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Getting Sued for Speaking Out

Burnaby No Trans Mountain Pipeline March

SLAPP suits - or Strategic Litigation Against Public Participation - are lawsuits brought by large corporations and government agencies against individuals, associations, unions, non-profits and community-based groups. The effect of a SLAPP suit is to silence and intimidate an opponent whether an individual or community group through fear of the costs of defending themselves against huge claims in court. SLAPP suits cause fear and intimidation through mounting legal costs or simple exhaustion so that individuals and community groups abandon criticism and opposition to a corporate project or government or corporate agenda. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization's ability to operate. SLAPP suits may also intimidate others from participating in public debate and protest from fear of being sued and so ordinary people may not speak out or participate in demonstrations for fear of themselves being sued in the future. This "chill factor" is a real and present danger and part of the collateral damage to all democratic processes caused by SLAPP suits.

SLAPP suits are becoming a growing part of political disputes in Canada; they are widespread and have been filed by corporations and government agencies against ordinary people for simply:

• writing a letter to the editor in a local newspaper
• circulating petitions
• contacting a public official
• reporting police misconduct
• erecting a sign on one's property
• complaining to school officials about teacher misconduct or unsafe conditions in a school
• speaking at a public meeting or making a submission to a city council
• reporting unlawful activities
• testifying before legislative committees
• speaking out as a representative of a public interest group
• giving interviews to the media.

SLAPP suits are growing in number because they are instrumental in changing the dynamics of political disputes; SLAPPs move political disputes to a private legal arena that favours giant wealthy corporations. As Tollefson explains, SLAPP suits are used to "...regain the upper hand in a dispute which it [the corporation] is losing in the political arena. It can also recast the terms of the dispute. Whereas in the political realm the fiIer is typically on the defensive, in the legal realm the fiIer can go on the offensive, putting the targets' actions under scrutiny." (Tollefson 1994; 207)

In a recent Canadian study of SLAPPS, Normand Landry explains the legal and sociological effects:

"SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defence. The longer the litigation can be stretched out, the more litigation that can be churned, the greater the expense that is inflicted and the closer the SLAPP filer moves to success... The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent."
(Gordon v. Marrone 1992 cited in Landry, 2014).

SLAPP suits undermine and subvert democratic rights and the democratic process. SLAPPs have the effect of:

• muzzling public opinion and limiting citizen participation in public affairs;
• creating huge personal, emotional and financial damage for the families and friends of the people targeted by such lawsuits, and;
• depoliticizing public debates, issues;
• depoliticizing citizens who have suffered themselves, or observed a SLAPP through the "chill" effect.

How can this attack on democratic rights be possible in Canada? Every Canadian should have the protection of the Charter of Rights and Freedoms to freely voice their concerns and to organize public demonstrations. But they don't. In fact, the Charter of Rights and Freedoms does not protect protestors and critics and the courts impose a huge burden to achieve any sort of justice and redress.(1)

To illustrate the nature and extent of SLAPP suits in British Columbia, the following briefly summaries three recent cases before the courts in just the first few months of 2015.(2) Links to summaries of several earlier SLAPPs filed in British Columbia during the late 1980s and 1990s and to information on a number of other recent SLAPPs filed across Canada follows.(3)

1.) Trans Mountain Pipeline ULC v. Dutton et al. (2015)

Burnaby No Trans Mountain Pipeline March

Trans Mountain Pipeline ULC, a subsidiary of the giant transnational oil company Kinder Morgan, applied for and was granted an injunction in October 2014 to stop rallies and demonstrations on Burnaby Mountain Conservation Land. Trans Mountain alleged damages associated with the rallies of $5.6 million and five people were named in the lawsuit along with Jane and John Doe and the Burnaby Residents Opposing Kinder Morgan (BROKE) - a community non-profit group.

Alan Dutton was one of the five defendants and was sued personally and as a representative of the non-profit. Trans Mountain alleged that Dutton was involved in a conspiracy to commit various torts to prevent Trans Mountain from clear cutting in the Conservation Land to perform geotechnical work.

