Blocking+Public+Participation.Pdf

BLOCKING PUBLIC PARTICIPATION

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THE USE OF STRATEGIC LITIGATION TO SILENCE POLITICAL EXPRESSION

Byron Sheldrick

Sheldrick_Final_Proofs2.indb 3 14-01-29 12:28 PM This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Wilfrid Laurier University Press acknowledges the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication

Sheldrick, Byron M., author Blocking public participation : the use of strategic litigation to silence political expression / Byron Sheldrick.

Includes bibliographical references and index. Issued in print and electronic formats. ISBN 978-1-55458-929-6 (pbk.).—ISBN 978-1-55458-930-2 (pdf).— ISBN 978-1-55458-931-9 (epub)

1. Political participation—Canada. 2. Frivolous suits (Civil procedure)—Canada. I. Title.

KE4425.S44 2014 342.7108’54 C2013-905911-3 KF4483.A8S44 2014 C2013-905912-1

Cover design by Martyn Schmoll. Front-cover image from iStockphoto. Text design by James Leahy.

This book is printed on FSC recycled paper and is certified Ecologo. It is made from 100% post-consumer fibre, processed chlorine free, and manufactured using biogas energy.

Printed in Canada

Every reasonable effort has been made to acquire permission for copyright material used in this text, and to acknowledge all such indebtedness accurately. Any errors and omissions called to the publisher’s attention will be corrected in future printings.

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Sheldrick_Final_Proofs2.indb 4 14-01-29 12:28 PM In memory of my father Melville A. Sheldrick

Sheldrick_Final_Proofs2.indb 5 14-01-29 12:28 PM Sheldrick_Final_Proofs2.indb 6 14-01-29 12:28 PM Contents

Acknowledgements ix

1 slapps: Courts, Democracy, and Participation 1 2 slapps: Balancing Law and Democracy 11 3 slapps in Canada 39 4 slapps Come to Parliament 63 5 The Regulation of slapps 89 6 Resisting and Defending against slapps 123 7 Final Thoughts 141

Appendix: Legal Resources 149 Notes 151 Works Cited 153 Index 165

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The inspiration for this book came from a conversation with my son one evening as we watched the national news. It had just been announced that Prime Minister Stephen Harper was suing the Liberal Party of Canada, as well as the leader of the party and several other members of Parliament, over comments published on their website in the so-called Cadman affair. My son turned to me and said, “He can’t do that, can he?” The answer, of course, was that “well, yes, he can.” The specific case fell outside of the scope of parliamentary privilege, and there was no legal barrier to it. At the same time, I shared my son’s discomfort with the notion that political issues between the parties could lead to litigation. This led to research into the scope of parliamentary privilege that was presented in 2009–10 at the annual conferences of the Atlantic Provinces’ Political Science As- sociation and the British Association of Canadian Studies. That research forms the basis of Chapter 4 of this book. It concluded that our current structures of parliamentary privilege are ill suited to modern political practices. Lawsuits like the Prime Minister’s allegations against the Liberal party, I argued, should be understood as examples of strategic litigation against public participation. This, in turn, led to the observation that this was a relatively ignored topic in Canadian political science and that a fuller book-length examination of the topic would be a timely addition to the academic literature on Canadian public interest law. In pursuing a major book project, one requires the support of a collegial and intellectually stimulating environment. Accordingly, I need to thank

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my colleagues at the University of Guelph for creating a rich and dynamic environment for intellectual inquiry. In particular, thanks go to Troy Rid- dell and Dennis Baker, who share a commitment to studying the intersection of law and politics. Even though we might disagree about much, they are wonderful colleagues and I am proud to count them among my good friends. I would also like to thank Candace Johnson, Craig Johnson, Carol Dauda, David Macdonald, Tim Mau, Ian Spears, Jordi Diez, Janine Clark, Tamara Small, and the rest of the Department of Political Science at Guelph for their friendship and support. And I would like to thank my staff: Debbie Bowie, who keeps my life organized and without whom the department simply could not function; and Geri McCauley and Renée Tavascia, who both do such fabulous jobs. I also need to thank Laura Maclean, a student in our Environmental Governance program who was an invaluable research assistant. I also want to express my appreciation and thanks to Dr. O.P. Dwivedi, who sadly passed away shortly after this book was completed. O.P. epitomized what it is to be a scholar in the tru- est sense of the word. He was a remarkable man and he is greatly missed. This book was written while on a research leave after the completion of my first term as Chair of the Department of Political Science at the University of Guelph. That leave was spent as a visiting scholar in the Department of Political Science at Memorial University of Newfoundland in St. John’s. I owe a particular debt to David Close, who facilitated and supported my coming to Memorial. I also need to thank Luke Ashworth, Head of Department at MUN, who provided me with office space and resources, but kindly made no real demands of me. Luke was working on his own manuscript throughout the year, and his support and encouragement were greatly appreciated. My time at MUN provided me with the space and time to read, think, and write. As anyone who has served as chair of department knows, these are resources that are in scare supply while dealing with the administrative realities of university life. Memorial University, St. John’s, and Newfoundland now hold special places in my life, and I hope that I am able to maintain my connection to them long into the future. Special thanks to Russ Williams, Amanda Bittner, Matt Kerby, Alex Marland, Miriam Anderson, Dimitrios Panagos, Scott Mat- thews, and Kelly Blidook. You were fabulous colleagues during my year in Newfoundland, and I greatly value your friendship. I owe a huge debt to Ryan Chynces, Brian Henderson, Lisa Quinn, Blaire Comacchio, and all the staff at Wilfrid Laurier University Press for their support, patience, and encouragement, as well as the anonymous

