By: Douglas Johnston
The group of cottage owners north of Toronto who faced a $3.2-million costs claim from a developer for opposing the building of a marina, condo/hotel complex and golf course on Lake Simcoe were victims of a contagion infecting Canada’s justice system. It’s a contagion best known by its acronym, SLAPP — short for Strategic Litigation Against Public Participation.
Although technically not a lawsuit, but a costs award sought before the Ontario Municipal Board, the sum sought by the developer was so huge its object was clearly the same as a SLAPP lawsuit — punish a citizen’s group for opposing development and intimidate potential future opposition to such projects. Ultimately, the board didn’t order the cottagers to pay any costs, but the threat of financial ruin weighed heavily on the families involved in the Innisfil District Association.
SLAPP suits are ordinary civil claims —- defamation, inducement of breach of contract and interference with economic relations are the trio of legal actions most commonly employed — launched solely to stifle public debate. It’s routine for these suits to claim damages in the millions or multi-millions of dollars.
Their targets are grassroots associations — homeowner organizations, environmental groups and neighbourhood-preservation coalitions — that are usually unincorporated. This means they don’t have the limited liability protection a corporation provides. Spokespersons and members are therefore personally liable and put at risk of having a judgment entered against them. The result: Individuals’ personal assets — homes, cars, bank accounts, wages, investments — are up for seizure, garnishment or sale, if ultimately on the losing end of a lawsuit.
The sums demanded in SLAPP suits bear no logical relationship to the harm alleged to have been suffered. Humongous amounts, pretty much plucked out of thin air, are pleaded in statements of claim, inserted solely for the purpose of threatening peoples’ livelihoods. Often these damage claims amount to a form of legalized extortion. Their blunt message: “Shut up and go away” or face potential ruin.
The most basic activities of citizens speaking out on issues of public concern or engaging in debate about public issues have given rise to SLAPPs. Individuals have been sued for writing letters to a newspaper, speaking to the media, circulating petitions, organizing representations to local government, picketing, making submissions to government agencies and even for testifying at public hearings.
Apologists for SLAPPs argue our justice system requires proof — that you can’t just launch a lawsuit and take it to the bank. A big-bankrolled litigant must still prove its case in open court, they contend.
But according to the U.S.-based Anti-SLAPP Resource Center, most SLAPPs aren’t, ultimately, or even likely, legally successful. And most SLAPP plaintiffs — the companies that initiate the lawsuits — know this going in. They sue because even if they lose in court they win in the public arena by having silenced the opposition.
The United States is far ahead of Canada when it comes to anti-SLAPP legislation. In the U.S., state legislatures, alarmed at the proliferation of SLAPPs, made haste to halt them. Since 1992, more than half of American states have enacted legislation prohibiting use of the courts to shut down democratic debate.
In Canada, only Quebec has an anti-SLAPP law, passed in 2009. (British Columbia enacted an anti-SLAPP law in April 2001, but repealed it just five months later, following a change of government.) Quebec was prompted to act after a notorious SLAPP launched by American Iron & Metal Co. Inc. was fast followed by four similar suits.
Quebec modified its rules of civil procedure to permit a defendant to bring a motion for summary dismissal — whereby a lawsuit can be turfed early on in proceedings — of a SLAPP suit. The amendments also allow a judge, where he or she smells a SLAPP, to order a plaintiff to post a substantial dollar value as security with the court before being allowed to proceed with its suit. And what’s known as punitive damages — judicially found abuse of the civil justice system — are also now codified in the rules. The overarching object of the changes is to punish plaintiffs who seek to use the courts to shut down public debate.
In a democracy, citizens shouldn’t be afraid to get vocal and politically active for fear of being sued. When even ordinary participation in public-policy debate gives rise to a SLAPP, we’ve created a system where anyone with deep pockets can skew the workings of the political process.
But SLAPPs don’t just impair the political process. They’re also an abuse of the judicial system. Our civil justice system shouldn’t let itself become a legal bazaar where anyone, for the price of a lawyer and a court filing fee, can commence a claim that suppresses the expression of opposing ideas.
Ontario’s Liberal government is reportedly weighing whether to follow Quebec’s anti-SLAPP lead. It, and all other provinces, Manitoba included, can’t act soon enough. Legislation to protect grassroots activism is past due.
Quebec aside, SLAPPs’ unchecked spread has fostered a Canadian justice system that dispenses something less than justice.
 
Douglas J. Johnston is a Winnipeg lawyer.