Trans Mountain did not submit any evidence against BROKE, but did submit two quotations from BROKE's website and a quote by Dutton from the Burnaby Now, a local community newspaper. Neil Chantler of Chantler and Company defended Dutton and the non-profit and provides the following summary of the case as follows.

"On September 26, 2014, the BC Supreme Court denied the City of Burnaby the right to appeal the decision of the NEB to allow Kinder Morgan to undertake survey work and test drilling on Burnaby Mountain Conservation Land. The decision infuriated residents, environmental, church and many other groups and they began demonstrating against the work on the mountain. Kinder Morgan responded by filing a $5.6-million civil suit against five people for speaking out and allegedly interfering with contractual relations.

"The media quickly identified the civil suit as a SLAPP suit, or strategic litigation against public participation. SLAPP suits have become common throughout North America, including the province of British Columbia, and are causing havoc among many types of groups. SLAPP suits generally lack merit and are not likely to succeed in court. Instead the goal of a SLAPP suit is not generally to win, but to silence critics. SLAPP suits tie up resources, drain resources, divide groups and may also dissuade others from speaking out and excising their own rights to express themselves.

"When it became apparent that Kinder Morgan was loosing the publicity war against the defendants, the transnational offered the defendants a “discontinuance.” Two jumped at the offer and accepted. A discontinuance, however, is not a settlement and does not end the civil suit, or result in the corporation paying for court costs. The allegations against the defendants stand. As a result, three of the defendants refused the demands to settle. Alan Dutton took Kinder Morgan back to court claiming that the civil suit was, in fact, a SLAPP suit and claiming damages. Dutton lost the case and Kinder Morgan issued a unilateral discontinuance against the three remaining defendants, resulting in a liability for Kinder Morgan to pay a portion of the mounting court costs.

"The experience of days in court and the injustice of the court system resulted in Dutton mounting a provincial campaign for law reform against SLAPP suits. West Coast Environmental Law has provided two grants to Dutton to hire a legal research team for law reform and Dutton is working with groups to petition the provincial government for change to protect Charter rights that are under attack from corporations that are able to use the legal system to suppress Charter rights." (Chantler, 2015)

One important lesson we draw from this case is the importance of media attention and public support. The media and continued public support can have a dramatic and positive effect on the outcome of a SLAPP suit for defendants and the community for both the short and long term. More about communication strategy can be found here. Clearly, Kinder Morgan did not anticipate the negative effect of the lawsuit on public attitudes and the planned expansion through Burnaby. As the oil strategy journal, Alberta Oil, argued:

"…as the public reaction to Kinder Morgan’s suit shows, energy companies should use their legal recourse in the courts – however it might be defined – with both caution and restraint. Both Coleman and Cowan say that companies should carefully consider the optics of engaging in a suit against a critic rather than engaging with critics in an open dialogue. To the public, a case that is dismissed as a SLAPP is often seen as an attempt by a company to gag a small, independent critic. Public support tends to fall with the oppressed – whether the oppression is perceived or real." (Alberta Oil, April 2015)

A second lesson repeated throughout the history of SLAPP suits actual evidence plays a minor role in how long the SLAPP suit stays before a court or how much it costs to defend against a SLAPP suit. As Chantler notes, there was no evidence presented by Trans Mountain that directly linked Dutton, or any other members of BROKE, to any activity that violated the law, or that Dutton supported any activity that interfered with Trans Mountain's lawful activity. In fact, Dutton and BROKE were on record arguing for planning and coordination so that Burnaby bylaws would not be broken and that all protestors would respect the law.

Nothing Dutton said or did encouraged or incited any unlawful activity, but his statements were taken out of context and considered as prima facie evidence of a conspiracy to commit illegal acts. As Justice Cullen decided, "… given the utterance of Mr. Collis and to a lesser extent [emphasis added] Mr. Dutton and Ms. Quarmby, a court reasonably could conclude that there was a concerted and coordinated effort to thwart the plaintiff’s representatives from performing their duties on behalf of the plaintiff through the use of the unlawful means which are pleaded. In my view, the circumstances at bar reach the level of a strong prima facie case in view of all of the evidence.”