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reviewers of the manuscript for their very helpful comments. Their contri- butions helped make this a better book than it otherwise would have been. I also need to thank Rodolphe Devillers from the Department of Geo graphy at MUN. While Rodolphe was enjoying his own research leave, my family was able to rent his wonderful house in Torbay. The views of the ocean, including playful whales and soaring bald eagles, provided the perfect setting for a productive year of writing and contemplation, all the while observing the changing nature of the land and sea. Of course, New- foundland is well known for the harshness of its climate, particularly during the winter. Over the course of my time there I came to appreciate the wonder and beauty of that climate. “Onward through the fog” is more than a Newfoundland statement about the weather; it’s a philosophy of life. It is, perhaps, particularly applicable to academic life. I now understand the fierceness of a winter storm, the sound of gale-force winds, and the diversity and beauty of the snow. Sometimes, being snowed in can be an amazing experience and just what the mind and body require. I must also thank my family for their continued love and support: my partner Robin, and our children Lachlan and Morag. Over the past several years I’m sure they have seen me at my best (hopefully) and my worst (sadly). Yet they continue to put up with me, occasionally laugh at my jokes, and forgive my propensity to dance and sing in public. Without them my life would be far less rich and fulfilling and I cherish them so very much. This book has been published with the help of a grant from the Federa- tion for the Humanities and Social Science, through the Awards to Schol- arly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Finally, this book is motivated by the struggles and commitment of social activists. These are people who labour, often without compensation, because they are dedicated to the vision of a better world and are not prepared to accept the world we live in as a given. Their efforts, commitment, and sacrifice, continue to inspire!

Byron Sheldrick Guelph, Ontario

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In 1995, the lumber company Daishowa, seeking an injunction to prevent an ongoing boycott of their products, sued a small non-profit social group, the Friends of the Lubicon. In 2009, an environmental activist and opponent of the British Columbia salmon farming industry was sued for $125,000 by Mainstream Canada, a Norwegian-based company and the second largest salmon farming company in British Columbia. Also in 2009, the City of Guelph, in Ontario, launched a $5 million lawsuit against a group protesting the development of an industrial park that would, allegedly, have an adverse effect on the Hanlon Creek watershed, a sensitive ecological area. And in 2010, the Youthdale Treatment Centre of Toronto sued former patients and their parents, claiming that allegations made about the practices at the clinic constituted defamation. The treatment centre sought $5 million in damages and an injunction. These cases are all examples of a very specific type of lawsuit called a slapp, which stands for “strategic lawsuit/litigation against public participation.” Such lawsuits are brought for the purpose of preventing or discouraging political expression and comment on public issues. They are designed to limit protest and dissuade individuals, citizens, and activists from political participation. There are many instances of slapps, and they take a wide range of forms. Allegations of defamation, trespass, and a host of other civil wrongs often form the basis of a slapp lawsuit. The cases can involve a wide range of plaintiffs, ranging from individuals, corporate executives, and politicians to companies and governments. Defendants may

