Legal group calls for return of anti-SLAPP legislation
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.”