The lack of evidence of any unlawful act resulted in widespread criticism of the courts decision. The Burnaby Now, for example, warned that merely by being present at the site of a crime could now be considered prima facie evidence of illegal activity by the courts. Summarizing the issue, a Burnaby Now editorial titled "Alan Dutton's case raises alarming questions" noted,

"... Kinder Morgan made collective allegations about a group of protesters on the mountain and named Dutton, along with the four others, because he [Dutton] was easy to identify… We understand civil suits like Kinder Morgan's are often brought forward while seeking an injunction, and Ian Anderson, president of Kinder Morgan Canada, said he wouldn't pursue the case if the company got its work done. But the fact you can sue a group of people, claim millions in damages and blame a few in the crowd for the acts committed by the whole is alarming... What happens if you are at a protest and someone throws a brick through a window? Could you be sued because you're an easy face to pick out of the crowd? Dutton took this case on to stand up for freedom of expression and the right to protest, but the judge's decision raises serious questions about how we can exercise those rights." (Burnaby Now, January 15 2014)

Justice Cullen did address the issue of freedom of expression versus illegal activity referencing Greenpeace Canada Ltd. v. MacMillan Bloedel Ltd. (1994) but dismissed the issue of freedom of expression protected by the Charter of Rights and Freedoms in favour of the right of Kinder Morgan to leave so-called "private matters" to be tried in court. Justice Cullen's ruling was clearly based on Trans Mountain's characterization of the protests on Burnaby Mountain as a unified expression of one group’s goals, planning and strategy. Dutton was found guilty simply by association, despite serious questions about the evidence against him and others.

To challenge Justice Cullen's ruling, Dutton filed an application for a summary judgment under Rule 9-6 to dismiss Trans Mountain's claim of his alleged participation in a conspiracy to obstruct Trans Mountain's work. Dutton argued that Kinder Morgan's claim was launched for an improper purpose (In other words a SLAPP) to stifle Dutton's Charter right to express his views in protest over Trans Mountain's destruction of the environment on formerly protected Burnaby Mountain Conservation Land.(3) However, Justice Wong disagreed with the application to dismiss and accepted Trans Mountain's argument of conspiracy based on the characterization of the groups organizing and protesting on Burnaby Mountain by Trans Mountain.

Justice Wong ruled that Kinder Morgan's intention was not to silence and interfere with Dutton, but was only to further surveying and drilling work and that Justice Cullen’s interlocutory injunction issued two weeks after the lawsuit was launched put an end to the protesters’ obstruction but still allowed, within limits, protesting by the defendants. Following Justice Cullen’s decision, Justice Wong ruled that there was a strong prima facie case of conspiracy to obstruct against the named defendants, including Mr. Dutton. (Trans Mountain Pipeline ULC v. Gold, 2014 BCSC 242)

Justice Wong also noted that after the exploratory work was completed Trans Mountain announced that it was not going to pursue its civil claim against Mr. Dutton and the other named defendants for economic loss and/or damages. Justice Wong ruled that the matter of costs to Trans Mountain by Dutton was to be decided later. Trans Mountain argued that the only reason for costs to be claimed would be to motivate Dutton to accept a "discontinuance" which Dutton had previously rejected. Dutton was intent on bringing the matter to court for a hearing on the evidence and a true resolution. Trans Mountain then issued a "unilateral discontinuance" when Gold, Neisan and Dutton refused to agree to a settlement that Collis and Quarmby earlier accepted. (Collis and Quarmby had accepted Trans Mountain's offer of a discontinuance without costs, apology or a final settlement). The unilateral discontinuance did force the giant oil company under court rules to pay part of Dutton's court costs, thus avoiding a trial on the evidence.

As Chantler notes above, however, the discontinuance does not end or settle the case at all. Trans Mountain is free to continue with charges as it sees fit at any time in the future. As a result, all of the defendants may suffer consequences when applying for bank loans, crossing international borders, applying for work through loss of reputation. The discontinuance also prevents further challenges to Trans Mountain’s civil suit by Dutton who noted that he planned to appeal. The only door open to Dutton to clear his name is to sue Trans Mountain for defamation.(4)