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similarly range from individual citizens to a variety of social movement organizations, including interest groups, activist coalitions, and grassroots community organizations. What all of the cases have in common, regardless of their form, is that they take place within a context of political contestation. The lawsuit, while alleging a civil claim based in common law, is a strategy within a broader political dispute. The purpose is often to put activists on the defensive, redirect their energies and resources to a costly legal battle, and, in some cases, shut down their political campaign entirely. Sometimes a slapp is a defensive and reactive measure on the part of those who launch such cases. In other instances, it is a pre-emptive strike, intended to prevent democratic debate and political discussion of issues of public importance. In many instances, the goal is not to see the case through to completion, or even to secure a final legal victory. Cases can become extremely lengthy and drawn out, complicated by motions, preliminary hearings, trials, and appeals that many activists simply do not have the resources or energy to continue. slapps frequently involve tactics of attrition. slapps are an important strategy that can be employed by those in positions of power and authority to attack and sideline those who are challenging their activities. By invoking the authority of the courts, these suits represent a significant threat to both freedom of expression and political participation. More broadly, they raise questions about the role of the courts in policing and adjudicating political disputes as well as about the nature and quality of our democratic practices. If the quality of our democracy is measured by the degree to which people can actively and freely participate in political life, then the role of slapps, and the ability of some to use the courts to curtail and constrain debate on public issues, needs to be carefully examined. In general, slapps have been given fairly limited attention within the Canadian context. This sharply contrasts with the situation in other jurisdictions, particularly the United States, where there is a considerable literature on the phenomenon. While this undoubtedly reflects the more litigious nature of American political culture in general, it also reflects the degree to which public interest law has become a fixture of both Ameri- can politics and academics. The study and practice of public interest law, by which we mean the utilization of the law and rights to advance social movement causes, are highly developed in the United States. Public interest law itself is the subject of much academic and political debate. It focuses on a variety of dimensions, including the utilization of the law by

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elite groups as a tool for resisting social change and striking back at activists and social movement organizations. In Canada, by contrast, the study of public interest law remains somewhat less developed. This is not to say that considerable attention has not been paid to some aspects of the issue. The introduction of the Charter of Rights and Freedoms in 1982 spurred the development of a law and politics movement within Canadian academic circles. The literature of this movement initially focused on the legitimacy of judicial review and its broad implications for questions of democratic practice and political accountability. The so-called legalization of politics thesis interrogated the significance of an emerging rights discourse for Canadian politics. Left-wing academics such as Judy Fudge and Harry Glasbeek (1992), Alan Hutchinson and Andrew Petter (1988, 1989), and Michael Mandel (1994) argued that the Charter of Rights and Freedoms potentially undermined democratic practice by diverting social movements from political mobilization to the courts, where lawyers and the legal discourse operated as a demobilizing force. A right-wing version of the thesis, represented by the work of Morton and Knopff, argued that a “court party” of groups, mobilized by the opportunity to make Charter claims, had developed (2000, 24). This represented, in their view, a displacement of politics from appropriate democratic forums, most notably legislatures, to undemocratic and unaccountable courts. Both versions of the legalization of politics thesis have come under considerable criticism (Herman 1993; Sheldrick 1995; Sigurdson 1993). The range of these criticisms is beyond the scope of this book. However, it is important to note that the debate over the legitimacy of judicial review, and the utilization of the Charter by social movement organizations to press their claims, dominated much of the early debate over the intersection of law and politics in Canada. This had several interrelated effects. First, the development of public interest law scholarship was dominated by considerations of the legitimacy of the court’s role in adjudicating rights claims and the implications of this for public policy (Hiebert 1996, 2002; Manfredi 2001). Much of the debate has focused on whether or not it was appropriate for the courts, given that judges are neither elected nor democratically accountable, to pronounce on the constitutionality of state policy and overturn the decisions of democratic parliaments. How courts navigate their relationship with legislatures, interpret rights, and decide questions of reasonable limits, have been important topics within these debates. This, of course, also

