Law Times

June 10, 2013

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ANGRY BIRDS IP WATCH LIST SCC decision suggests continued criticism Follow LAW TIMES on P5 FOCUS ON Court ruling positive for environmental law P7 Real Estate Law L aw TIMEs P8 CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M $4.00 • Vol. 24, No. 20 ntitled-4 1 June 10, 2013 12-03-20 10:44 A Government cracks down on SLAPPs Bill touted for promoting efficiency, extending qualified privilege BY YAMRI TADDESE Law Times T he Ontario government's move to crack down on speech-limiting lawsuits will achieve more than free expression without fear of undue prosecution, says the University of Toronto Faculty of Law dean who headed the Ministry of the Attorney General's advisory panel on the matter. The bill, introduced last week in the Ontario legislature, will also mean a more efficient justice system in Ontario, says Mayo Moran. Strategic lawsuits against public participation, known as SLAPPs, often target individuals or citizen groups that are vocal about development projects and the use of public land. A 2010 report by Ecojustice and the Canadian Environmental Law Association says although the general perception is that such lawsuits are primarily an issue south of the border, "there has been a worrisome trend" of muffling public debate through meritless defamation claims in this province. The proposed bill will require hearings on SLAPP motions within 60 days, a time frame Moran says will ensure the courts quickly dismiss lawsuits deemed to be SLAPPs so public debate can go on. "The most important thing is really to ensure that citizens feel that they can participate freely in debates on matters that are of public importance even when there might be a little bit of controversy," says Moran. "The other reason I have to say is the wide use of court resources and judicial time because certainly, when these suits get going, there's a lot of judicial time and energy, lawyers' time and energy, used for purposes that really The bill doesn't give slander rights to venomous activists, says Mayo Moran. don't further the interest of the justice system." When the court finally hears the case, the judge often tosses it out, but the long time period between the initiation of a lawsuit and its dismissal effectively silences people and depletes them of their resources, adds Moran. Another key feature of the bill is the extension of qualified privilege when it comes to defamation allegations in relation Photo: Robin Kuniski to matters of public interest, according to Brendan Crawley, spokesman for the Ministry of the Attorney General. "Statements made by a person with a direct interest in a public interest matter to another person who also has a direct interest are privileged, so they do not give rise to liability for defamation," he said.  "The bill, if passed, would extend this See Critics, page 4 Sovereign immunity boosted in Ontario court ruling Law Times C The decision reiterates the notion that sovereign nations 'aren't going to be brought into Canadian courts to have to justify their shareholding,' says Jonathan Lisus. Photo: Sandra Strangemore anadian companies doing business with foreign state-owned enterprises should be mindful of the reality that it won't be easy to bring sovereign states into Canadian courtrooms should a dispute arise, a recent ruling from the Superior Court suggests. In Bombardier Inc. v. AS Estonian Air, Justice Edward Morgan permanently stayed the proceeding after finding the court doesn't have jurisdiction over the Republic of Estonia, owner of 97 per cent of the shares of Estonian Air. Bombardier brought the claim against Estonian Air and the government after a failed negotiation to sell five aircraft to the airline. Estonian Air instead purchased aircraft from Brazilian manufacturer Embraer. The Montreal aircraft builder claimed the cancellation was wrongful and that the government had persuaded the airline to go with Embraer. In a decision dated May 17, Morgan said Bombardier hadn't met the evidentiary burden of proof necessary to waive the Estonian government's defence of sovereign immunity. A plaintiff can meet the requirement only when there's sufficient proof that the government isn't just a passive shareholder but an active commercial participant and decision-maker. "There is no evidence in the record before me to cast any doubt on the separate existence of Estonian Air from its governmental shareholder," wrote Morgan. "The republic's only established involvement as shareholder was to finance the airline's purchase of aircraft, which it accomplished by investing funds in Estonian Air in return for more shares." Morgan also said Bombardier was relying on the argument that the Estonian government had waived its sovereign immunity in the shareholder agreement it signed. But he rejected this argument, noting that a stranger to a contract can't rely on it. "It's trite law that 'no one but the parties to a contract can be bound by it or entitled under it,'" the judge said. PM #40762529 BY YAMRI TADDESE See Estonia, page 4 Get more online • Fresh Canadian legal news and analysis every day Canadian Lawyer | Law Times | 4Students | InHouse | Legal Feeds Visit Us Online 1-8-5X.indd 1 2/28/11 2:37:34 PM

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