There is some debate about the characterization of Trans Mountain's civil suit as a SLAPP suit. Clearly, the case of Trans Mountain v. Dutton reveals many of the main characteristics of a SLAPP suit; there were no proven illegal acts committed by Dutton and the evidence presented of a conspiracy was circumstantial at best, if not defamatory. The only evidence presented by Trans Mountain and cited by Justice Cullen was from a BROKE website managed by Dutton and there was no proof of who posted the statements or in what context they were presented and a quote from a local newspaper which stated a personal opinion. Further, Trans Mountain did not take the case against Dutton to trial but forced a "unilateral discontinuance" with costs when media attention turned ugly against Trans Mountain. Clearly, the case against Dutton would likely not have succeeded at trial. While it was impossible to prove that Trans Mountain intended an improper purpose, the effect of the case against Dutton created a "chill" effect throughout the community and stopped ordinary residents of Burnaby, as well as many others, from attending and observing the destruction of areas of the Burnaby Conservation Land - land formerly protected by City bylaws - and on unceded Coast Salish territory. Finally, the SLAPP divided groups as people became afraid they would be dragged into Trans Mountain's civil suit. Whatever was intended, however, is not the problem. The effect was to damage public participation in an important environmental matter affecting many thousands of people for generations to come.

2.) Taseko v. Wilderness Committee (2015)

Interview with Sven Biggs on Taseko v. Wilderness and Sven Biggs. The interview took place on September 4, 2015. A decision on Taseko v. Wilderness is likely within the year.

Taseko v. Wilderness Committee is on-going. However, a number of points are clear. Taseko Mines Ltd. brought a defamation suit against Sven Biggs, an employee of the Wilderness in March 2012 and the case was heard in Vancouver during the summer of 2015. According to the Castlegar Source, the Taskeo lawsuit stems from comments made by the Wilderness Committee in 2012, during a public comment period for Taseko’s proposed New Prosperity Mine and "[t]hat proposal has since been rejected by the Government of Canada because of unacceptable risks to the environment and the conflict with Aboriginal land title and rights. Meanwhile, Taseko recently announced that “The BC Minister of Environment has granted a 5 year extension to the environmental assessment certificate for development of the Prosperity gold-copper project.” Taseko is also awaiting a decision on its attempt to sue the federal government over its rejection of the New Prosperity mine for environmental reasons." (Castlegar Source, 2015; )

The Wilderness Committee maintains that Taseko Mines court action alleging defamation is meant to

"put a chill on public opposition. Like many others, we want to see the Fish Lake area protected and the company’s mine plans abandoned forever,” said Joe Foy, National Campaign Director for the Wilderness Committee. “Lawsuits like these eat away at the very foundations of democracy and free speech, which form the basis of our society. We intend to stand our ground, said Foy... Grand Chief Stewart Phillip of the Union of BC Indian Chiefs spoke out: “The fight to protect Teztan Biny is not just about a mine, it’s about upholding First Nations’ title and rights. Taseko’s proposed mine is within Tsilhqot’in territory and the UBCIC fully supports the Tsilhqot’in Nation Government’s great opposition to it,” said Grand Chief Phillip. “The stated positions of First Nations and the carefully considered opinions of environmental groups like the Wilderness Committee are vital, and should never be allowed to be smothered by deliberate legal intimidation,” he said... Devon Page, Executive Director of Ecojustice, said “All voices need to be heard in the continuing debate about environmental protection in this province. Using the court to stifle public discussion does not result in better government decision-making and it certainly doesn’t result in better outcomes for the environment or for the people of British Columbia.” ... Councillor Marilyn Baptiste of the Xeni Gwet’in First Nation also commented: “A SLAPP suit against our friends at the Wilderness Committee is atrocious. The Wilderness Committee has shown longstanding support for the Tsilhqot’in and we stand in solidarity with them now,” said Councillor Baptiste. “The Tsilhqot’in opposition to both Prosperity Mine proposals was voiced by Elders, youth and leaders, and experts agreed in both CEAA panel reviews. Our voices echo this position every day at the thought of anyone destroying our wild rainbow trout or grizzly bear habitat and not considering our future generations and our Aboriginal rights and title,” she said."
(Castlegar Source, Mining Company SLAPPs Wilderness Committe