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led to a focus almost exclusively on the decisions of the Supreme Court of Canada in high-profile Charter cases.1 There has been much less attention on lower courts, or on non-Charter/constitutional aspects of the law-politics intersection. The focus on constitutional cases, however, has also led to an examination of the role of social movement organizations, on the one hand, and of the state, on the other. To the extent that scholars have looked beyond the largely theoretical and normative questions of constitutionalism, it has been to focus on the actual practices of social movements and the how they have organized around law and rights. In particular, much attention has been paid to the contribution of the women’s movement, aboriginal organizations, and other equity-seeking groups to the development of Charter jurisprudence (Herman 1997; Jhappan 2002; Manfredi 2004; Razak 1991; Sheldrick 2004; Smith 1999). At the same time, scholars have also examined how the state has responded to the need to defend its policies against Charter scrutiny and the implications of Charter decisions on particular areas of public policy.2 This has produced a body of literature examining the internal decision-making structures of the state, and mapping how internal processes have been altered in response to new Charter demands (Kelly 2005). More recently, scholars have also begun to interrogate the judicial appointments process and the internal decision- making structures of the Supreme Court of Canada (McFarlane 2013; Riddell, Hausegger, and Hennigar 2008). These concerns reflect an ongoing interest with the democratic/undemocratic character of both the courts and judicial review. It is in this context that a consideration of slapps has much to tell us about the relationship between law and politics, and about the broader question of the role courts play in our political system. In particular, it offers a corrective to what, I would argue, is an overemphasis on “constitutionalism” as the primary context in which the relationship between law and politics takes place. While it is understandable that one should pay attention to the decisions of the Supreme Court of Canada, at the same time the relationship between law and politics plays out in a number of other judicial and quasi-judicial contexts (Sheldrick 2004). The original proponents of the legalization of politics approach were undoubtedly correct to the extent that courts and law do have an impact on the practice of politics and the way in which activists, elite groups, and officials conduct themselves. This can involve the displacement of politics to judicial arenas as well as the utilization of judicial arenas for overt political purposes

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by a range of actors. There is both a legalization of politics and a politici- zation of law. The study of slapps, however, reminds us that often these processes take place not only, and indeed not even predominantly, in a constitutional setting. Rather, they take place in a range of political contexts, across both public law and private law settings, and involve a wide range of actors. It frequently is not social movements that are the primary actors in motivating a shift from the political realm to the legal realm. The courts and law need to be understood not only as resources for activists, but also as resources for vested interests. Indeed, one needs to remember that the law and courts provide important arenas for political contestation (Tarrow 2011). They operate as both an opportunity and a constraint within the structure of political opportunities that inform the context of social movement activism and of opposition to that activism. It is this last feature—how the law and courts contribute to the possibilities of opposing and limiting activism—that is the focus of this book. Sydney Tarrow, in his study of social movement mobilization, has argued that the ability of social movements to organize and mobilize successfully depends on the overall structure of political opportunities. This includes an understanding of the resources and capabilities of groups, their repertoires of political action, but also of the structures of opposition that they face. It also includes those institutions of the state that can operate as vehicles by which activism and political engagement may be blocked (Tarrow 2011). In this context, the operation of the courts and the common law becomes very important. Discussions of judicial review have emphasized the “legalization of politics.” The displacement of activism and engagement by vested interests into the judicial arena, however, is a very clear and deliberate example of the legalization of political life. Moreover, this legalization of politics is not at the instance of a so-called court party of equity-seeking groups (Morton and Knopff 2000) but is rather the result of conservative forces seeking to undermine and thwart political contestation. It also has very little to do with constitutionalism. Instead, it is linked to the structures of the judicial process and the value- assumptions that are deeply embedded in the common law. slapps, then, are a very important aspect of the overall phenomenon of the legalization of politics. The fact that its manifestation is rarely the subject of comment by those who otherwise are critical of the Charter of Rights and Freedoms is telling. By drawing our attention to the role of law and courts within a context of political conflict, the study of slapps places questions of political

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participation at the heart of our inquiry. It raises questions about political participation and democratic practice in a more direct fashion than traditional discussions of the relationship between law and politics. This is because it raises these questions across a range of participatory democratic structures and contexts, and therefore requires us to confront issues regarding what constitutes appropriate political expression. Political participation in our society is not restricted to the legislative arena. There are a wide variety of other forms of political expression that take place within civil society. For example, the blockade of a logging road, a demonstration in front of a polluting factory, or a consumer boycott are all clear expressions of political perspectives on public issues. In this sense, they are just as valid as petitioning Parliament, writing to a Member of Parliament, or appearing before a Royal Commission or legislative committee. The political realm is far broader and deeper than governments and the state. Public issues often raise questions of private power. The rule of law, however, provides broad access to the courts to defend one’s interests. When does the expression of political dissent cross the line and become an issue of law? When does protest become defamation, nuisance, or some other interference with private rights and interests? What rights do politicians and public officials have to use the courts to defend their repu- tations against allegations of impropriety? Expression, in a democratic society, must be subject to some limits. The parameters of those limits, and the role of the courts in defining them, are critical questions. The utilization of lawsuits to curtail political participation requires us to consider the quality of our democratic and governmental institutions. While it is undoubtedly true that a corporation suing activists and protesters may raise questions about democratic political participation, most would agree that it is something very different when politicians and governments choose to sue their critics. If those elected to be accountable on public issues seek recourse to the courts to fend off their opponents, then the quality and integrity of our democratic institutions may be threatened. In Canada, as elsewhere, this has been a troubling trend. Municipal governments, for example, have chosen to sue demonstrators for damages related to their activities, and even elected officials have not been im- mune from the temptation to seek recourse to the courts when criticized. Such actions raise questions about the degree to which politicians can shift between the status of a private individual and the status of a public official, and the limits of our existing rules of parliamentary privilege and institutional accountability.

