Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Politicians deserve slap for SLAPPs Morri s v. Johnson from the Ontario Superior Court. Former Aurora, Ont., mayor Phyllis Morris, who sought $6,000 in injunctive relief from a number of defendants allegedly involved in online postings that were critical of her in the weeks leading up to the 2010 municipal election, must now pay them more than $21,000 in legal costs. Th at' M emo to municipal politicians: if you're going to try to silence critical commentary about yourself through a lawsuit, don't do it during an election campaign. Th at' s a key lesson coming out of last week's ruling in according to the Oct. 22 ruling from Master Th omas Hawkins. Th e matter centred around an article posted by local commentator s Richard Johnson on the Auror a Citizen web site on Aug. 20, 2010. Th e article, which was critical of Morris, prompted a number of readers to write more than 50 comments in response. Th e local council then passed a resolution that in practical terms authorized the town solici- tor to retain external legal counsel in order to launch a defamation ac- tion with the municipality paying the legal fees. Morris the n proceeded with a notice of action rather than a statement of claim on Oct. 8, 2010. Morris discontinued the action last year, but the matter arose again last week with Hawkins' ruling on costs. In ruling against Morris, he was critical of the way she proceeded, especially the fact that she launched the action without following the usual step of issuing a demand letter to the defendants. "In an action for damages, it is unusual for the plaintiff I to claim a specifi c amount of damages in the notice of action," Hawkins noted, adding it appeared Morris wasn't willing to wait and see if a demand letter would silence her critics before issuing a statement of claim. "In my view, mayor Morris wanted to hit [the de- fendants] quickly and hard in order to silence them as her critics sooner rather than later in the weeks leading up to the Oct. 25, 2010, municipal election," he wrote before concluding the action amounted to strategic litigation against public participation (also known as a SLAPP). It' to municipal offi cials that they'll pay for trying to intimidate people through litigation. Let' COMMENT OctOber 29, 2012 • Law times provincial government follows up with long-awaited anti-SLAPP legislation that will make it easier for de- fendants to put a stop to such lawsuits earlier on. — Glenn Kauth s a good ruling that sends a powerful message s hope the one might label the Conservative govern- ment' n 1930, W.C. Sellar and R.J. Yeatman wrote 1066 and All Th at, a light-heart- ed and satirical look at English history. In this bicentenary of the War of 1812, history as 1812 and All Th at, although the results are anything but light-hearted or satirical. According to Prime Minister Stephen Harper' s eff orts to reinterpret Canadian "helped defi ne who we are today" and makes 2012 a time to "commemorate our proud and brave ancestors who fought and won against enormous odds." Th e prime minister isn't wrong to ob- s offi cial message, the war pact, who exactly those "brave ancestors" were and who won may lead to uncom- fortable answers for mythmakers. A British offi cer remarked in 1813 "how s im- Shattering the myths of the War of 1812 That's (yes, you read that right). Th ey weren't keen to join the militia to make war on their cousins in New York and Michigan. But neither were the British and other settlers who had devel- oped many ties with Ameri- cans in the border regions and genuinely admired the rapid economic development in the United States even as they mostly deplored the country' political system. Hundreds of people fl ed Upper Canada s serve that the War of 1812 had a signifi - cant impact, especially in Ontario where the bulk of the land war took place. But for those who probe the nature of the war' one's own hearth and fam- History Philip Girard uncomfortably like a civil war" the confl ict was, a statement that gave U.S. scholar Alan Taylor the title to his highly readable 2009 study Th e Civil War of 1812. Th is was es- pecially so in Upper Canada, where the so-called late loyalists made up 60 per cent of the population. Th ese were Americans who had arrived in the 20 years before the war in search of cheap land and lower taxes Law Times to avoid militia service, a move that trig- gered confi scation of their lands, while many thousands sat on the fence. To overawe the disaff ected, the British com- mander charged a number of marauders with treason and hanged eight of the con- victed at Burlington Heights. Once dead, their bodies received the traditional mu- tilations reserved for traitors: disembow- elment, quartering, and decapitation with the heads impaled on stakes for display. It' not exactly the stuff of He ritage Minutes. In the end, in Taylor' s depredations of undisciplined U.S. soldiers during their occupation of various parts of southern Ontario that fi nally converted a lukewarm populace into a body anxious to repel the invader. Th e desire to preserve s account, it was the the War of 1812 encouraged "a sharper distinction between Upper Canada and the United States" and resulted in "distinct national histories on both sides of the border, ily, not loyalty to abstractions like constitutions or republics, turned the tide. Taylor' s conclusion, that Canadian scholars are more ambivalent on this point. Historian Jane Errington admits that the war generated more of a sense of pride and community among Upper Ca- nadians but argues that religion and the settler experience were more important to their identity than any sense of nascent nationhood. She notes how quickly the leading residents of Upper Canada moved aſt er 1815 to re-establish the cross-border economic and social ties that had been so important before the war. And who won the war anyway? If you're for the prime minister in sup- port of his offi cial message. But curious about the answer, you might want to view an exhibit currently on display at the Canadian War Museum. It is arranged in a circle with four quadrants, one for each of the major combatant groups: na- tive peoples, the British, the Americans, Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ................... Michael McKiernan Copy Editor ...................... Mallory Hendry CaseLaw Editor ................. Adela Rodriguez Art Director ...................... Alicia Adamson Production Co-ordinator ............. Catherine Giles Electronic Production Specialist ....... Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com " might be fodder and the Canadians. It outlines the goals of each group and describes the major events of the war from their perspective. Th is multifaceted approach allows the viewer to appreciate the war as much more than a two-sided win-or-lose situation. Th e exhibit makes clear that all three European groups mostly achieved their war aims. Th e British kept their colonial stake in British North America without having to divert too many troops from the war with Napoleon in Europe. Th e Cana- dians managed to stymie their southern neighbours. Th e Americans showed that a republic could wage a war and not fall apart and managed to break up the alliance between the British and native Americans. Only for the native peoples was the war a catastrophe. South of the border, native Americans were at the mercy of the repub- lic without their British allies. North of the border, the strategic role of Canadian First Nations declined in the new era of peace. So perhaps the prime minister wasn't so far off aſt er all when he said that the War of 1812 "helped defi ne who we are today. " LT Philip Girard is a legal historian and pro- fessor at Dalhousie University' School of Law. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is philip.girard@dal.ca. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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