The Wilderness Committee and Sven Biggs argued that Taseko Mines had not been defamed and that the Taseko Mines civil suit is a SLAPP suit that violates Canadian Charter rights. In the words of the Wilderness Response to Civil Claim, Taseko Mines law suit "...represents an improper use of the litigation process or threat thereof to silence critics on a matter of public importance, and as such the action should be dismissed with special costs." The Wilderness Response argued that the Taseko action "is frivolous, vexatious and an abuse of process, and as such should be dismissed with special costs" and finally that through the proceedings, Taseko Mines is

"...seeking to use the law of defamation to limit the fundamental freedom of expression of the defendants, which is protected by the Canadian Charter of Rights and Freedoms. The true and dominant purpose of this action is to curb the defendants' exercise of freedom of expression to the extent it is critical of the plaintiff’s project. The common law of libel and applicable statutes should be interpreted and applied in a manner protective of the defendant's rights and consistent with charter values, and accordingly this action should be dismissed." (Taseko v. Wilderness Committee)

Wilderness' presented the legal basis of their defense as follows:

1. Words are only defamatory at common law where they attack the character or integrity of the plaintiff in the minds of reasonably well informed and thoughtful readers.

2. Fair comment at common law protects statements recognizable as opinion, inferences or deductions which represent views a person could honestly hold on matters of public interest and based upon facts stated or known, which are true or privileged.

3. Responsible communication at common law protects statements on a matter of public interest which were responsibly published.

4. The Canadian Charter of Rights and Freedoms, section 2(b), protects freedom of expression subject only to reasonable limits demonstrably justifiable in a free and democratic society.

5. Rule 9-5 of the Rules of Court permits a Court to strike or dismiss pleas which are scandalous, frivolous, vexatious or an abuse of process.

6. Rule l4-1 of the Rules of Court permit a Court to award increased or special costs in appropriate circumstances, which has been held in this province to include litigation which is designed as a strategic lawsuit against public participation. (Taseko v. Wilderness Committee)

The decision on Taseko’s lawsuit against the Wilderness Committee and Sven Biggs will undoubtedly be another important milestone in SLAPP history in BC.

3.) Northwest Organics, Limited Partnership v. Maguire (2015)

An application to appeal to the Supreme Court by Sheila Maguire in Northwest Organics, Limited Partnership v. Maguire was denied in the summer of 2015. The case stems from the opposition by a number of residents to an application by Northwest Organics to process waste on ranchland in Botanie Valley. Northwest Organics alleged defamation on the part of several residents and, in one case, trespass. Northwest Organics alleges that statements, a study of the impact of a waste facility on residents, wildlife and environment, and a number of flyers mailed to residents defamed the company. Residents have been holding rallies and blocking a local highway on several occasions to draw attention to the dispute. The Kamloops News summarizes the issues before the court as follows.

"A resident of a rural area near Lytton lost a bid to have a defamation suit against her dismissed, the latest salvo in a battle to stop an organic waste facility operating on a farm. Northwest Organics LP and Northwest Group Properties Inc. purchased ranchland in Botanie Valley several years ago, intending to use a portion of land to recycle organic waste. Residents protested and hired an environmental consultant. That report, along with flyers titled “What is the Truth?” and “Beware of Half Truths,” were circulated, making claims about intentions of its owners. The companies then commenced a defamation suit against Botanie Valley resident Sheila Maguire [and Ed Roest et al] and several anonymous parties.

"...The defendants argued the defamation action was a so-called SLAPP (strategic litigation against public participation) suit, intended to stifle freedom of speech. Gratl argued that B.C. Supreme Court civil rules governing lawsuits should conform to the Canadian Charter of Rights and Freedoms. While Charter arguments apply to government, the defendants argued the rules of the court are a creature of government. Therefore, those rules should recognize freedom of expression and the threats posed by lawsuits intended to stifle free speech."

However, as the Kamloops News also states: "Courts in this country have not opted to make it more difficult to sue for libel, as it is in the United States. Provincial governments have not created laws to protect freedom of expression between parties that don't include government... In my view, the defendants are proposing a substantive change to the law of defamation, not simply a change in the rules of practice," Savage wrote." (http://www.kamloopsnews.ca/test-case-against-defamation-laws-fails-in-ru...)