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slapps also raise the question of the appropriate role of the courts in adjudicating issues of public interest. In general, the courts have traditionally not been very good at this. Rules of standing and questions of justiciability, for example, have operated to preclude individuals and groups from bringing public issues before the courts.3 The common law principles that inform judicial attitudes understand the rule of law in terms of individual legal entitlements, rather than collective interests. Courts are generally comfortable considering and adjudicating individual interests. This is hardly surprising given the vast majority of a court’s caseload involves precisely this sort of claim. As such, when individual entitlements to bring a lawsuit are pitted against collective rights to expression and association, it is frequently the former that wins out. However, this is precisely what courts must consider when dealing with slapp lawsuits. When is the articulation of a public interest sufficiently great to override private rights and private interests? Put another way, the courts need to be able to ascertain when the articulation of private rights is justified and legitimate, and when it constitutes an abuse of the judicial process. The regulation of slapps may indeed require curtailing rights of access to the courts in political contexts. Historically, while courts have always been concerned about the abuse of judicial process, they nevertheless have also tended to be very wary of restricting access to the rule of law. There needs to be some principled basis for doing this, so that legitimate claims for redress can be adjudicated, while at the same time the maximum space for political discussion and political participation is preserved. slapps also clearly raise questions of rights. The Canadian Charter of Rights and Freedoms provides clear protection of rights to association, assembly, and expression. These rights are the fundamental underpinnings of political participation. However, our Charter of Rights and Freedoms is principally a negative rights document. This means that the Charter only applies in situations where state action limits or infringes the rights contained therein. As discussed earlier, many slapp lawsuits involve private actors seeking to invoke private law remedies. Consequently, these cases fall outside the scope of constitutionalism and our rights framework. Nevertheless, all of these remedies do require the intervention of the courts, and therefore seek to rely on the state authority, particularly in the enforcement of any remedial orders or injunctions that might result from the lawsuit. Canadian courts, however, have tended to take the position that the enforcement of the common law, in the absence of additional state involve-

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ment, is insufficient to invoke the possibility of Charter scrutiny. This dif- fers somewhat from the American context, where courts have been more willing to apply the Bill of Rights and rule that some slapps constitute a rights violation. Yet even if not directly applicable to many slapps, Char- ter rights do provide an important context and express fundamental principles of our political and legal systems. These principles should inform how courts approach the task of interpreting the common law and policing their own processes against potential abuse. At the very least, those rights-based principles should guide the definition and understanding of what constitutes an abuse of judicial process. It is also true, however, that the courts are not the only state institution that should be guided by an understanding of the importance of Charter principles. Governments themselves should strive to respect Charter principles in developing legislation and policy. In the United States, a number of jurisdictions have moved to impose legislative limits on slapp lawsuits, thereby providing courts with the tools to limit abusive suits, while not overly constraining access to judicial remedies. In Canada, British Colum- bia and Quebec have both enacted legislation restricting slapp lawsuits, although the BC legislation was repealed after a very short period of time and a change of government. Ontario now has a far-reaching anti-slapp bill before the legislature, although its future is far from certain. Other jurisdictions have considered legislation restricting slapps, but reform has been slow in coming. It would, of course, be wrong to suppose that all slapp lawsuits are successful in curtailing public expression. Much depends on the nature of the targets of slapps, and the way in which they respond to the lawsuit. Law is frequently a double edged sword. A slapp lawsuit can potentially be the basis for further mobilization. The famous McLibel case in Britain demonstrates how a slapp lawsuit can lead to a huge amount of negative publicity for a plaintiff. Moreover, if activists have the capacity to fight a case through to its conclusion, there is a very good chance the suit will be defeated. Most slapps are not particularly meritorious on their facts. There is also a growing jurisprudence in Canada that suggests the courts will be less willing to tolerate slapp litigation. Nevertheless, since many slapps never actually make it to court, and those who launch such litigation are frequently not concerned with the jurisprudential merits of their cases, this jurisprudence may not be of great assistance to many individuals or social movement organizations that find themselves on the receiving end of a slapp. For this reason, activists have become increasingly

