What is a SLAPP and does B.C. need a law?

by Peter O’Neil

Recent lawsuits have revised the debate over ‘strategic lawsuits against public participation’ in B.C. Yet many of the cases that some call SLAPPs would not be covered by typical SLAPP laws in the U.S. and elsewhere

OTTAWA–Society’’s rich and famous, from Oprah Winfrey and Jay Leno to the shareholders of Louis Vuitton, are among the many around the world who have been faced with so-called SLAPP lawsuits.

But while the wealthy have the financial means and often helpful laws to fight a “strategic lawsuit against public participation,” targets of alleged SLAPPs in B.C. have a limited ability to defend themselves.

SLAPP suits are typically based on weak legal grounds and are intended to silence critics rather than to win a hefty judgment. And more often than not they’’re aimed at those who can’’t afford a drawn-out legal battle.

Two recent cases have set off a new debate over whether B.C. should revisit Liberal premier Gordon Campbell’’s 2001 decision to scrap a months-old anti-SLAPP law. The law had been passed during the dying days of the New Democratic Party government.

At the time the Liberals argued that such a law, the first of its kind in Canada, was both unnecessary and would lead to a “”protest culture”” in B.C.

It gave judges the power to quickly dismiss certain lawsuits aimed at stifling free speech, with hearings taking place no more than 60 days after a complaint under the anti-SLAPP law was filed. It allowed judges to award costs and impose damages, to be paid by the party that launched the unwarranted legal action.

The bill set tough standards to prove a case was a SLAPP, but also recognized that protesters had “”qualified privilege”” to speak out in a way “”prejudicial”” to the offended party–as long as there was an absence of malice.

The most prominent recent case involved last October’’s $5.6-million lawsuit by Trans Mountain Pipeline, owned by Texas-based pipeline giant Kinder Morgan, against five individuals linked to last autumn’s Burnaby Mountain protests.

The five defendants trespassed and “”wrongfully and without excuse entered upon the Burnaby lands, and physically obstructed, impeded, interfered with and thereby prevented”” Trans Mountain from conducting its fieldwork, according to the statement of claim, which also accused the group of being engaged in a conspiracy to stop the company’’s work. The protests had targeted the company’’s National Energy Board-sanctioned preliminary work on its proposed $5.4-billion oilsands pipeline expansion.

Trans Mountain insisted it was a legitimate legal action and not a SLAPP suit.

But late last month, the company formally abandoned the lawsuit against all five, saying that while it had lost money because of the protests, it wanted to act in the “interest of conciliation.”

The second involves a B.C. company’’s lawsuit against an environmental group, alleging defamation for statements about possible negative effects of Taseko Mines Ltd.’’s proposed mine near Williams Lake. Taseko, which didn’’t respond to an interview request, clearly believes in the legitimacy of its suit, as the case against Wilderness Committee has been before the courts for two days of testimony and cross examination.

Lawyers for each side will meet again to give their final arguments at the end of March, said Joe Foy, the environmental group’’s national campaign director. He said the group had never been sued for defamation before.

Experts consulted by The Vancouver Sun said it’’s often difficult to determine whether or not a lawsuit is a SLAPP. Only judges who have a chance to hear and weigh evidence from both sides, and balance a plaintiff’’s right to sue with the public interest, can determine if a fine line has been crossed.

And the very threat of a SLAPP discourages speculation.

““Canada is considered to have some of the most plaintiff-friendly defamation laws in the English common law world,”” said University of Victoria law professor Chris Tollefson. “”Anyone calling a suit a SLAPP suit risks being hit with a SLAPP.””

The controversy over the two cases has acted as a reminder that B.C. was once, very briefly, a pioneer in the area.

““It’’s a real shame (that the law was repealed), especially considering B.C. was the first Canadian province to have actually adopted an anti-SLAPP bill,”” said Normand Landry, a University of Quebec professor and author of Threatening Democracy: SLAPPS and the Judicial Repression of Political Discourse. ““It actually was a very influential bill both in Canada and elsewhere in the world. It became a blueprint.””

Quebec is the only province with such legislation, enacted in 2009. Ontario’’s Liberal government is pushing through its own bill even though Ontario’’s business community, like Quebec’’s, argues that the law is unnecessary and troublesome.

