting information from people out there experiencing these lawsuits or threats of lawsuits.”

http://www.theglobeandmail.com/report-o ... le1630818/

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2010 May 28

Environmental Groups Applaud Province's Establishment of Expert Panel to Protect Citizens from Bullying Lawsuits\

Panel to advise government on how to guard against strategic lawsuits against public participation (SLAPPs)
Toronto – Environmental Defence, Ecojustice and the Canadian Environmental Law Association (CELA) applauded the McGuinty government's announcement today that it is creating an expert panel to outline how to protect the public’s engagement in the democratic process from the threat of lawsuits.

Strategic lawsuits against public participation (SLAPPs) are lawsuits aimed at silencing public opinion on issues of public concern through the threat of costly legal action. These meritless suits are often framed as, but are not restricted to, defamation claims against citizens who oppose development projects or corporate practices.

The panel is charged with the task of outlining for the government how best to create legislation that will protect citizens from SLAPPs, which are plaguing individuals and community groups across Ontario.

"This is a positive move. SLAPPS are an increasing concern across Ontario and across Canada and are resulting in a real chill on the willingness of citizens to engage in public processes like City Council meetings and the Ontario Municipal Board," said Dr. Rick Smith, Executive Director of Environmental Defence. "The government's announcement of this panel is an important acknowledgement of the problem, and the first step to solving it."

Public demand for an Anti-SLAPP Act has garnered support in the past year, with more than 60 organizations recently signing a letter to Premier McGuinty requesting protection from SLAPP suits. Many of the organizations have experienced legal threats and bullying from oppositional interests in their various efforts to protect the environment, human health or community priorities.

"We see this type of case all too frequently," said Hugh Wilkins, lawyer for Ecojustice. "It is promising to see the McGuinty government finally following the lead of other jurisdictions and taking steps to better protect our democratic rights and to stop these abusive uses of the court system."

"These lawsuits are an improper use of the legal system and meant only to stifle public debate on matters of public interest," said Ramani Nadarajah, counsel at CELA. "An anti-SLAPP law will counter the chilling impact these lawsuits have had on public participation in the environmental decision-making process and make court processes more fair and efficient."

Environmental Commissioner of Ontario, Gord Miller, has also spoken out about the intimidation and chill these lawsuits have on community groups calling them a 'contagion' in his last Annual Report. On a local level, over 65 municipalities, including Toronto, Oakville, Aurora and Hamilton, have passed their own motions to request the province enact an Anti-SLAPP law.

If Ontario enacts an Anti-SLAPP Act, it will be joining Quebec and many U.S. states that already have such statutes.

- 30 -

For more information, or to arrange interview, please contact:

Jennifer Foulds, Environmental Defence, (416) 323-9521 ext. 232; (647) 280-9521 (cell)

Hugh Wilkins, Ecojustice, (416) 368 7533 ext. 34

Ramani Nadarajah, CELA, (416) 960-2284 ext. 217

http://www.environmentaldefence.ca/pres ... php?id=795

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Friday, August 06, 2010

PIAC Comments on Potential Strategic Litigation Against Public Participation Legislation in Ontario

The Anti-SLAPP Advisory Panel requested submissions from organizations, including PIAC, and the public to assist them in successfully discussing what the potential content of Ontario legislation against strategic litigation against public participation (SLAPP) should include. PIAC has extensively studied this subject matter, evidenced by its 2004 report titled “Corporate Retaliation Against Consumers: The Status of Strategic Lawsuits Against Public Participation (SLAPPs) in Canada”, in which PIAC provided rationale for the passage of Anti-SLAPP legislation.

In this submission, PIAC, after having thoroughly analyzed existing relevant materials on this phenomenon, recommends several elements that effective Anti-SLAPP legislation should contain. Recommendations particularly stem from analysis of merits and pitfalls of the following sources: the Uniform Prevention of Abuse of Process Act adopted by the Uniform Law Conference of Canada, Model Act on Abuse of Process discussed at the Uniform Law Conference of Canada, Ontario Bill 138, and Quebec Bill 9.

Download File: piac_slapps_submission_ontario_6_august_2010.pdf [size: 0.09 mb]

PIAC Comments on Potential Strategic Litigation Against Public Participation Legislation in Ontario

http://www.piac.ca/consumers/piac_comme ... n_ontario/

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7 June, 2010

BC trails Quebec, Ontario in protecting public from chilling lawsuits

Imagine criticizing a development or asking for changes to a law and getting sued by a large corporation with high priced lawyers and deep pockets. Even if you did absolutely nothing wrong, fighting the lawsuit could bankrupt you. Sound intimidating? That’s the point of lawsuits intended to silence public debate – known by the acronym SLAPPs, or Strategic Lawsuits Against Public Participation.

