Toronto–Environmental Defence is calling on the Government of Ontario to introduce legislation to protect environmental and ratepayer groups, and ordinary citizens, from frivolous lawsuits by vested industrial interests.
So-called Strategic Lawsuits Against Public Participation, or “SLAPP” suits, are used by proponents to intimidate and silence voices opposed to massive and damaging projects such as ill-advised development proposals.
“The problem is so serious it warrants immediate legislative action to prevent future abuses of the democratic process,” said Jennifer Foulds, acting executive director of Environmental Defence. “In the Big Bay Point case, it will take almost a year to have the matter heard and decided at an expense few citizens can afford. SLAPPs must be stopped if our public participation processes are to have any legitimacy.”
Environmental Defence has intervened before the Ontario Municipal Board (OMB) in the infamous Big Bay Point, Lake Simcoe, mega-marina cost award application to argue that the developer-initiated cost claim of $3.6 million against the Innisfil District Association (IDA) and its lawyers is highly damaging to the public interest. The issue has received attention in the current issue of Toronto Life magazine.
Lawyer Clayton Ruby, who represents Environmental Defence, suspects that the $3.6 million demand was intended to intimidate ordinary citizens. “The provincial government has an obligation to ensure the OMB operates democratically, so that everyone can take part in the process,” said Ruby. “Otherwise it becomes a game that only the wealthy can play. It is urgent and crucial that these OMB hearings not be permitted to become a mere pretense of public welcome.”
Environmental Defence believes that only the provincial government can solve this problem. “The problem has become so serious in the province of Quebec that the government has responded by introducing legislation to protect their citizens from this threat,” said David Donnelly, counsel to Environmental Defence and one of the targets of the $3.6 claim. “What’s the use of having Canada’s most robust environmental protection regime if people are afraid to speak out and engage it?”
In a letter sent yesterday to Premier McGuinty, Environmental Defence drew the Premier’s attention to the fact that the claim against the IDA and Mr. Donnelly was launched on December 21, 2007, but that a hearing date has been set for October 14th and has been scheduled for four days. Proponents can easily afford to spend huge sums of money on an Ontario Municipal Board process; most citizens and environmental groups cannot, making even the cost of defending the OMB cost claim prohibitive.
According to the Anti SLAPP Resource Center in Denver, Colorado, most SLAPPs lose in court. They are not intended to win: their “success” comes from silencing opposition in the public arena. Fending off a SLAPP requires an incredible investment of both money and time. Given the power imbalance between environmental and citizen groups and vested industrial interests, SLAPPs can engender such incredible anxiety in their targets that they effectively quell dissent.
About Environmental Defence: Environmental Defence protects the environment and human health. We research solutions. We educate. We go to court when we have to. All in order to ensure clean air, clean water and thriving ecosystems nationwide, and to bring a halt to Canada’s contribution to climate change.
For more information, or to arrange interviews, please contact:
Jennifer Foulds, Environmental Defence, (416) 323-9521 ext. 232; (647) 280-9521 (cell)
July 10, 2008
Office of the Premier
Rm 281, Main Legislative Building
I write to respectfully request that your government act immediately to introduce legislation to end the scourge of Strategic Lawsuits Against Public Participation (SLAPP) in Ontario.
Specifically, Ontarians need assurance that citizens at Big Bay Point in Innisfil, and elsewhere, cannot be threatened and harassed for taking their case to the Ontario Municipal Board.
On December 21, 2007, counsel to the Geranium Corporation announced through the media that it was seeking $3.6 million in adverse costs against the Innisfil District Association (IDA), Gilbert’s LLP, and Gilbert’s lawyers Tim Gilbert and David Donnelly personally. This amount apparently represents all of Geranium’s and the Town of Innisfil’s costs in preparing the development application, a claim that is not even supported by the OMB’s own rules.
Environmental Defence has obtained intervener status at a scheduled fall OMB hearing. The case has received considerable media and public attention, including in the current issue of Toronto Life, yet we will not see the matter resolved until after a full year has elapsed after the completion of the original OMB hearing that led to the cost award. This delay in justice in unconscionable and even if, in the end, the OMB rules in the IDA’s favour their cost of defending themselves – and the anxiety generated by the case — will be considerable.
Mr. Clayton Ruby has been retained by us to argue that Geranium’s claim is a SLAPP suit designed to dissuade citizens from engaging in public processes that affect their community. Based on mounting evidence from other development cases across southern Ontario, where citizen groups are thinking twice about appearing in front of the OMB for fear of crippling financial penalties, we believe Geranium’s high-profile SLAPP suit is having the desired effect of chilling public participation.
In Environmental Defence’s view it is patently unjust to allow this process to drag on for so long. We are calling on our partner organizations in the Ontario Greenbelt Alliance to join our call for anti-SLAPP legislation. The Province of Quebec and over 20 states in the U.S. have introduced or adopted SLAPP suit protection for their citizens.
Public confidence in public processes has been severely damaged by this experience. I look forward to your government’s response to this crisis.
Rick Smith, PhD