Thursday, November 27, 2014
By Nicola Shaver Earlier this year, Bill 83, which would have prevented the use of threatening and vexatious lawsuits that suppress free speech in Ontario, died when the provincial elections were called. This was in spite of the fact that the bill had received all-party support in the provincial legislature. Canada has a fairly positive record when it comes to free speech. It is part of our national identity, a value without which we would be hard pressed to call this country a democracy. Yet the right to speak out for our beliefs and against injustice is something we can take for granted as Canadians. Unfortunately, corporations have found a way to thwart our free speech in a way that has, until recently, evaded serious political censure. Incredibly, the tactic has become so common that it has a name: a “Strategic Lawsuit Against Public Participation” (SLAPP). These lawsuits are intended to censor and intimidate critics by encumbering them with heavy legal fees and the burden of defending an ongoing lawsuit until they abandon their opposition. For decades, corporations in the United States and Canada have been using the power of the court system in this way to muzzle outspoken citizens who threaten their activities. It is a way of enforcing silence. Anti-SLAPP legislation, which protects against these abusive lawsuits, is now widespread in the United States. Similar legislation was passed in British Columbia in 2001 (although it was subsequently repealed), and in Quebec in 2009. Ontario currently has no such protection in place. SLAPPs most often come in the form of unfounded defamation suits against under-funded defendants. The problem with these suits is that, once it has been demonstrated that the comment or remark has been published, the burden of proof lies with the defendant to prove the matter at issue is not defamatory. This means that a lawsuit can travel some distance through the court system before it is revealed to be meritless. You may have read about SLAPPs in the context of environmental lobbies. Environmental groups and other activists have been hit hard with these tactics to silence criticism. In 2006, Community AIR, a group opposed to the re-industrialization of the Toronto Waterfront, was sued by the Toronto Port Authority in a suit that The Globe and Mail described as a “hollow and cynical SLAPP.” But if you think this is only a problem for special interest groups, think again. In 2008, small publisher Éditions Écosociété and the authors of a book about the controversial role of Canadian corporations in Africa, called Noir Canada: Pillage, corruption et criminalité en Afrique, were sued for defamation. The $11 million suit was launched by Banro Corporation, an Ontario-based company engaged in the exploration and development of gold properties in the Democratic Republic of the Congo. After three years of defending legal proceedings, Éditions Écosociété finally settled out of court and published a revised version of the book. These cases illustrate the very real power of SLAPPs to silence rights advocates, environmental and otherwise. Yet the reach of these lawsuits can extend even further. Imagine you live in a community where you and your neighbours have noticed increased fumes coming from the factory down the street. Perhaps your daughter’s asthma has been acting up, and some of the families in your vicinity have noticed similar respiratory problems. In response, you decide to write a concerned letter to your city council. Surely you have every right to do this, as a concerned citizen. But what if the result is a defamation lawsuit from the corporation that owns the factory? You are suddenly being sued for millions of dollars. Now you are faced with having to hire lawyers, take time off for court appearances, and somehow find a way to finance this – never mind your daughter’s asthma, or the well-being of your community. The reality is that most SLAPPs don’t make it to court. The few we do hear about are the cases in which the defendants are able to scrounge together enough financial support to valiantly attempt a defence. Most citizens are likely to back down in the face of a SLAPP threat, which is precisely why they are so effective. People targeted by SLAPPs, in spite of being in the legal right, frequently end up abandoning their advocacy work or outspokenness that led to the suit. It can also make them less likely to speak up in the future, for fear of a similar lawsuit being launched. This is why SLAPPs are often cited as having a “chilling” effect on freedom of expression. An eight-year legal fight between developers and ordinary citizens on the shores of Lake Simcoe at Big Bay Point ended in 2007, in favour of the developers. Tree clearing commenced immediately. In the meantime, multi-million dollar defamation suits were lodged by the developers against the members of the residents’ association who had opposed the deal. To add insult to injury, the developers also sought a court order to make the residents themselves pay the corporation’s millions in legal costs. No one is suggesting that corporations should be made to endure false accusations. But there is a balance that needs to be redressed between the rights of the public to free expression and the rights of a corporation to defend itself. The use of deep resources to muzzle critics is not a right; it is an abuse of the legal system and it needlessly clogs the courts. One of the common strategies of corporations that engage in SLAPPs is forum shopping – they look around to find a jurisdiction that is most favourable to the kind of lawsuit they want to bring against a particular target. The number of such lawsuits in Ontario has climbed since anti-SLAPP legislation was enacted in Quebec. Anti-SLAPP legislation is essential for the protection of free speech in our province. Its absence affects all of our democratic rights. Ontario is poised to be the next province to protect its citizens from these problematic lawsuits. It’s time for Bill 83 to be put back on the table and for this province to have anti-SLAPP protections put in place. It is integral for protecting freedom of expression and the public interest.
Nicola Shaver is a Toronto-based lawyer with a passion for freedom of expression and journalistic rights.
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