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November 21, 2011

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LAW TIMES • NOVEMBER 21, 2011 An online resource 1.800.263.3269 Focus On ENVIRONMENTAL LAW Where is anti-SLAPP law? Intimidating lawsuits a major issue in environmental field BY JUDY VAN RHIJN For Law Times (SLAPP) has come and gone with no sign of the recommended legislation to prevent such lawsuits. Barry Weintraub, a partner at Rueter Scar- T gall Bennett LLP who was chairman of the Ontario Bar Association working group on anti-SLAPP legislation, describes the crux of the issue in two sentences: "People who have an interest in an outcome use and abuse the litigation process by launching lawsuits against opponents of the project. Th ey use the cost of litigation as a means to shut them up." Dianne Saxe, public aff airs liaison for the environmental law section of the OBA, states categorically that people shouldn't be able to sue someone just for disagreeing with matters of public policy. "At the moment, people can do that and, more to the point, they can threaten people." An Ontario Municipal Board hearing in 2009 fi rst raised the spectre of SLAPP suits. Th e case involved a request for a large costs award by a developer against a citizen's group related to a development at Big Bay Point in Innisfi l, Ont. Th e request ultimately failed, but there were 17 days of argument. Critics cite the case as having had an intimidating eff ect on expressing public opinion. A number of jurisdictions have introduced legislation to make it more diffi cult for this type of action to suc- ceed. Th e models all deal with the same principle but have diff erences in procedural steps, tests, and who bears the onus. At present, there's legislation in British Colum- bia, Quebec, parts of the United States, and Australia. Th e Uniform Law Conference of Canada also adopted the Uniform Prevention of Abuse of Process Act in 2010. Th e same year, Ontario's attorney general created an advisory panel on SLAPP suits headed by dean Mayo Moran of the University of Toronto Faculty of Law to advise on "how the Ontario justice system may prevent the misuse of our courts and other agencies of justice, without depriving anyone of appropriate remedies for expression that actually causes signifi cant harm." Be- sides receiving submissions from many individuals and organizations, the panel was referred to the 2008 report of the environmental commissioner of Ontario that stressed the need for legislation to end litigation designed to repress public participation. he anniversary of the release of the re- port of the advisory panel on strategic litigation against public participation Th e OBA working group was one organi- 'We all have an interest in encouraging participation,' says Barry Weintraub. "Th e environmental area is an area where there are a number of people who, in an organized and systematic basis, like to have a say," says Weintraub. "It's an issue people care about a lot. Where there is an ideological divide between citizen groups and industry, this sort of clash happens very often." Saxe agrees. "It's particularly important in environ- mental matters but it is not specifi cally designed for tree huggers," she says. "It is designed for any people who take part in a public action." Saxe cites the example of the anti-wind lobby that threatened libel actions against proponents who dis- agreed with it during the recent election campaign. "In my experience, these are the people threatening law- suits. Th ere are public health organizations that have been threatened. Th e legislation can be used in a num- ber of diff erent ways." A law may also serve to protect lawyers and govern- ment authorities. Th e panel viewed a bulletin from Law- PRO that cautioned lawyers engaged in public advocacy work that they might need supplementary liability insur- ance because of the increasing risk of SLAPP litigation. Th ere was also evidence that 64 municipalities in On- tario had passed resolutions in favour of such legislation. "We all have an interest in encouraging participa- tion," says Weintraub. "Whether the discouragement happens on either side, it is equally wrong in my view. It's really about the process. Th e legislature needs to try and send a clear message to this eff ect." zation that made submissions on the appro- priate focus of the proposed legislation. "We had heard from a broad range of interested parties and came to the consensus that what was needed was an early mechanism in a pro- ceeding that gives you the ability to strike out a claim that lacks merit and is designed to prevent participation," says Weintraub. "So there is a threshold test upholding demo- cratic principles that will get rid of cases that clearly have no merit. Th is will enable the de- fendant to go to court early and get rid of it." Th e panel adopted all of those recom- mendations in its report to the attorney gen- eral on Oct. 28, 2010. It noted that while freedom of expression is the main principle at stake, it's also important to avoid expend- ing public resources from the court system on litigation that's not of substantial merit and is contrary to the public interest. Th e panel stated the belief that public participa- tion is so important that the government should take ac- tive steps to promote it by enacting targeted legislation. In recommending a particular procedure, the panel said: "It is essential that remedies against inappropri- ate litigation aff ecting public participation be avail- able quickly. Th e defendant may have few resources and little expertise in legal matters. Th e intimidation eff ect of a lawsuit for a large amount and the actual costs of fi ghting it should be minimized. If the plain- tiff fails to satisfy the court as to the substantive merit of the plaintiff 's case, the action should be dismissed with costs on a full indemnity basis." But what the government will do on the issue is un- clear. "Now the ball is back in the provincial govern- ment's court," says Weintraub. "Th e election intervened, so we will see if it makes it back on the priority list." For its part, the Ministry of the Attorney General says it con- tinues to explore options and consider the recommenda- tions of the advisory panel. Saxe intends to write to the new attorney general, John Gerretsen, on behalf of the OBA to ask that he move forward on the issue. She agrees with Weintraub when he says that the legislation won't be of importance solely to environmental issues. "It's important to democracy," says Weintraub. "It's good to have an open public policy-making process that allows people to have their say without the fear that they will have to spend their life savings defend- ing a court case." Case opens debate on self-incrimination BY JUDY VAN RHIJN For Law Times A s laws and regulations on re- porting environmental off ences emerge, the Charter of Rights and Freedoms has introduced the pros- pect of a respite from prosecution if the disclosure was the result of statutory compulsion. In R. v. Soules, the Ontario Court of Appeal ruled in favour of excluding evidence if authorities have stripped the party providing it of the right to silence. Th e case arose from the colli- sion of four vehicles in Belleville, Ont., after which Stephen Soules identifi ed himself as a driver because he believed he had to do so by law. Soules subse- quently failed a breath test. Th e key issue was whether state- ments compelled under the Highway Traffi c Act were admissible in a crimi- nal trial. Specifi cally, were the state- ments admissible for the purpose of es- tablishing that an offi cer had grounds to make an approved screening device demand or does doing so violate the right against self-incrimination under s. 7 of the Charter? Dianne Saxe of Dianne Saxe Profes- sional Corp. in Toronto notes that this has been a question since the Charter came into eff ect. "Prior to the Charter, there was a very diff erent approach. If you were compelled by the state to an- swer, traditionally answers were always used. After the Charter, the question came in: can you still force people to answer and then use the answer for prosecutions? "Until now, the answer has been that you can't in most criminal off ences but you can in regulatory decisions. Now here we have the Court of Appeal saying that you can compel someone because you have to have the answers but you can't use that same answer to prosecute. If that's true under the Highway Traffi c Act, then it's reasonable that it should be equally true for environmental law." www.lawtimesnews.com Th e government has beefed up the mandatory disclosure provisions of the Environmental Protection Act and the Water Resources Act in recent times, but Saxe believes the decision is a direct precedent for prosecutions under other legislation as well. "Th ere are a whole series of regulatory off ences, such as for occupational health and safety," she says. Alan Gold of Alan D. Gold Profes- sional Corp. in Toronto represented Soules. He says the ruling has defi nitely broadened the protection against self- incrimination. "Th e ruling applies any time that information has been com- pelled by statute or regulation then used See Government, page 10 PAGE 9

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