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organized around the issue of slapps, and there is a growing database of information about slapps, including strategies and tactics for combatting them. However, much work remains to be done on this front. The above discussion constitutes a very brief introduction to the concept of slapps and their implications for democratic participation. Chap- ter 2 will examine in more detail the characteristics of slapp litigation and review the specific types of claims through which slapps are frequently made. This exploration will provide a more contextual discussion of the free speech and associational issues raised by slapps and their democratic implications. The chapter will also explore the types of organizations and individuals that are often parties to this sort of litigation and help to develop a typology of slapps based on their democratic implications. Chapter 3 will build on this typology and survey the historical development of slapps in Canada. It will examine in some detail specific Ca- nadian case studies, as well as some of the judicial decisions on slapps that have shaped the jurisprudence in this area. The case studies will provide an opportunity to explore specific examples of slapps and will concentrate primarily on the context in which both parties to the litigation are private actors and the impact on political activism and participation in civil society. This chapter will also discuss some of the constitutional implications of slapps and how Canadian courts have understood the relations between slapps and issues of political expression and association. Having reviewed the historical development of slapps in Canada, Chapter 4 will examine more concretely the implication of slapps for democratic institutions rather than democratic expression. In particular, the use of slapps by politicians to avoid or circumvent political accountability will be explored. In recent years there have been several instances where political figures have either sued or threatened to sue other politicians in litigation that is strongly reminiscent of a slapp. The lawsuit brought by Prime Minister Stephen Harper against the Liberal Party of Canada over the so-called Cadman affair, along with others, will be explored in some detail. This will provide a lens for exploring the limits of existing systems of political accountability, and the inadequacy of parliamentary privilege as a vehicle for ensuring and protecting political dialogue and criticism. Chapter 5 will look at the possibilities for regulating slapps. It will discuss and assess legislative and regulatory schemes that have been proposed to regulate slapps. In particular, regulatory frameworks from the United States and Australia, as well as in British Columbia, Quebec, and

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Ontario, will be examined in detail. The political battles over these regulatory efforts will also be examined, including the underlying reasons for the contestation and the nature of the political mobilization against the regulation of slapps. Finally, Chapter 6 will examine how social movements have organized to resist slapps. A rich network of non-governmental organizations and resources has developed to resist slapp litigation. How these organizations operate, and the resources they provide defendants, will be discussed. The chapter will also examine, in more detail, the logistics of the judicial arena and the dynamics of a court case. This will provide an opportunity to consider not just the limits a slapp lawsuit places on political expression, but also how activists and social groups may avoid being drawn into a legalized battle, and maintain their political momentum. slapps represent a potentially serious threat to political activism and political participation. At a time when we lament the diminished quality of political participation in Canada, as evidenced by decreasing voter turnout, youth disengagement, and general apathy about public issues, it is important to examine critically those structures within our political system that limit and constrain political debate. slapps operate within a highly contradictory context. While one wants to encourage political participation, one also wants to ensure that those who genuinely have suffered a civil wrong have appropriate means of redress. At the heart of this contradictory context are the courts, which must both seek to safeguard democratic practices while also safeguarding their own, far more traditional role as adjudicative bodies.

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In Chapter 1, slapps were presented as a threat to the values of political participation. These lawsuits operate to redefine disputes, transforming issues of public debate into private issues subject to civil litigation. More broadly, they also operate to punish and threaten individuals and groups engaged in political participation, and potentially to dissuade others from participation. The chilling effect of these lawsuits on political participation cannot be underestimated. While slapps may be conceptually easy to understand, developing a definition of slapps can be difficult. This is because they need to be understood from a variety of perspectives. A definition of slapps needs to address issues around the intentions of the slapp filer, the nature of the defendant’s activities, and the overall effect of the litigation on political participation. The effect of litigation has to be understood in terms of its impact both on the individual defendants as well as on the organizations to which they might belong. Additionally, the impact of the litigation on other politically engaged individuals and groups needs to be assessed. This is complicated by the fact that it is very difficult to study slapps em- pirically. slapps take a variety of forms, raise a wide range of issues, and are launched in a range of judicial forums, and many never actually come to trial or get reported.

