By Grant Buckler
As Ontario legislators return to Queen’s Park, more than 140 groups have called on the provincial government to move forward with legislation to prevent strategic lawsuits against public participation (SLAPP suits).
Attorney General John Gerretsen brought forward the proposed law in May, following a 2010 report by the Ontario Anti-SLAPP Advisory Panel which found that SLAPPs deter people from speaking out against what they see as social wrongs.
Groups including Greenpeace, Canadian Journalists for Free Expression, the Centre for Law and Democracy, the Council of Canadians and Marineland Animal Defence are urging the Ontario government to pass the law.
SLAPP suits can be a hindrance to news media and publishers as well as to activist groups expressing concern about environmental, political or other issues. And as noted in the statement on the Greenpeace web site, individuals and groups can face SLAPP suits as a result of contacting the news media.
If it passes, Ontario’s legislation will make the province only the second in Canada – after Quebec – with an anti-SLAPP law. Contrast that to the United States, where 29 out of 50 states have such laws.
Quebec passed its law early in 2009. Like Ontario’s pending law, it says the courts may make a summary judgment that a lawsuit is an improper use of procedure – that is, a SLAPP suit – which then shifts the onus to the plaintiff to show that the suit is legitimate. It also allows the court to order the plaintiff to pay all costs.
As Normand Landry, a researcher and professor at Tele-universite, Universite du Quebec, points out in an article in Canadian Journalists for Free Expression’s 2012-2013 Review of Free Expression in Canada, Quebec’s courts have been conservative in applying the law, and some civil society organizations have argued that the legislation needs revision to give it more teeth.
Quebec is not actually the only Canadian province to pass an anti-SLAPP law to date. British Columbia did so in April 2001, under a New Democratic Party government. The following month the NDP lost an election, and in August 2001 the new Liberal government repealed the Protection of Public Participation Act, arguing that other existing remedies made it unnecessary and that the law was too vague about the grounds on which a court could dismiss a claim.
Anti-SLAPP laws have also been proposed in the legislatures of Nova Scotia, New Brunswick and previously in Ontario as private members’ bills but failed to pass.
In 2010 the Uniform Law Conference of Canada (ULCC) adopted a uniform statute on SLAPPs. The ULCC develops uniform statutes to help promote the harmonization of laws across Canada. According to John Gregory of the Ontario Ministry of the Attorney General, the Ontario panel on anti-SLAPP law considered this uniform statute in preparing the report that led to Ontario’s proposed law, though there are some differences.
Exactly how many SLAPP suits have been brought in Canada is hard to say. One example – cited by Joyce Nelson in an article in Watershed Sentinel in 2010 - involves suits brought by Barrick Gold and Banro Corp. against the publishers of two books that raised questions about the Canadian mining industry: Noir Canada : Pillage, corruption et criminalite en Afrique (Editions Ecosociete) and Imperial Canada Inc.: Legal Haven of Choice for the World’s Mining Industries (Talon Books).
Editions Ecosociete agreed in an out-of-court settlement in 2011 not to publish Noir Canada in this country – despite an earlier Quebec Superior Court decision ordering Barrick to pay the publisher’s costs. Interestingly, online bookseller Amazon.ca lists one used copy. Talonbooks finally published a revised Imperial Canada Inc. in 2012.
In his article for the CJFE Review of Free Expression in Canada, Landry cites a suit brought by Phyllis Morris, then mayor of Aurora, Ont., against several online critics in the run-up to a municipal election. She dropped the defamation suit right after the election (which she lost). Two of the defendants then countersued her for legal costs, and won.
A Saint John, N.B., city councillor, John Ferguson, was unsuccessfully sued by the city’s pension board over remarks he made in 2007 alleging poor management of the pension fund. Because he was a city councillor at the time the city’s insurance covered his legal costs, but he told CBC News last year that without that coverage the suit would have bankrupted him, and called for New Brunswick to pass anti-SLAPP legislation.
In 2009 developer Kimvar Enterprises asked the Ontario Municipal Board to order that its legal costs, pegged at $3.2 million, be paid by a residents’ group that had opposed its Big Bay Point resort project on Lake Simcoe. Citing the need to avoid a chilling effect, the OMB denied the request.
Early in June, Timmins Today reported, Ontario MPP John Vanthof argued in the provincial legislature that the Anson General Hospital and MICs Group of Health Services were using SLAPP lawsuits by charging nine critics in Iroquois Falls with defamation.
Welcoming the Ontario law when it was announced in June, Canadian Journalists for Free Expression said the legislation “explicitly acknowledges both the vital interest of Ontarians in speaking out about issues of public concern and the danger of letting powerful interests use the courts to shackle civic discussion.”
PEN Canada said the law will “encourage freedom of expression on matters of public interest, and discourage use of the courts in ways that unduly limit that freedom.”
Still, some concerns have been expressed. Quoted in The Globe and Mail, Jeffrey Davies, a Toronto lawyer who acted for a developer in a case defendants have called a SLAPP – which Davies denies – said developers sometimes need to take action to counter falsehoods about a project, and “we want to make sure that the legislation is not a licence to slander.”
Grant Buckler is a freelance journalist based in Kingston, ON, and member of CJFE's Canadian Issues Committee