Law Times

Law Times • June 17, 2013 Page 7 COMMENT Too much politics, too little management A nd another one bites the dust. A romantic might say former premier Dalton McGuinty fell on his sword and resigned his seat last week because he'd lost his heart for the fight and felt his parting would take the heat off his new leader. A cynic might say Premier Kathleen Wynne's slip is showing and her calculating, ruthless side is taking over from the great collaborator brand she has thus far projected as McGuinty had become a liability and had to go. McGuinty's resignation comes as he faces pressure to testify again at a legislative committee about who gave the order to delete e-mails pertaining to the cancelled gas plants, a directive more recently found by privacy commissioner Ann Cavoukian to be in contravention of the law even though there are no consequences prescribed in the legislation. Nonplussed, Wynne says McGuinty's departure still leaves the door open for him to testify and to talk with the Ontario Provincial Police for their investigation. But it means another body tossed over the side of a listing ship, something that suggests she's cutting the deadweight dragging on her survival if not her dreams of winning the next election. Wynne now has to call three byelections. The question that lingers is whether appliances or storage garages to Wynne had convinced or signaled to McGuinty and former Queen's properly install and maintain a carbon monoxide detector. key cabinet ministers Chris Park Wynne even supports it in Bentley and Dwight Duncan principle, telling the Ontario that they should leave. Association of Fire Chiefs last What happens next demonth: "Mandatory carbon pends on what Wynne and monoxide detectors are someNDP Leader Andrea Horwath thing we need to make happen." decide is politically expediThe rejection last week, ent for their de facto coalition however, was nothing persongovernment. al. It was just politics. Both are making election Ian Harvey "I'm disappointed because plans. Wynne may want to go we'd been led to believe by to the polls because if she stays unelected for too long, she risks alienating both the government and NDP house an electorate that have had no say in her leaders we would get through second and instalment as premier. Horwath may want third reading to get this passed," says Haran election because her own caucus and deman, a Progressive Conservative first supporters are growing uncomfortable elected in 1995. At the last minute, however, both Horwith propping up a scandalized governwath and Wynne said no and the only apment lest some of the stink stick to them parent reason, he says, is that neither party during a campaign. Meanwhile, the gap in governance con- has something they want to bargain with. What's common in these matters, he says, tinues to widen because of petty politics. While the budget bill passed before is that each party agrees to support somethe legislature adjourned for the summer, thing the other party wants so everyone Oxford MPP Ernie Hardeman was unsuc- advances their agenda. In effect, they're pocketing the bill as a cessful in his fifth attempt to get a private bargaining chip for later in a game where member's bill through third reading the politics trumps safety. Again, that's politics same day. His bill would require the owners of as usual. Carbon monoxide deaths aren't residential buildings with fuel-burning insignificant. Some 414 Canadians died of carbon monoxide poisoning from 2000-07 with 87 of the cases in Ontario. Since 2008, the bill has failed three times at second and third readings and twice when the session ended and it died on the order paper. "But I'll be back," says Hardeman. You have to admire that tenacity. When will he get another chance? It may come at Christmas or maybe not at all because it's just politics. There's some discussion Wynne and Horwath could let their de facto coalition drift on through to the spring 2014 budget, but that's a long shot. More likely over the summer and into the fall, either Horwath or Wynne will be looking for a signal that one or the other is going pull the plug on their agreement. Then the hostilities will resume. It's nothing personal. It's just politics. Just as Hardeman's rejection wasn't personal, it's all just politics as usual. Sadly, that's been the hallmark of the last two years: too much politics and too little management and accountability. LT Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. Anti-SLAPP bill deserves skeptical eye BY MEGAN LEM For Law Times T query whether there are really enough SLAPPs in Ontario's courts to warrant such legislative attention. A more insidious problem, and one that most advocates of bill 83 arguably tend to forget, is the very real risk that some of the putative victims of SLAPP lawsuits are in fact the "venomous activists" referred to in the Law Times article last week. By tipping the existing checks and balances in favour of such activists and protesters, will bill 83 actually impede the orderly development of the province in ways the government might not have considered? An article on bill 83 in the June 3, 2013, edition of The Globe & Mail singled out the developer of a lakefront subdivision as a potential SLAPP plaintiff. While readers may or may not be sympathetic to the real estate development industry generally, bill 83 goes beyond subdivisions and condominiums. Indeed, any project in any community may feel the wrath of venomous activists, including, for instance, new hospitals or expansions that may bring much-needed beds and specialized medicine to a region; new junior schools and daycare facilities in chronically underserviced neighbourhoods; mining and other resource plays that will bring widespread prosperity and increased