SLAPP.jpgOn May 28th, Ontario unveiled an advisory panel to help develop anti-SLAPP legislation. And last year Quebec enacted such legislation – making it the only province in Canada with anti-SLAPP laws on the books. A lot is going on nationally on the issue, but here in BC political activists – or even book publishers – can still be sued simply for speaking up. Meanwhile, in 2006 Australia’s laws were changed to limit the ability of corporations to sue for defamation to protect the public from the chilling effect of litigation.

West Coast Environmental Law explained in our 2002 SLAPP Handbook what a SLAPP is:

Strategic lawsuits against public participation (SLAPPs) are civil actions with little merit advanced with the intent of stifling participation in public policy and decision-making. Most SLAPPs succeed in silencing opposition because public interest groups and ordinary citizens do not have the money to fight the claim in court. …

Typically a SLAPP filer will attempt to bring a range of torts against members of a public interest group, or even the group itself. Some of the more common torts include: interference with economic interests, defamation, interference with contractual relations, conspiracy, trespass, and nuisance.

Our Handbook remains one of the best resources for people facing such lawsuits in BC.

In 2001 BC became a leader, very briefly, in protecting members of the public from being sued for speaking up, when it enacted the Protection of Public Participation Act, after extensive public consultations. However, this groundbreaking anti-SLAPP legislation was promptly repealed by the incoming provincial government after the 2001 elections.

Repealing the Act allows large corporations to use the courts to silence citizen’s concerns. Earlier this month, Barrick Gold, one of the largest mining companies in the world, managed to prevent, or at least stall, publication of a book on the mining companies simply by threatening a lawsuit. To be clear – Barrick Gold does not seem to have had any reason to believe that the book would defame the company, other than that the author had published a previous book that the company says was defamatory and is already suing over.

Canadian lawyer magazine reports on another recent BC case which has been called a SLAPP:

Jack Aasen, a 62-year-old retired justice of the peace, has been called “the poster boy for anti-SLAPP legislation.” He and his wife Judy, with three other residents of their Vernon, B.C., subdivision, were sued by local developer Leonard Brad Chapman and his three corporations over allegedly slanderous statements made by the residents in connection with their concerns about the developer’s handling of sewer and water services. …

Aasen says it was only because he represented himself that he and his wife avoided potentially ruinous legal fees for a case that ended up in the B.C. Court of Appeal. The appeal court ruled against the developer on several allegations, but did find that Aasen slandered the developer when he told the [developer’s] private detective that “he rides around on his horse and he kind of makes the suggestion that he’s got the mayor in his pocket.”

As the main point of contact at West Coast for environmental legal aid, I’m frequently asked for advice on how someone with concerns about impacts on environment or health of a project or development can avoid being sued by developers and other companies if they voice their concerns. I tell them that to make sure the your opponents don’t have a credible case against you by making sure that your information is credible and that you don’t unfairly malign your opponents. But a lawsuit does not need to be credible or successful in order to be devastating financially; ultimately, BC needs to follow Quebec and Ontario’s examples and (re)introduce anti-SLAPP legislation.

To date there’s no indication from the province that they recognize the need for anti-SLAPP legislation. However, an opposition MLA, Leonard Krog, did introduce an anti-SLAPP bill in 2008. While that private member's bill did not become law it does demonstrate that there is at least some political appetite to address this important issue.

Have you ever feared that you might be sued for speaking out against environmental destruction or other public policy issues? How did that feel? Did it prevent you from speaking out? Please share your stories.

http://wcel.org/resources/environmental ... g-lawsuits

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Re: SLAPP - Strategic Litigation Against Public Participatio

Postby adminjt » Thu Nov 18, 2010 2:14 pm

August 5, 2010

The Ottawa Citizen

Lawsuit filed by landfill owners dismissed

Intention was to quash complaints about toxic Cantley site, judge says

By Dave Rogers,

A Quebec Superior Court judge has dismissed a $1.25-million lawsuit filed by the owners of a toxic Cantley landfill site against a couple who complained about it, ruling the lawsuit interfered with the public's right to free speech.

Justice Pierre Dallaire ruled that the lawsuit was intended to intimidate Serge Galipeau and Christine Landry and discourage more complaints about hydrogen sulphide gas, which at one point was present in high enough concentrations to kill people who remained close to some gas vents at the landfill.

Dallaire said the lawsuit was a strategic lawsuit against public participation (called a "SLAPP suit") meant to limit debate about the landfill on Highway 307. Galipeau says the decision means Quebec residents will feel more free to speak the truth about corporations that are harming them.