The leave to appeal Justice Savage's ruling for protection under the Charter by Sheila Maguire, one of the many defendants in the case filed by Northwest Organics, was denied July 2015 as follows:

"The Applicant, Ms. Maguire, opposed the development of a composting facility by the respondents, Northwest Organics, L.P. and Northwest Properties Inc. (“Northwest”). Northwest filed a notice of civil claim against her for defamation. Ms. Maguire contended that the lawsuit was a SLAPP (“i.e. “strategic lawsuit against public participation”) suit intended to intimidate her and restrict her expressive freedom. She sought an order to dismiss it pursuant to Rules 9-5 and 9-6 of the B.C. Supreme Court Civil Rules. Ms. Maguire argued that in SLAPP cases, Rules 9-5 and 9-6 should be interpreted in accordance with Charter values of freedom of expression, access to justice and protection of reputation, and proposed that a novel two-part test be applied in those cases. Under that test, a claim involving expression in the public interest would be summarily dismissed if it did not involve significant injury to reputation or if it did not have a significant likelihood of success. The B.C.S.C. dismissed the application on the basis the proposed test represented a substantive change to the law of defamation, not simply a change in the rules of civil practice, and that such a change was more properly to be undertaken by the legislature or by higher courts with a full evidentiary record. The B.C.C.A. dismissed the appeal. "The application for leave to appeal...is dismissed with costs to the respondents Northwest Organics, Limited Partnership and Northwest Group Properties Inc." Northwest Organics, Limited Partnership v. Maguire, 2014 BCCA 454 (36248)

Early B.C. SLAPPs

1.) MacMillan Bloedel Limited v. Galiano Conservancy Association (1992)

In the late 1980s and early 1990s environmental activists organized against large British Columbia logging companies as they protested the clear cutting of sensitive environmental areas of the province. Michaelin Scott and Chris Tollefson explain that: "Although SLAPPs can arise in a broad range of commercial or political settings, they often arise in the realm of environmental or municipal planning disputes. This is due to the conflux of commercial interests, grass-roots activism and governmental decision-making powers that characterize this arena." (Scott and Tollefson, 2010)

In 1991, for example, MacMillan Bloedel Ltd. sued the Western Canada Wilderness Committee and thirty-four people over protests against clear-cutting of old growth forests in Vancouver Island's Tsitika Valley and launched a second law suit against clear-cutting in Clayoquot Sound also on Vancouver Island (Scott and Tollefson 2010; Sheldrick 2015). MacMillan Bloedel was a large transnational forestry corporation that was then based in British Columbia. "The suit [MacMillan Bloedel] was aimed at the trust committees decision to enact new bylaws in response to community concerns over the environmental integrity of Galiano Island's water supply. The result of these democratically enacted bylaws was to negatively affect the ability of MacMillan Bloedel's ability to log or to sell off land..." (Sheldrick 2014)

At the same time, a New Zealand transnational corporation sued forty-one individuals and the Carmanah Forestry Society for protesting clear-cutting of the ancient rainforest of the Walbran Valley. A third lawsuit for $15 million in damages was launched against the Galiano Conservancy Association and the Galliano Trust Committee and municipal councilors.

Scott and Tollefson present an outline of the MacMillan Bloedel v. Galiano Conservancy Association case as follows:

"The suit [MacMillan Bloedel] alleged, among other things, the existence of illegal conspiracy between the Conservancy, the Council and three elected councillors; it sought substantial money damages and a declaration quashing the by-laws. The Conservancy denied involvement in a conspiracy, claiming that its work around the issue consisted of entirely legal efforts at public education and lobbying… MacMillan Bloedel pursued the claims against the Conservancy and the councillors for about a year, forcing the defendants to engage in pre-trial discoveries and other preparatory work. Ultimately, the company decided to drop these claims only a few weeks before the scheduled trial date. In issuing the consent dismissal order, Justice Tysoe of the BC Supreme Court responded to the Conservancy’s contention that the case had been brought for improper strategic purposes and was therefore a SLAPP, by ordering that the Conservancy be allowed to pursue examinations for discovery of company officials with a view to establishing grounds for an award of special costs. MacMillan Bloedel unsuccessfully appealed this ruling to the BC Court of Appeal. Following an initial discovery of a senior company official, the case was settled out of court. Although the Conservancy was ultimately successful in defending the lawsuit, the case took a toll on the organization, diverting its time and efforts away from the real dispute. These costs would have been substantially higher had they not received pro bono representation by the Sierra Legal Defence Fund." (Scott and Tollefson 2010)

