Law Times

Law Times • march 14, 2011 FOCUS PAGE 11 Lawyers await gov't response to SLAPP panel Moran report recommended legislation to address controversial lawsuits BY JULIUS MELNITZER For Law Times L ast year, a panel chaired by University of Toron- to Faculty of Law dean Mayo Moran recommended that the government enact leg- islation to address strategic liti- gation against public participa- tion lawsuits. While the gov- ernment has so far announced that it's reviewing the recom- mendations, lawyers believe it will take some action. "My personal view is that we're likely to see some such legislation in Canada," says Marko Vesely of Lawson Lun- dell LLP's Vancouver offi ce. "I certainly see interest on the part of legislators." SLAPP, the acronym for such lawsuits, usually involve actions initiated by corporate defendants to stifl e what may be meritorious criticism against them. But the issue isn't new. Measures to address them have existed in the United States for about three decades, where roughly half of the states have such laws. British Columbia had anti-SLAPP measures for a few months in 2001 before an incoming Liberal government overturned a last-minute deci- sion by its NDP predecessor to enact such legislation. In 2007, the Quebec legis- lature commissioned a group of academics to examine the issue. Although their report cited just three instances of what might be SLAPP suits in the province during the period covered by their investigation, the justice minister followed up with broadly worded legis- lation aimed at codifying judi- cial power to curtail abuse of process in general. Th e govern- ment added the provisions to the Quebec Code of Civil Pro- cedure in 2009. Th e bill's provisions give the courts new powers and codify other pre-existing ones, includ- ing: • Th e power to declare an ac- tion abusive on the request of the parties or even on the court's own initiative. Abuse may consist of a frivolous or dilatory claim or pleading or bad faith in proceeding exces- sively, unreasonably or in an attempt to pervert the ends of justice, particularly when aimed at restricting citizens' freedom to express themselves in a public debate. • Th e power to dismiss an ac- tion, strike or amend a sub- mission, reject a pleading or refuse to allow an examina- tion in cases of abuse. • Th e power to order costs in favour of a party whose fi nancial situation would prevent it from properly presenting its case. • Th e power to order dam- ages, including punitive ones, in addition to costs as compensation for harm suf- fered. • Th e power to impose liabil- ity on directors and offi cers of a corporation in cases of abuse. • Th e power to dismiss all or part of any action that's un- founded in law. Ironically, during the two years since its enactment, there has been little resort to the Quebec legislation in SLAPP suits. Indeed, the law has most often been a tool in the case of frivolous proceedings or plead- ings, including medical mal- practice and other professional negligence matters. But those in favour of SLAPP legislation in Ontario note that E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Suit e 900 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 evlitigation@rogers.com OntariO Lawyer's PhOne BOOk 2011 Your most complete directorY of ontario lawYers, law firms, judges and courts with more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in ontario. subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: • more than 26,000 lawyers • more than 9,300 law firms and corporate offices fax and telephone numbers, e-mail addresses, • office locations and postal codes includes lists of: federal and provincial judges • • Vlit_LT_Mar17_08.indd 1 3/13/08 11:55:47 AM Perfectbound • Published december each year on subscription $66 p/c 0514140999 one time purchase $69 p/c 0514010999 issn 0845-4832 multiple copy discounts available prices subject to change without notice, to applicable taxes and shipping & handling. federal courts, including a section for federal government departments, boards and commissions • ontario courts and services, including a section for provincial government ministries, boards and commissions • • the institute of law clerks of ontario small claims courts • miscellaneous services for lawyers Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation while the province already has provisions for dealing with frivolous or vexatious actions, they've never served as anti-SLAPP measures. "Th e justifi cation for an- ti-SLAPP measures is greater in the U.S. because there are fewer safeguards against rampant litigation and be- cause the existence of the First Amendment guaran- teeing free speech makes it a better fi t," Vesely says. But Vesely is concerned that anti-SLAPP legislation won't be properly targeted. "It's very diffi cult to defi ne exactly what the mischief is other than referring to it as strategic litigation against public participation, and that's very diffi cult to op- pose in principle," he says. "But laws of this kind must ensure that businesses are al- lowed to defend their reputa- tions and that legitimate claims in defence of reputation aren't caught, even unintentionally, by anti-SLAPP provisions." Jeff rey Davies of Davies Howe Partners LLP, who acts for their suit. "Th at means the plaintiff will have to prove a negative, and things just don't work that way," he says. Davies is also concerned 'My personal view is that we're like- ly to see some such legislation in Canada,' says Marko Vesely. developers in land-use matters, is of the view that the devil is in the details. In particular, he takes ex- ception to the Moran panel's rec- ommendations to place a reverse onus on plaintiff s defending an anti-SLAPP allegation against about the panel's recommen- dation that the proceedings in the context of which the al- leged defamatory statements were made be stayed pend- ing resolution of the SLAPP allegation. "Th at's an incen- tive for individuals to bait the dickens out of companies in the hope that they'll get mad and sue for defamation in an action where the defen- dants will raise the SLAPP defence so as to stay ongo- ing administrative or other proceedings such as Ontario Municipal Board hearings dealing with development approvals," he says. Like Vesely, however, Da- vies isn't optimistic that the Ontario government will reject the Moran panel's recommenda- tions. "Remember that there ex- ists a powerful anti-development lobby that the government wants onside," he says. To advertise in an upcoming issue, contact our sales team: Karen Lorimer 905-713-4339 karen.lorimer@thomsonreuters.com Kimberlee Pascoe 905-713-4342 kimberlee.pascoe@thomsonreuters.com www.lawtimesnews.com OLPB - 1/3 page 3X.indd 1 Narrow 1/8 - 2X.indd 1 3/8/11 2:43:46 PM 2/24/11 9:24:53 AM CANADA LAW BOOK®

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