Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth I Where is action on SLAPP suits? n a ruling on March 1, Ontario Superior Court Justice Robert Beaudoin awarded costs to the defendant in a case for which the claims "gave rise to a reasonable suspicion" that the matter involved strategic litigation against public participation. The matter, Salewski v. Symons, involved a libel claim stemming from the financial troubles of the Sedbergh School Association, a private boarding school near Montebello, Que. One of the plaintiffs, Doyle Salewski Inc., was acting as monitor after the school's board of trustees sought debtor-in- possession financing. The defendant, James Ivor Symons, had been part of a group investigating the purchase of the school. During negotiations related to the sale, Symons sent a letter to the Office of the Superintendent of Bankruptcy Canada complaining about the other plaintiff, David Macaskill, a self-employed financial consultant retained by the monitor. In the letter, Symons alleged Macaskill was in a conflict of interest due to his previous roles with the debtor. The office responded by referencing its duty to keep a record of complaints and investigate as the superintendent determines but said it would be closing the matter. According to Beaudoin's March 1 costs ruling, the plaintiffs sought $1.2 million in damages from Symons. But Beaudoin, citing the absolute privilege afforded to Symons' complaint letters to the office, struck the claims earlier this year. In doing so, he awarded Symons $20,000 in costs. He also referred to the SLAPP issue, noting the purpose of such lawsuits is to "silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism." The case is a reminder of the ongoing wait for action on the SLAPP issue. In late 2010, a panel composed of University of Toronto Faculty of Law dean Mayo Moran and lawyers Brian MacL eod Rogers and Peter COMMENT March 12, 2012 • Law TiMes Downard released their report recommending leg- islation to deal with SLAPPs. The recommendations would see the courts hear a motion for a remedy to a SLAPP within 60 days. A defendant bringing such a motion would have to demonstrate that the matter involves the protected activity of public participation, after which the plaintiff would, among other things, have to prove the case still has merit. In the Salewski case, it's unclear whether the defen- dant would meet that test, but given that the plaintiffs launched the claim in March 2011, having such a mechanism would have resulted in a more expeditious consideration of the SLAPP issue. So while Symons ultimately prevailed with costs, a SLAPP mechanism would potentially have been of some benefit. But more generally, given the concerns over law- suits seeking to hamper legitimate public criticism, particularly in environmental matters, it's clear we do need some sort of mechanism to deal with SLAPPs. Hopefully, then, the government will quickly come up with a solution that balances the legitimate rights of plaintiffs to seek justice while protecting defendants from malicious lawsuits. It's now time for action. — Glenn Kauth T here's a war coming. It's not in Afghanistan. That war is over. It's not in Iran or Syria, either. They're too far away and too messy. It's a war where lawyers do the fighting, nobody gets killed, and Prime Minister Stephen Harper and Finance Minister Jim Flaherty get to brag about what a great job they've done firing public servants and cutting government programs. It's also one that will provide significant work oppor- tunities for lawyers. Three elections ago, Harper and Flaherty promised they'd never cut gov- ernment programs to balance the budget. But that was then and this is now. Of course, they also have a majority now. By 2014 or maybe the year after, Harper plans to have dumped up to Richard Cleroux 68,000 public servants for savings of $7.8 billion. He needs to do it. He's spending on the military like a drunken general, including up to $29 billion on his attack jets and $34 billion on his warships. There are also his fancy new prisons at several billion dollars more if the provincial attorneys general let him get away with it. That's where the lawyers come in. Harper expects he'll have a big fight on his hands with public servants and is planning to hire $16 million worth of lawyers to fight the unions. He learned a hard lesson last year when union representatives stood up against his lawyers in a series of court cases arising from the Air Canada and Canada Post labour disputes. So this is why he's spending the big bucks now, as evidenced by a tiny entry in the government spending estimates two weeks ago that almost went under the radar. It said the Harper government is planning to set up a litigation management unit over the next two years to look after employment issues and fight the unions over public-sector job cuts. It's going to cost $16 million to hire the lawyers and set up the unit. That's over and above the lawyers the federal government already has and the outside counsel it often hires. Law Times LT Masthead.indd 1 And there will be fighting. The public servants aren't going down without The Hill a battle. Their hero, NDP interim leader Nycole Turmel, proudly announced in the Commons: "It's going to be the fight of my life." Yes, it's corny, but Turmel is no slouch when it comes to standing up for unionized workers. That's why Harper needs his army of lawyers. Harper and Flaherty want between $4 billion and $8 billion in cuts that will have to come out of somebody's hide and our government services. Now here's the strange part. For someone who's always ranting and raving about cracking down on the public service, Harper has actually hired 4,000 government workers since he came to power in 2006. But Harper also dumped 6,300 public servants since he came to power and brags about saving $1.82 billion in salaries. Even if you dump public servants, someone still has to do the work. So the govern- ment usually ends up hiring workers on contract and everybody stupidly applauds and thinks there's a real saving. The person who holds the record for dumping the most public servants is former Liberal finance minister Paul Martin back in 1995 and 1996. The late Liberal senator Jean-Robert Gauthier, a bean counter of great skill, discovered that Martin had chopped $5 billion in public-service salaries only to spend $7 billion in contracted private-enterprise workers. Some of them did the work just as well; others didn't. Gauthier found a private-enterprise worker sitting at the same desk in the same fed- eral tax office where he had worked as a public servant before he took his new job. The government had generously given him back his old telephone. Revenue Canada, of course, still needed to collect taxes. There's no telling who's going to win this latest battle with labour. It also depends on what LT legal talent the unions can scrape together. Union lawyers are no slouches, either. uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. Thomson Reuters Canada Ltd. 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