Ontario Publishes Advisory Panel Report on Anti-Activist Lawsuits

The Ontario government this week made public the final report of an advisory panel on SLAPP suits (Strategic Litigation Against Public Participation).

SLAPP suits typically take the form of abusive defamation lawsuits aimed at shutting down criticism by non-governmental organizations or citizen lobby groups. Targets of SLAPPs in various parts of North America have been local residents, neighbourhood associations, municipal governments, and peaceful protesters, who have been sued for acts such as reporting bylaw violations, speaking at municipal meetings or even just picketing and circulating petitions.

The panel recommends that Ontario adopt anti-SLAPP legislation to protect the freedom of the
public to participate in matters of public interest:

“[19] Advocates of legislation who made submissions to the Panel tended to agree on
its main characteristics:

• It should provide a speedy and cheap method to stop lawsuits if those suits were brought for an improper purpose, namely to harass or intimidate the defendants;
• It should put the onus on plaintiffs to prove that their lawsuits were not improper;
• It should help rebalance an inequality of financial resources between the parties, possibly by an order that the plaintiff should pay the defendants’ costs at the outset of the litigation;
• It should provide stronger legal protection for citizens engaged in public participation, such as through special defences;
• It should deter people from bringing such suits in the first place, by exposing plaintiffs, and possibly their directors and officers, and lawyers, to awards of damages or even punitive damages.
• Its principles should apply to the actions of administrative tribunals as well as to lawsuits in court. The recent application to the Ontario Municipal Board for a very large costs award in a planning matter was frequently cited as having had an intimidating effect well beyond that one case, even though the Board ultimately declined to award costs after a lengthy hearing.”

Quebec and many American states already have anti-SLAPP laws.

Background on SLAPPs:

  • SLAPPs: Getting Sued for Speaking Out: “George W. Pring and Penelope Canan explore the full range of SLAPP stories in this first study of SLAPPs— retaliatory lawsuits by real estate developers; teachers; police; politicians; opponents of civil rights; consumers’ rights; women’s rights; and many others. This comprehensive book examines what happens to the targets of SLAPPs and what is happening to public participation in American politics. Addressing the ultimate dilemma—what can be done to turn the tables and fight back—Pring and Canan offer concrete, well-supported, balanced solutions for preventing, managing, and curing SLAPPs at all levels of government. ”
  • Defamation and SLAPPs (Canadian Internet Policy and Public Interest Clinic, University of Ottawa): “The plaintiff’s goal in a SLAPP is not to win the lawsuit, but is rather to silence a critic by instilling fear of large legal costs and the spectre of large damage awards. Despite their right to free speech, critics may be frightened into silence…
  • Corporate Retaliation Against Consumers: The Status of Strategic Lawsuits Against Public Participation (SLAPPs) in Canada (Public Interest Advocacy Centre): “The report describes a number of lawsuits or threats of a lawsuit in Canada that fit the definition of a SLAPP. This evidence suggests that SLAPPs are very much a Canadian phenomenon and have been initiated against consumers for public criticism of products or services as well as against individuals for advocating on environmental issues. The report briefly analyses the constitutional questions raised by SLAPPs and draws comparisons to the constitutional and judicial treatment of SLAPPs in the United States.”
  • California Anti-SLAPP Project: “The Project is a public interest law firm that provides assistance to people on the receiving end of SLAPPs. About half the states in the United States have enacted anti-SLAPP legislation and the website provides links to case law and statutes for California and other states. As well, the site offers other resources, including a bibliography on the issue ”
  • SLAPP’s in Australia (Center for Media and Democracy Sourcewatch): “The following is the beginning of a list of Australian and New Zealand cases where civil litigation has transformed public debate into legal cases. There are all sorts of definitions of SLAPP suits, but the fundamental issue is the chilling effect on free speech. Thus, the primary definition used in compiling the list is that the cases have had, or could reasonably be assumed to have had a chilling effect on the rights and ability of people to participate in public debate and political protest. ”
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Comments

  1. You could also add a background section as to BC’s now-repealed Protection of Public Participation Act, S.B.C. 2001, c. 19 (contents available here). The law was short lived.

    Some lively discussion surrounding its repeal took place in the legislature. It’s interesting to read how the argument was made that the regular provisions in the (former) Supreme Court Rules represent a “complete code” sufficient to protect against the muzzle-minded litigants of vested interests. Check out the debates here, and do a find in page for “SLAPP” (or go directly to 1020).

  2. The Ministry of the Attorney General (Ontario) has also published, or made available by links, a good deal of background information on SLAPP suits. This material was put online in June, when the creation of the Panel was announced.

    Of particular interest may be the transcripts of the sessions (in French) of the National Assembly of Quebec, which held three sets of hearings on the topic. The majority of submissions favoured legislation. The big (almost only) exception was the organized Bar, which, as in BC, opposed any changes to the existing rules. By contrast, the Ontario Bar Association supported legislation, though on relatively narrow grounds (Report, para 28).