2.) Fraser v. Saanich (1999)

Fraser v. Saanich was the first Canadian case in which a court both explicitly characterized litigation before it as a SLAPP and penalized the instigator of the proceedings for the SLAPP (Tollefson and Rogachevsky 2000; Scott and Tollefson, 2010; Landry 2014). What became know as the Cedar Hill Eight was a case opposing development of a heritage site. "The Cedar Hill Eight did not set out to be champions for democratic rights, let alone litigants in a precedent-setting test case. They were sued for doing what most of us take for granted: exercising their right to participate in local government decision-making. As Tollefson and Rogachevsky note:

"Concerned about the adverse impact of a development proposal on their Cedar Hill neighbourhood, they [Cedar Hill Eight] drafted a petition and lobbied their local councillors. When Saanich council took steps that effectively blocked the proposed development, the developer sued eight of the local residents whose names appeared on a petition that had been submitted to council. The developer's lawsuit alleged that the eight residents had, among other things conspired to injure business by opposing, its development plans. The suit sought damages for economic losses from each of the eight residents." (Tollefson and Rogachevsky, 2000)

Explaining the context of the case, Landry writes:

"The Fraser v. Saanich case followed a suit filed by the owner of a hospital building against citizens protesting the remodeling and sale of the building. The citizens, who were opposed to an enlargement of the building while it was in operation, requested a zoning change and designation of the building as a heritage site at the end of its operations in order to preserve its architectural and historical dimensions and to avoid the development of a large-scale complex in a residential area. The change in zoning was eventually made, limiting the sales potential of the building. The owner brought lawsuits against the citizens who had demonstrated in this matter, as well as against the City of Saanich, alleging that there had been interference with contractual business, conspiracy, collusion, negligence and bad faith from the defendants...." (Landry, 2014)

In his verdict explicitly acknowledging SLAPP suits for the first time in Canada from the bench, Judge Singh declared that:

"While neighbourhood participation in municipal politics often places an almost adversarial atmosphere into land use questions, this participation is a key element to democratic involvement of said citizens in community decision-making. Signing petitions, making submissions to municipal councils and even the organization of community action groups are sometimes the only avenues for community residents to express their views on land use issues. The solicitation of public opinion is specifically mandated in the Municipal Act. This type of activity often produces unfavourable results for some parties. However, an unfavourable action by local government does not, in the absence of some other wrongdoing, open the doors to seek redress on those who spoke out in favour of that action. To do so would place a chilling effect on the public’s participation in local government... A SLAPP suit is a claim for monetary damages against individuals who have dealt with a government body on an issue of public interest or concern. It is a meritless action filed by a plaintiff whose primary goal is not to win the case but rather to silence or intimidate citizens who have participated in proceedings regarding public policy decision-making... What the plaintiffs expect to receive they should clearly also expect to deliver. I find, therefore, finally, that this action not only contains an unreasonable claim, is meritless and devoid of any factual foundation, but also has been used as an attempt to stifle the democratic activities of the defendants, the neighbourhood residents. I find the plaintiffs’ conduct reprehensible and deserving of censure by an award of special costs. (Singh J. Fraser v. Saanich (1999))

West Coast Environmental Law noted that:

"The recognition by the judge that the SLAPP phenomenon exists, and that it harmfully impacts on lawful behaviour, illustrates the ability of the court to help combat the trend. However, it is important to add the qualifier that Justice Singh only discussed SLAPPs after deciding that the plaintiff’s claim of conspiracy had no factual basis. The case was decided based on the application of the abuse of process doctrine discussed earlier; Fraser’s lawsuit was not dismissed on the basis that it was a SLAPP. The Fraser decision is therefore of questionable use as a legal precedent to allow the SLAPP doctrine to act as a defence to a lawsuit. While its utility is limited somewhat by this reality, the decision will be memorable for advancing the dialogue about SLAPPs, and raising awareness about the issue among the judiciary and the legal community." (WCEL 2002; 17)