The Ministry of Environment still has a gas meter in Galipeau's backyard. Galipeau said residents still complained that they coughed and had headaches when they were too close to the landfill. He said gas levels still exceeded World Health Organization hydrogen sulphide guidelines of five parts per billion, but the Quebec Ministry of the Environment has not covered all of the dump with clay and a plastic membrane to reduce the amount of gas in the community.

Galipeau and his wife, Landry, asked Dallaire to dismiss the $1.25-million defamation lawsuit filed by landfill owners Denzil Thom and Gilles Proulx in September 2006 on the grounds it violated a new Quebec law that protected freedom of speech during debate about public issues.

Proulx declared bankruptcy in 2008 and Thom, who still owns the site, did not argue the case in court. A Quebec labour tribunal closed the landfill on Oct. 15, 2007, because of the hydrogen sulphide emissions.

Dallaire said in a written judgment that the lawsuit was intended to intimidate ordinary citizens who didn't have deep pockets.

"The lawsuit did not have this effect because the defendants never ceased their public declarations and their struggle against the plaintiffs until government authorities forced the closing of the landfill site," the ruling said. "The lawsuit filed by the plaintiffs against the defendants has all appearances of a strategic lawsuit against public participation. As a result the court concludes that their demand is abusive and dismisses it with costs."

The Quebec National Assembly approved an anti-SLAPP law -- short for "Strategic Lawsuit Against Public Participation" -- on June 3, 2009. Similar whistleblower laws have been passed in 26 U.S. states, but Quebec's is the only legislation of its kind in Canada.

Galipeau said the ruling was significant because it meant Quebec residents would find it easier to speak the truth about corporations that harmed them. Galipeau is seeking $625,000 in damages and legal costs back from the landfill owners.

The Municipality of Cantley removed 30 families living within a kilometre of the construction-material landfill near Holmes Road and Highway 307 briefly in March 2005 after the site caught fire and smouldered for months.

© Copyright (c) The Ottawa Citizen

http://www.ottawacitizen.com/news/Lawsu ... z0wlacz3OG

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August 7, 2010

The Montreal Gazette

Court victory for citizen participation

To grasp the full measure of the victory won last month by a Quebec couple, you have to start by imagining that you live near a toxic landfill, and that reeking fumes of hydrogen sulphide gas are escaping from the site at levels that not only surpass World Health Organization guidelines, but were at least once high enough to kill anyone who strayed close enough.

Then imagine doing what any reasonable citizen would do -complaining. Yet instead of being listened to, you find yourself fighting off, at huge personal expense, a $1.25-million civil suit filed by the landfill site's owners.

Unfair? In spades, Quebec Superior Court Judge Pierre Dallaire ruled on July 17. The lawsuit was intended, Dallaire held, to intimidate Serge Galipeau and Christine Landry, and also to make sure no other residents near the Cantley landfill site, on Highway 307, went public with complaints.

Luckily for the couple, and for other Davids fighting deep-pocketed corporate Goliaths, last year the National Assembly unanimously passed a law against Strategic Lawsuits Against Public Participation (SLAPPs), certain kinds of legal action by companies against, typically, grassroots associations.

The suit brought by the landfill's owners was deemed a classic SLAPP. The 2009 law allows a judge to toss out such suits, like the one against Galipeau and Landry. It also grants defendants the right to claim legal costs from plaintiffs.

The law was enacted mainly to protect neighbourhood and activist groups that, rarely incorporated, usually lack liability protection. Faced with multi-million-dollar claims, no matter how spurious, they have little choice but to retreat. But when they do, democracy -and justice -can suffer. Citizens are constantly reminded of their duty to be involved and active in civic life. If they need legal protection in order to freely debate issues of public concern, provinces should make sure suitable provisions are in place.

Even a short list of SLAPP examples makes the problem clear. Abusive suits range from singer Barbra Streisand's unsuccessful $50-million privacy lawsuit of 2003 against a photographer documenting coastal erosion, to the case that led to Quebec's anti-SLAPP law. In that one, environmental groups won in 2005 an interlocutory injunction forcing American Iron and Metal Co. Inc. to stop illegal dumping of waste into the Etchemin River. AIM's CEO denied the dumping, but within a few months, in apparent retaliation, AIM launched a $5-million suit against the environmentalists.

Quebec is still the only jurisdiction in Canada to arm its citizens with an anti-SLAPP law. The rest of the country would do well to follow suit. There is a compelling need to provide protection for citizens who want to voice opposition, or even an opinion, about issues of public interest.

© Copyright (c) The Montreal Gazette

http://www.montrealgazette.com/opinion/ ... story.html

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Wikipedia - Strategic lawsuit against public participation
http://en.wikipedia.org/wiki/Strategic_ ... ticipation

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