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BC trails Quebec, Ontario in protecting public from chilling lawsuits

7 June, 2010

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  However, this groundbreaking anti-SLAPP legislation was promptly repealed by the incoming provincial government after the 2001 elections.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.