Summarizing the nature and function of SLAPP suits based on Fraser v. Saanitch and other cases, Tollefson and Rogachevsky argue that:

"SLAPPs are founded on exaggerated and unsupportable legal claims, that have little or no chance of succeeding at trial. But to the SLAPP filer this is beside the point. Their goal is not to win the lawsuit in court, but to deter opposition and achieve community acquiescence. Faced with the prospect of steep lawyer's bills and the ongoing anxiety of fighting a lawsuit that could drag on for years, many citizens and cash-strapped community groups settle rather than fight." (Tollefson and Rogachevsky 2000)

Notes
Under Construction...
1.) 1.) A very brief discussion of the problem with Charter Rights and common law courts can be found here http://www.stopslappsuits.ca/content/courts-and-charter-rights

2.) The following cases are presented because they appear to fit the general characteristics of SLAPP suits and because of the focus on them in the media. They are presented for discussion purposes concerning the development of anti-SLAPP legislation in BC. No assumption is made about the intentionality of the parties. The focus is on the effect of forcing matters of great public concern into the private sphere and the great disparity of wealth between parties that often results in the death of democratic processes.

3.) The matter of municipal laws to protect land was challenged by the City of Burnaby and is under appeal. Nevertheless, the case against Dutton proceeded.

4.) There may be other avenues of redress available to Dutton which are now being explored.

Cases Cited

Daishowa Inc. v. Friends of the Lubicon - 1995canlii7298

Fraser v. Saanich (District), 1999 B.C.J.

MacMillan Bloedel Ltd. v. Galiano Conservancy Assn - 1994canlii265 (BCCA)

Northwest Organics Limited Partnership v. Maguire - 2013 BCSC 1328

Northwest Organics, Limited Partnership v. Maguire, 2014 BCCA 454 (36248)

Trans Mountain Pipeline ULC v. Gold, 2014 BCSC 2133

Trans Mountain Pipeline ULC v. Gold, 11-14 CORR

Trans Mountain Pipeline ULC v. Dutton et al. (BCSC)

References

Anti-SLAPP Advisory Panel (Ontario), 2010. Report to the Attorney General: "Moran Report".

Canan, Penelope and George W. Pring. 1988. "Strategic Lawsuits Against Public Participation." Social Problems, Vol. 35, No. 5

__________. 1988. "Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches." Law and Society Review, Vol. 22, No 2.

Chantler, Neil. 2015. Suggestions for a New and Improved Protection of Public Participation Act for BC Vancouver, Environmental Defence Working Group.

Landry, Norman. 2014. Threatening Democracy: SLAPPS and the Judicial Repression of Political Discourse. Winnipeg, Fernwood Book Publishing.

Pring, George and Penelope Canan. 1996. SLAPPS: Getting Sued for Speaking Out.Philadelphia, Temple University Press.

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Sheldrick, Byron. 2014. Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression.Wilfred Laurier University Press.

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Related Media

1.) Trans Mountain Pipeline ULC v. Dutton et al. (BCSC)

Trans Mountain drops civil action against Burnaby Kinder Morgan protesters (Jan 30, 2015, CBC)
Kinder Morgan loses bid to extend injunction (Nov. 27, 2014, CBC)
Burnaby residents ask court to toss out Kinder Morgan’s lawsuit (Nov. 7, 2014, Vancouver Observer)
Kinder Morgan takes pipeline protesters to court (Oct. 31, 2014, Global BC)
Judge rejects Burnaby’s injunction bid against Kinder Morgan (Sept. 17, 2014, Globe and Mail)

2.) Taseko v. Wilderness Committee and Sven Biggs

Wilderness Committee Response to Civil Claim (https://www.wildernesscommittee.org/sites/all/files/publications/Respons...).
Wilderness Committee News Release (http://www.stopslappsuits.ca/content/taseko-slapp-over-fish-lake-fight)
Financial Clout v. Right to Speak Out. West Coast Environmental Law review (http://wcel.org/resources/environmental-law-alert/financial-clout-v-righ...)

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