By Allison Hanes, National Post
May 3, 2008
Louisette Lanteigne learned the hard way that free speech doesn’t come cheap.
The suburban mother of three got involved with her local residents’ association in her brand-new Waterloo subdivision a few years back and got slapped with a $2-million defamation suit in 2005 for putting up a Web site with pictures and comments alleging environmental destruction and building code violations by local developers.
At first, Ms. Lanteigne was eager to fight. But when she realized the price of mounting a defence could reach $70,000, she backed down.
Instead, as part of an out-of-court deal, which still left her $8,000 out of pocket, she had to post a public apology retracting her statements and exonerating the developers on the Internet.
“For two months I could not talk about it without throwing up,” she said.
Ms. Lanteigne claims she was a victim of a phenomenon colloquially known as a SLAPP — a Strategic Lawsuit Against Public Participation — meant to frighten her into silence.
Rampant in the U.S. during the 1990s as single moms and retirees were sued for their vocal opposition to big developments, some fear the practice has arrived swiftly and suddenly in Canada, prompting a push for anti-SLAPP legislation.
The issue recently reached City Hall, where Councillor Michael Walker’s motion to call on the Ontario government to outlaw the phenomenon received rare unanimous approval at this week’s council meeting.
Mr. Walker, who represents St. Paul’s ward, said with billions of development dollars often at stake, he fears SLAPPing could arise with increasing frequency and imperil the right of the public to have a say in local issues without fear that their participation.
“It’s called the chill factor,” said Mr. Walker. “You can’t have a democracy if the citizens haven’t got forums where they can speak their minds without fear of retribution – and most particularly retribution that is supported by the institutions of the state, such as quasi-judicial bodies like the Ontario Municipal Board.”
Quebec’s justice minister has commissioned a report on the phenomenon and has promised to introduce a bill before summer. British Columbia had such a law briefly, but it was retracted when the government changed in 2001.
About half of all U.S. states have legislation. The SLAPP Resource Centre at the University of Denver law college defines the practice as “being sued for just telling the government what you think, want or believe in,” which could include writing a letter to the editor, joining a demonstration or speaking out at a public meeting.
The lawsuits themselves are often without merit or even frivolous, the centre states, but the point is often to spread fear among critics or tie them up with the expense of having to defend themselves.
Aside from private business, SLAPPing is also a tool cities and governments have used to silence critics, as the B.C. Civil Liberties Association alleges is the case in Powell River, where it has stepped in to defend a councillor and two residents threatened with legal action over their criticism of a municipal funding matter.
A spokesman for Ontario Attorney-General Chris Bentley said yesterday the government has no immediate plans to introduce anti-SLAPP legislation. Sheamus Murphy said the government will be watching closely to see what happens in Quebec.
“A couple of different issues need to be balanced,” he said. “There are the rights of a number of different interests involved in these lawsuits.’’
The case that many in Ontario are watching closely involves a resort development on Lake Simcoe.
After five years of planning and revising, the OMB has approved the billion-dollar Big Bay Point condominium, marina and golf course project, which has the backing of Innisfil town council.
Now the developer, Kimvar Industries, a subsidiary of Geranium Corp., is seeking to recover $3.6 million in costs from the main opponents of the plan: a local ratepayers association, two private companies with business interests in the area and their lawyers.
This comes after the company filed libel suits against two individuals involved in fighting the project, including the president of the Innisfil District Association.
The looming showdown is being billed as crucial test that could define the limits of public participation. Critics of the developer say the case is the epitome of SLAPPing, while Kimvar’s lawyer counters that furor surrounding the cost application is a “reverse SLAPP” against the developer.
The group Environmental Defence has obtained intervener status, where it will argue awarding costs to the company is not in the public interest.
“This is a critical moment,” said Rick Smith, the group’s president. “I really think that this case is going to decide whether or not any citizen is ever again going to go to the OMB or get involved in the planning process in Ontario. Because the way things are headed at the moment, the planning process in Ontario is going to become a closed shop for wealthy developers and their silk-suited lawyers.”
Michael Miller, the lawyer representing Kimvar, objects to the accusation of SLAPPing. It’s not the company that’s trying to intimidate opponents, he said, but rather a vocal minority trying to villanize the developer and influence the OMB cost hearing before any evidence has even been presented.
He said he will argue that Kimvar has a legitimate claim to the costs because the dissenters were often ill prepared, poorly informed or off topic at the hearings, wasting everyone’s time.
Mr. Miller also challenged the characterization of the cost matter as a David-versus-Goliath battle.
“This isn’t the poor ratepayer,” he said. “It’s some rich cottagers who don’t want this in their backyard, who don’t want the average guy to be able to get out in his boat on Lake Simcoe… and two companies who don’t want our golf course because they want to build their own.”
As for the libel suits, Mr. Miller said Kimvar has no problem with people voicing concerns, but that they cannot malign the company by saying things that are untrue about the company and expect to get away with it.
Environmental Defence has hired lawyer Clayton Ruby to argue the case against the OMB awarding what he calls an “outrageous” amount to the developer.
Mr. Ruby said the set of circumstances under which the OMB can give costs is limited to attempts at deliberate frustration. Even if he wins, however, Mr. Ruby said the opponents of the development will be out “legal expenses in amounts that exceed the annual income of most Canadians.”
“And that’s designed to convey a message and the message is, we will argue, ‘Don’t you dare oppose development.’ ”
Mr. Walker said he is sensitive to the stress and turmoil of having to fight an intimidation lawsuit, having been sued several times by corporations, once for $50 million.
“The council was sued, but I was sued by name… and that was really quite upsetting, I can tell you,” he said. “If I didn’t have the protection of a council with an insurance policy and I was found guilty, I might as well go up to the top of City Hall and throw myself off it because it would destroy every member of my family. So if I’m intimidated like that, I can empathize with how an ordinary citizen would think twice.”
Of development, lawsuits and â€˜the chill factorâ€™
By Allison Hanes, National Post