Law Times

Law Times • November 9, 2015 Page 3 www.lawtimesnews.com Lawyers debate impact of new SLAPP bill BY NEIL ETIENNE Law Times fter years of discussion, the pro- vincial government has passed the Protection of Public Par- ticipation Act in an attempt to protect freedom of speech and curtail the use of strategic litigation against public participation. While the legislation has been in the works for years, lawyers still have differ- ing opinions on the merits and effect of Bill 52. "This is largely a feel-good legislation because Ontario has not seen a history of SLAPPs," says Jeff Davies, a lawyer at Da- vies Howe Partners LLP who often acts for development companies. While Toronto corporate litigator Bruce McMeekin thinks the bill will ac- complish its goals of hindering such liti- gation tactics, he has his criticisms as well. "First, the bill will apply only to law- suits commenced on or after the bill's first reading on Dec. 1, 2014. It offers no protection to defendants SLAPP'ed prior to this date. Second, most SLAPPs are commenced by organizations which can absorb the costs associated with a SLAPP dismissed under the bill. If the bill had provided that officers and directors could be personally liable for those costs, it would have been a stronger deterrent to SLAPPs," he says. According to the Ministry of the Attor- ney General, Bill 52 amends the Courts of Justice Act, the Libel and Slander Act, and the Statutory Powers Procedure Act in an effort to allow "the public to participate more freely in public discussions without fear of retribution." The act includes a new fast-track re- view process that allows courts to quickly identify and deal with strategic lawsuits and creates new protections for people from defamation lawsuits when they air their concerns to the public through a third party, such as in a newspaper or a blog. It also establishes procedures at boards and tribunals to allow parties to make written submissions about legal costs instead of in person. Concern about the issue gathered steam in 2010 following environmental protests against construction projects in southern Ontario, including a con- troversial development in Innisfil, Ont. In that case, residents from the com- munity who opposed the Big Bay Point resort at the Ontario Municipal Board found themselves subject to a $3.2-mil- lion costs claim. The board turned down the requested payout, but groups such as Environmental Defence and the prov- ince's environmental commissioner at the time, Gord Miller, began to speak about the need for legislation to deal with the is- sue. Led by former University of Toronto Faculty of Law dean Mayo Moran, an ex- pert review panel created by the province began work on recommendations to cur- tail such lawsuits. "I think the problem with the bill is it funnels all slander and libel claims in the tribunal setting into the penalty box. There are so very few slander and libel claims associated with administrative law that it can't be presumed that they are all without merit," says Davies, citing his concern about the costs of the court mo- tions and potential delays of development projects. "So the penalty for exercising one's democratic rights of issuing a lawsuit are quite severe. The result is that proponents of undertakings will become overly cau- tious about bringing justifiable lawsuits because the cost is so high." In his view, the bill limits access to jus- tice and will have other consequences as well. "On the other hand, I think it will encourage a new kind of environment for people making unjustifiably derogatory statements who will enjoy new scoff law status," says Davies. "There's going to be a lot of baiting. The groups that sometimes oppose proj- ects know that they are not going to win in the end and they're trying to delay, so under this legislation, if they can bait the proponent into suing them by saying ter- rible things, then they're the winner be- cause it delays the project." Rick Smith, executive director of the Broadbent Institute and an environmen- talist involved in the Innisfil matter, says the new legislation is "a powerful state- ment" on people's right to air legitimate concerns. "It's a response to a real issue; this is not an imagined problem. There was a series of cases where citizen groups, environ- mental groups were dragged through the court system and drained of significant resources clearly in an attempt to scare them off further advocacy," he says. McMeekin says the bill will affect the advice lawyers give to anyone contem- plating a defamation lawsuit because "the scope of the bill is wide and the threshold for dismissing the lawsuit is low." McMeekin says that if a defendant demonstrates that the lawsuit arises from an expression related to the public inter- est, the plaintiff can proceed only if it es- tablishes that the action has substantial merit and it satisfies the court that the likely harm to the plaintiff is so serious that the public interest in letting the case proceed outweighs the public interest in protecting freedom of expression. "The significance of this bill is that the legislature has clearly identified this as a problem and outlined a regulatory mechanism to try and ensure that these vexatious lawsuits are not pursued," says Smith. LT NEWS NEW VERSION PEEL BACK THE LAYERS WITH CASE LOGISTIX® One of the most intuitive document-review tools available, Case Logistix® will help your discovery teams organize, analyze, and produce anything from paper to Electronically Stored information (ESI). And now you can supercharge your speed and accuracy with a new user interface, advanced search, and analytics. For more information, please visit carswell.com/caselogistix Or call 1-866-609-5811 00228WI-49494 'This is largely a feel-good legislation because Ontario has not seen a history of SLAPPs,' says Jeff Davies. A Photo: Robin Kuniski

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