standards of living to remote and underserviced portions of the province; factories that will help restore the province's industrial capacity and bring jobs back to that sector; and any of the infrastructure and alternative energy works that may improve living conditions for generations to come. The list goes on, and each of these projects, big and small, will be that much more vulnerable to the local lobbies that inevitably oppose all such projects, regardless of the greater overall good they can bring to their communities. Alas, it's a balancing act. While the government may want to curb the threat of SLAPPs, it must also be careful not to correspondingly encourage those who oppose any development. Again, the point here isn't to endorse SLAPPs. Frivolous lawsuits are an abuse of process and should never be condoned whether they're intended to suppress public participation or not. But if existing remedies are sufficient for the task and SLAPPs aren't epidemic, wouldn't the government be better to devote scarce space on the legislative agenda to matters other than this type of legislation? LT u SPEAKER'S CORNER he recent introduction of bill 83 by the provincial government has received its fair share of praise, including coverage and editorial support from within the pages of Law Times (see "SLAPP bill welcome," June 10, 2013). Bill 83 amends the Courts of Justice Act to limit defamation lawsuits initiated by plaintiffs, who are often real estate developers, that are without any merit and launched despite valid defences on the part of the defendants, who are often local ratepayer groups, environmental organizations, and historical and architectural preservationists, all with the intent of silencing or suppressing public criticism. These defamation actions are referred to colloquially as strategic lawsuits against public participation, and people are touting bill 83 as anti-SLAPP legislation. Quebec is the only Canadian province with anti-SLAPP legislation already on its books, although such laws are more common in the United States. Of course, by labelling such lawsuits as inherently frivolous and without merit, all SLAPP plaintiffs as big bad companies seeking to obstruct public input, and defendants as innocent and powerless victims, the normative position becomes predetermined. Such characterizations make anti-SLAPP legislation the corporate equivalent of anti-bullying legislation. Viewed as such, it's not difficult to see the widespread popularity of bill 83. Like most feel-good bills that come before the government, there may be some benefit to looking at bill 83 with a more skeptical eye. Beneath the intuitive good of anything purporting to be anti-bullying legislation lies any number of reasons why bill 83 may ultimately be unnecessary, premature, and perhaps even destructive to the current social order. Bill 83 requires an early judicial determination of whether or not a given defamation lawsuit is, in fact, a SLAPP. While it's laudable to have such a mechanism in the judicial system, query whether the current motion for summary judgment does just that. Such motions dismiss frivolous, non-meritorious actions before proceedings drag on until trial. If that's the case, is there really a need for express anti-SLAPP legislation when a motion for summary judgment will do pretty much the same thing? Alternatively put, how much different would a SLAPP motion under bill 83 be than a motion for summary judgment? Likewise, bill 83 awards defendants full indemnity costs (and, in extreme circumstances, punitive damages) when the court deems a defamation lawsuit to be a SLAPP. Again, while laudable, the cost scheme under bill 83 isn't that far off from the costs typically awarded to defendants who succeed in proving, on a summary judgment motion, that the lawsuit against them was wholly without merit and an abuse of process. Even punitive damages would be available under the current system by simply counterclaiming in tort for abuse of process. As quoted in Law Times last week (see "Government cracks down on SLAPPs"), Ministry of the Attorney General spokesman Brendan Crawley noted that "the law provides a number of remedies for questionable claims. There are provisions that allow the courts to dismiss such suits in the common law as well as in the Courts of Justice Act and in the Rules of Civil Procedure. However, these remedies are rarely exercised in practice." If, in fact, all of the remedial tools necessary to combat SLAPPs are already available under the judicial framework, isn't the more efficient approach to curbing such lawsuits simply to sensitize the judiciary to the potential for them and the existing remedies at judges' disposal for dealing with plaintiffs? Mayo Moran, dean of the University of Toronto Faculty of Law and author of the report leading to bill 83, suggests "the courts are good at distinguishing between legitimate claims and spurious ones." If so, why not just allow the courts to deal with SLAPPs using existing remedial tools rather than creating new legislation permitting them to do what they can already do? Furthermore, it's important to remember that there are, surprisingly, a number of valid defences to defamation lawsuits. Absolute truth is always a complete defence, as are the doctrines of qualified privilege and fair comment. In light of the foregoing, I wonder how frequently real estate developers and others are using defamation lawsuits to stymie public criticism of their projects. Anecdotally, SLAPP defamation cases in Ontario jurisprudence seem somewhat rare. While anti-SLAPP legislation may have some role to play in the far more litigious United States, www.lawtimesnews.com Megan Lem is a student at Western Law.

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