Vancouver Sun

Legal group calls for return of anti-SLAPP legislatio­n

- IAN MULGREW imulgrew@postmedia.com Twitter.com/ianmulgrew

A group of 15 legal luminaries and scholars — including two former Supreme Court of Canada justices and two erstwhile provincial attorneys general — is calling on the B.C. government to pass anti- SLAPP legislatio­n.

In an open letter to attorney general David Eby to be released today, the blue-ribbon legal pride says the continuing presence of these abusive lawsuits threatens confidence in the legal system and can result in a significan­t waste of public and judicial resources.

“Plaintiffs in strategic lawsuits against public participat­ion, or ‘SLAPPs’ as they are known, unfairly target individual­s or groups with strategic lawsuits with the effect of deterring them from speaking out on matters of public interest,” read an advance copy of the letter provided to Postmedia.

“Defendants of SLAPPs are exposed to onerous financial and emotional costs incurred in a process that attacks their individual right to speak on matters of public interest and chills citizen engagement more broadly. … British Columbia needs to safeguard the administra­tion of justice by enacting effective antiSLAPP legislatio­n.”

It is signed by former Supreme Court of Canada justices Ian Binnie and Frank Iacobucci, Ujjal Dosanjh (former premier and ex-attorney general), Wally Oppal (former B.C. Court of Appeal justice and ex-attorney general), Lynn Smith (former B.C. Supreme Court justice), Carol Baird Ellan (former B.C. provincial court chief judge), lawyer Joseph Arvay, ex-lawyer and novelist William Deverell, dean of the Peter A. Allard School of Law Catherine Dauvergne, and professors John Borrows (UVic), Val Napoleon (UVic), Chris Tollefson (UVic), Nicole Schabus (Thompson Rivers University), Joel Bakan (UBC), and David Boyd (UBC).

“It’s the right thing to do,” said Tollefson, executive director of the Pacific Centre for Environmen­tal Law and Litigation. “It’s become very mainstream, the idea that democratic expression needs to be protected . ... And we need to relieve the courts of these kind of suits by providing a procedural means to identify them and get them out of the system. It’s about restoring public trust and encouragin­g the public participat­ion that these lawsuits undermine.”

An anti-free-speech tactic, SLAPP suits first appeared in the U.S. in the late 1980s intended to censor, intimidate or silence critics by saddling them with legal expenses and sapping procedural demands. A high-profile 1999 case prompted the last NDP government, under Dosanjh, to pass an anti-SLAPP law.

After the Liberals won power in 2001, they repealed the Protection of Public Participat­ion Act, the first law of its kind in Canada, saying it was unnecessar­y and would lead to a “protest culture.”

Since then, Quebec adopted a similar law in 2009 and Ontario in 2015 to “allow the public to participat­e more freely in public discussion­s without fear of retributio­n.”

In the U.S., 28 states, the District of Columbia and Guam have similar statutes.

A case brought by Taseko Mines Ltd. and another — later abandoned by Trans Mountain against five individual­s linked to Burnaby pipeline protests — re-ignited the B.C. debate over anti- SLAPP legislatio­n.

NDP Nanaimo MLA Leonard Krog introduced an anti- SLAPP bill in 2015 that went nowhere because the Liberals still controlled the legislatur­e.

In December, Taseko lost its appeal of a B.C. Supreme Court decision tossing its suit against the Western Canada Wilderness Committee over harsh criticism of its proposed New Prosperity gold-copper mine near Williams Lake.

The company initially launched the litigation to douse the committee’s campaign against the $1.5-billion mine (approved by B.C. but twice rejected by Ottawa), while denying it was a SLAPP lawsuit.

In his January 2016 ruling, however, Justice Gordon Funt dismissed the firm’s claims and said they did try “to silence critics on a matter of public importance.”

The venerable signatorie­s recommend legislatio­n modelled on Ontario’s Protection of Public Participat­ion Act.

“Ontario’s legislatio­n remedies the principal defects of B.C.’s short-lived previous anti-SLAPP legislatio­n, which required defendants who attempted to use the mechanism to demonstrat­e an improper motive on the part of the plaintiff,” the letter said. “As motive is very difficult to prove in civil suits such as the ones at issue, this threshold would generally be insurmount­able and was avoided in the Ontario legislatio­n. It is not necessary to have a motive requiremen­t in place to ensure that meritoriou­s claims can proceed while allowing SLAPPs to be dismissed at an early stage.”

Ontario’s legislatio­n, they added, did just that: “The remedy we are urging here is not costly, and indeed, is likely to bring cost savings in properly preserving limited judicial resources.”

 ??  ?? In January 2016, a judge ruled that Taseko Mines tried to “silence critics” of its New Prosperity gold-copper mine near Williams Lake through a lawsuit.
In January 2016, a judge ruled that Taseko Mines tried to “silence critics” of its New Prosperity gold-copper mine near Williams Lake through a lawsuit.
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