Law Times

Law Times • OcTOber 4, 2010 An online resource 1.800.263.3269 Focus On LITIGATION Province considers stamping out SLAPPs But panel faces tough balancing act between business and citizen rights BY ROBERT TODD Law Times tigation into strategic litigation against public participation, pressure continues to build on the province to curtail the con- troversial tactic. "It's very clear that some W vested interests are using these vexatious legal actions to try to squash dissent, to try to dissuade citizens' groups and environ- mental groups from engaging in democratic processes," says Rick Smith, executive director of the non-profi t organization Environmental Defence. "So we need a legal remedy. It's clear that the existing law is not adequate to dissuade these powerful companies, largely, from engaging in these kinds of shenanigans." SLAPP matters have arisen largely in relation to environ- mental protests against construc- tion projects in southern Ontar- io. Smith suggests development companies have conducted cost- benefi t analyses that concluded it makes sense to spend money on lawsuits — often defamation actions — against opponents of their projects. "It's clearly meant to stifl e de- bate, and they're investing sub- stantial resources in launching hile an expert panel puts the fi nishing touches on its inves- these things against people who don't have the means to defend themselves," says Smith. It's an issue the province's environmental commissioner, Gord Miller, spoke out about in his annual report last year. "When the stakes are in the many millions — some- times billions — of dollars, the resources that developers are prepared to invest to over- come residents' objections far surpass the capacity of most citizens' groups," said Miller. He later added, "Th at chilling eff ect, I am fully confi dent, is widespread." Th e issue of SLAPPs has come up in relation to a controversial development of a $1-billion resort project in Innisfi l, Ont. After resi- dents from the community opposed the Big Bay Point Re- sort at the Ontario Municipal Board, they found themselves subject to a $3.2-million costs claim. However, the board turned down the requested payout. Meanwhile, many believe litigants already have the means to protect themselves against unwarranted lawsuits such as SLAPPs. "Th is type of lawsuit is grossly exaggerated," says Jeff rey Davies, who often acts on behalf of devel- opers at Davies Howe Partners in Toronto. "Th erefore, it isn't a real Concern over SLAPPs is 'grossly exag- gerated,' says Jeffrey Davies. issue. It's a political issue because to have SLAPP legislation makes people feel good." Th e courts already have the power to close the door on law- suits lacking a legitimate cause of action, Davies notes. He sug- gests that even proponents of SLAPP legislation would agree that if a party demonstrates a legitimate cause of action, the litigation should go ahead. "I just think it would be re- dundant and unnecessary" to in- troduce anti-SLAPP legislation, says Davies. "Our society just loves to legislate and regulate, and we layer statutes on statutes on statutes which essentially say the same thing." Davies believes the prov- ince is considering anti- SLAPP legislation because politicians want to show sym- pathy for issues activists are concerned about. "It's in the interest of poli- ticians, because these people have a lot of votes, to make them feel good and make them feel more cocooned," he says. "But I think the real question is, should SLAPP leg- islation give people a licence to slander? I think most civilized people would say no." Still, anti-SLAPP legisla- tion exists in almost half of the U.S. states. In Canada, Quebec is the only Cana- dian province to have gone down that path so far. British Columbia's NDP government passed such a law in 2001, but it was repealed fi ve months af- ter being enacted when Premier Gordon Campbell's administra- tion came into offi ce. "Th is is not untrodden ground," says Smith. "Th ere's lots of models out there that we can pick from." Environmental Defence wants any Ontario anti-SLAPP act to give the courts the power to stay separate proceedings re- lated to a specifi c development pending a decision on any al- leged SLAPP actions. Smith believes such a move would al- low people to voice their con- cerns about projects without facing litigation. "Th e only way that the current cost-benefi t of these large vested interests is going to be changed is if they can't proceed with the various processes surrounding their proposal so long as they are SLAPPing the local people who might be inclined to engage in those processes," he says. Bentley's advisory panel, led by University of Toronto Faculty of Law dean Mayo Moran, was to issue its conclusions in Sep- tember. Toronto media lawyer Brian MacLeod Rogers and To- ronto defamation litigator Peter Downard of Fasken Martineau DuMoulin LLP round out the panel. A spokesman for the Min- istry of the Attorney General says the group's work is now expected to wrap up sometime this fall. Environmental Defence has made its case to the panel, and Smith says he's hopeful it will come up with a useful remedy for SLAPPs. Davies, meanwhile, says the panel has a tough job to do. "Th ey have to fi nd that bal- ance between allowing people to speak, which we all want — I personally am totally in favour of public participation — [and] on the other hand the protection of proponents against defamation and slander," he says. LT Top litigator helped by good mentors BY ROBERT TODD Law Times land this year's Ontario Bar Association Award for Excellence in Civil Litigation. Th e OBA honour is the second in a banner year on A the award circuit for Tough. She also received the Wom- en's Law Association of Ontario's President's Award. Kathryn Podrebarac, Tough's partner since 1999 at their boutique litigation fi rm Tough & Podrebarac LLP, says it's no surprise her colleague has won high praise. "She is known to be a phenomenal advocate, but more than that she is very easy to relate to," says Po- drebarac. "Whether she is dealing with the average Joe or a CEO of a Fortune 500 company, she has a way of making everyone feel at ease and instilling confi dence that she not only knows what she's talking about but that she'll get the job done." Tough, who was called to the Ontario bar in 1980, says she's "fl attered and humbled" by the OBA award. "I look at some of the past winners and I look at myself and I'm just thrilled," she says. It's interesting to note, however, that civil litigation wasn't necessarily on Tough's radar when she embarked potent combination of stellar advocacy skills and signifi cant contributions to the profes- sion have helped Toronto's Bonnie Tough upon her career. Commercial work was certainly in sight, an urge she followed as an articling student at Blake Cassels & Graydon LLP. But it wasn't long be- fore her focus narrowed. "It took me about a day to realize that I really was interested in the liti- gation aspects of commercial matters: shareholder rights, shareholder litiga- tion, that type of thing," Tough says. "Th at led me to litigation, and that in turn has led me to an interest in class actions and in all types of litigation." It helped that Tough benefi ted from working with the likes of Ontario Court of Appeal Justice Kathryn Feldman, who was a senior partner with Blakes' litigation group when Tough articled. She calls Feldman "a great role model for young litigators" and notes she also benefi ted from the tutelage of George Hately, now partner emeritus at Blakes, and other top litigators. One of the key lessons from her time with Feldman was a strong sense of the need for civility. "She is someone who always treated the opposition fairly, honourably, and with respect," Tough says. "And I learned that." Tough adds: "I think I'm a tough opponent. I think people respect me as an adversary. But you don't have to www.lawtimesnews.com Bonnie Tough be uncivil to be fi rm and to be tough." Judging by the long list of major cases Tough has worked on, she clearly applied the many lessons gleaned from her mentors. It didn't hurt that she also had an implacable desire to become a top- notch lawyer. For example, Tough took on a legal aid case early in her career at Blakes to gain experience. She acted for the mother of a young man who had been badly burned and won a struc- tured settlement in the case. She con- siders that victory one of her greatest professional accomplishments. "Th rough the years, I've had sporadic contact with him. He called me within the last couple of years [when he] received a lump sum of money and thanked me for everything. I felt good." Tough acted for the Canadian Hemophilia Society in perhaps her most high-profi le matter, the Commis- sion of Inquiry on the Blood System in Canada, which the federal government commissioned in October 1993 under the leadership of then-Ontario Court of Appeal justice Horace Krever. She also represented a class of hemophiliacs that See Honouring, page 12 PAGE 9

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