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slapps: The American Public Interest Law Context

slapps came to prominence as a phenomenon of American public interest law in the late 1980s and early 1990s. Pring and Canan first called attention to the growing number of lawsuits brought against political activists, particularly in cases involving representations to environmental regulatory agencies (Pring 1988, 1989; Canan 1989; Canan and Pring 1988; Pring and Canan 1996). Much of the literature on slapps and many of the dominant approaches to both defining and confronting slapp lawsuits reflect the American experience. In particular, the specificities of the American constitutional system, and the First Amendment right to petition government, have played an important role in defining slapps. These have provided us courts and legislatures with a powerful tool for responding to slapp litigation, and also have served to define the scope of what constitutes a slapp lawsuit by reference to the nature of the political participation underpinning the case. Within this context, Pring and Canan defined slapps as involving four components:

1 The lawsuit must involve a civil claim for monetary damages. 2 The lawsuit is filed against a non-governmental individual and/or organization. 3 The lawsuit is filed because of the defendant’s advocacy directed towards a branch of the government, or the electorate more generally. 4 The advocacy is directed towards a substantive issue of public or societal significance. (Canan and Pring 1988, 387; Pring 1989, 8)

This approach draws a sharp distinction between private and public figures as slapp targets and requires that the political participation precipi- tating the litigation involve protected activities under the right to petition. In other words, slapps relate to political participation directed towards convincing some level of the state to adopt a particular policy or decision. The right to petition, in the us constitutional context, has been interpreted very broadly. Its scope has been extended to include activities that only indirectly target government decision-makers, including activities directed at shaping public opinion. The reliance of American jurisprudence and legislation on the constitutional right to petition marks an important distinction between the American and Canadian contexts, as the Cana- dian Charter of Rights and Freedoms does not have a direct equivalent to the us First Amendment.

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Despite these differences, Pring and Canan’s definition provides a useful starting point for examining the dynamics of slapps, their main characteristics, and the issue of balancing the protection of political participation with safeguarding access to judicial processes. Pring and Canan’s definition of slapps draws our attention to two distinct conceptual issues. First, the scope of the litigation needs to be considered. This includes the nature of the claim before the court, the remedies sought, and the identity of parties to the litigation. Second, the scope of the political participation must be assessed. This requires an analysis of the political context and the nature of the political engagement that has given rise to the litigation. It raises the question of what constitutes a public issue versus a private one. It also requires us to consider the intention of the plaintiff and the impact of the litigation on the defendant. One can well imagine instances of litigation where the motives of the plaintiff are genuine but where the impact on political participation is still very great. How one balances access to the courts with the need to ensure a wide scope for expressive political activity is central to the discussion of slapps.

The Scope of slapp Litigation

Causes of Action and Remedies The first two elements of Pring and Canan’s definition raise particularly important elements of a slapp case. slapps involve a civil claim, for monetary damages, brought against non-governmental organizations or private citizens. With many slapps there is a disconnect between the actions that give rise to the litigation and the nature of the civil claim brought before the courts. Thus, for example, the boycott of a company’s products may lead to a claim for defamation by the company. Similarly, the blockade of a logging road, or a demonstration at a factory site, might lead to a claim for damages based on trespass or on interference with various economic activities. In other words, the political and public issue that gave rise to the boycott or demonstration produces a damage claim that is rooted in the private law of torts. The effect of this is that the public issues raised by the political campaign are sidelined because they are largely irrelevant to the issues the court is required to consider in the private law matter. This is one of the signature elements of slapp cases, and the reason they constitute such a potent and attractive strategic tool in confronting political activism. They offer the opportunity to redefine a political struggle and transform the substantive nature of the underpinning issues

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from the public and political sphere into the private and legal sphere. In this respect, slapps represent precisely the type of “depoliticization” that many scholars have described as part of the legalization of politics (Fudge and Glasbeek 1992; Hutchinson and Petter 1988, 1989; Mandel 1994). This dynamic is compounded by the fact that many slapp lawsuits are unfounded. Indeed, the vast majority of such cases are ultimately unsuccessful (Canan and Pring 1988). The filer of a slapp suit, however, is frequently uninterested in the merits of the case. Rather, the intention behind the case is to divert attention from the political issues raised by the defendants and to force activists to redirect time and resources from their political campaign to a defence against the litigation. Such litigation results in a tremendous drain on the activists’ resources and may even result in groups ceasing operation. Beyond that, however, the threat of a slapp may also operate to “chill” the activities of other groups and individuals who might have become politically engaged on the issue. The fear of being subjected to a lawsuit, and the costs associated with it, may dissuade many individuals from political participation. The chill effect of slapps, then, may thwart participation well beyond those who are actually sued. A wide range of legitimate political activities can give rise to a slapp (Sheldrick 2004, 49).1 Moreover, often these activities seem fairly innocu- ous, or at the very least, constitute the types of activities that many would take for granted as permissible within the framework of free speech in a democratic society. slapps have been filed as result of:

• writing a letter to the editor in a local newspaper • circulating petitions • contacting a public official • reporting police misconduct • erecting a sign on one’s property • complaining to school officials about teacher misconduct or unsafe conditions in a school • speaking at a public meeting • making a submission to a city council • reporting unlawful activities • testifying before legislative committees • speaking out as a representative of a public interest group • filing a public interest lawsuit or bringing a case before a regulatory agency • giving interviews to the media.