More than 30 U.S. states have anti-SLAPP legislation. There is also an anti-SLAPP statute in Australia.

Experts say it’’s almost impossible to declare any case a SLAPP at the outset. Laws vary considerably, and judges must consider both the intent of the plaintiff and the broad impact of the lawsuit on public debate. And there are even disagreements on how to define the term.

“”It’’s really in the eye of the beholder,”” said lawyer Marko Vesely, who questions the need for an anti-SLAPP law. He is a partner at Vancouver-based Lawson Lundell, one of Canada’’s top corporate law firms.

Anti-SLAPP laws began in the highly litigious U.S. after two American academics wrote in the late 1980s about what they considered a rising tide of lawsuits aimed at stifling public debate.

One of the best-known examples was the $12 million US lawsuit filed by Texas cattlemen against Oprah Winfrey in 1996, after she declared during a broadcast on mad cow disease that she’d never eat another hamburger. She won the case even though Texas didn’t have an anti-SLAPP law.

In 2006, both Leno and Louis Vuitton used California’’s law to get dismissals of frivolous legal claims.

The most prominent B.C. case took place in 1992 after MacMillan Bloedel launched a lawsuit against local authorities on Galiano Island opposed to the company’’s development plans. Though the Galiano Conservancy Association successfully fought the suit, “”the case took a toll on the organization, diverting its time and efforts away from the real dispute,”” Tollefson wrote in a 2010 paper. He noted that the price the conservancy paid would have been much higher had the Sierra Legal Defence Fund, now Ecojustice Canada, not provided free legal help.

Supporters of an anti-SLAPP law for B.C. said it would help prevent corporations from intimidating individuals and citizens’ groups.

But Lawson Lundell’s Marko Vesely argues it would be “a “solution in search of a problem.”” He said Canadian judges already have the power to dismiss frivolous suits, and agrees with former B.C. Attorney General Geoff Plant that such a law encourages a ““protest culture.””

But other experts say judges typically don’’t throw out cases unless they’’re blatantly without merit, and even then they often don’’t award full costs to defendants.

Josh Paterson, executive director of the B.C. Civil Liberties Association, said judges need to be given explicit direction from legislators to consider the public interest.

“”There needs to be a statute to specifically allow them to look at the public effects on freedom of expression.””

But experts also said it’’s unclear whether B.C.’’s 2001 SLAPP law would have provided any help to the Burnaby Mountain protesters, since the law and most others SLAPP laws around the world generally focus on free speech and do not provide protection for those engaged in civil disobedience.

Eric Goldman, a professor at the Santa Clara University School of Law in California, said none of the 30-odd U.S. states with SLAPP laws would protect someone breaking the law or violating a court order.

Ontario’’s new law, however, might lay the groundwork for a broader definition, according to Ramani Nadarajah, a lawyer with the Canadian Environmental Law Association. She pointed to its broad definition of “”expression”” as “”any communication, regardless of whether it is made verbally or non-verbally.””

““So I think people who are engaged in civil disobedience would be able to seek protection under the bill.””

Paterson, of the B.C. Civil Liberties Association, said his organization never advocates law-breaking.

But he expressed concern over the now-abandoned Trans Mountain suit, which alleged that defendants were engaged in a conspiracy to block work on Burnaby Mountain. He said an anti-SLAPP law should help people who face suits for merely talking about standing in front of bulldozers.

“”People should be free to say those things and not be threatened with a lawsuit.””

Often, high-profile alleged SLAPPs would clearly not be covered by typical anti-SLAPP laws.

Fish farm protester Don Staniford, for instance, claimed he was a SLAPP victim when he was sued by Mainstream Canada, now Cermaq Canada, for defamation. B.C.’’s largest salmon-farming firm was responding to Staniford’’s Internet campaigns alleging that farmed salmon was as dangerous as smoking cigarettes.

B.C. Supreme Court Judge Elaine Adair ruled in 2012 in favour of his “fair comment” defence, based on her conclusion that he honestly meant what he said even though his allegations were both defamatory and malicious. But that decision was reversed in the B.C. Court of Appeal in 2013, and last year the Supreme Court of Canada refused to hear Staniford’’s appeal.

““I wouldn’’t support an-anti-SLAPP law that provided full legal protection to erroneous statements of fact, made recklessly or carelessly,”” Tollefson said.

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