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A very typical context in which slapp litigation arises is one where individual community members object to a proposed development in their neighbourhood. Often these cases involve local planning or zoning issues, or environmental issues. In the course of the planning process, individuals or groups might make representations to their city council or to various environmental regulatory agencies. Although such representations are permitted by law as part of the planning process, citizen engagement in the process can nevertheless lead to the filing of a lawsuit. Certain types of civil claims lend themselves particularly well to slapp lawsuits. Pring and Canan’s study of slapps, one of the few empirical studies of the phenomenon, found that the vast majority of slapp litigation cases tend to be framed in terms of defamation or of an economic tort. Nevertheless, there are a host of private civil actions that form the bases of slapps. Some of the most common grounds of injury alleged in such lawsuits are detailed below.

Defamation Defamation is the single most frequent cause of action alleged in slapp lawsuits. Pring and Canan’s study found that 53 percent of all slapp cases filed in the United States were based on defamation, which involves an intentionally false communication (Pring 1989, 9). If the statement is published, then it constitutes libel, whereas if it is spoken publicly it constitutes slander. The effect of the statement must be to injure an individual’s or corporation’s reputation. In a defamation case, the plaintiff must establish that the statements were made and are damaging to reputation. The onus is then on the defendant to establish a justification for the statements. In common law the primary defence in a defamation case is to establish the truth of the statements. Given that the intention behind a slapp lawsuit is frequently not to actually win the case in court, it is readily apparent that defamation provides a rich ground for slapps. In the course of a political campaign many statements and allegations are made. Any negative or critical statement can provide the basis of a defamation claim, but demonstrating the absolute truth of some statements may prove difficult for activists. These issues were well demonstrated by the British “McLibel” case. In 1986, two members of a London Greenpeace organization were sued for libel by fast-food giant McDonald’s. Helen Steel, a gardener, and Dave Morris, a local postman, had been distributing a pamphlet entitled “What’s

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Wrong with McDonald’s?—Everything They Don’t Want You to Know” outside McDonald’s restaurants in London. The pamphlets alleged that the restaurant exploited children through their advertising, promoted unhealthy diets, exploited their employees, damaged the environment, and mistreated animals. The trial lasted two and a half years, and Steel and Morris, who could not afford legal representation, defended themselves. In the end, while the court accepted that many of the statements contained in the pamphlet were true, Steel and Morris were unable to demonstrate the veracity of every single allegation contained in the document and were ordered to pay £60,000 in damages. By the end of the case, both Steel and Morris were penniless, having had to give up their jobs in order to appear almost daily in court to defend themselves. Ultimately, McDon- ald’s was unable to collect the damage award (Sheldrick 2004, 50).2

Invasion of Privacy / Exploitation of Personality This tort involves using images of a person or publishing information about an individual’s private affairs without his or her consent. It is a far- reaching cause of action that potentially encompasses a wide range of political expression and communication. The distribution of a poster or pamphlet containing the photograph of a corporate executive might very well give rise to this sort of action. Similarly, the inclusion of a photograph of an individual on a placard or banner at a demonstration might also prompt an action alleging exploitation of personality. Publication of information about corporate dealings that involve information about the role of particular individuals might similarly fall afoul of this tort. Many political campaigns involve the disclosure of information and allegations that might not generally be known to the public. One can well imagine, for example, how complaints against public authorities, or opposition to a proposed new development or municipal rezoning, might involve the revelation of information not previously known to the public. That a city counsellor allegedly received kickbacks from a developer, for example, could give rise to a claim for defamation, but also to a claim that the privacy interests of the individual involved were violated.

Malicious Prosecution or Abuse of Process The act of bringing a civil or criminal case before the courts may, in and of itself, constitute a civil wrong. Roughly 20 percent of slapp cases involve this sort of claim (Pring 1989, 9). If a case is brought to the courts knowing

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that there was no merit in the case, and the intention was to harass or persecute the defendant, then it may be possible to recover damages on the basis that the lawsuit itself constitutes an abuse of judicial process. This type of slapp is often launched in retaliation to cases where an advocacy group has started their own public interest lawsuit. In environmental cases, for example, seeking review of a proposal before the courts or an environmental review agency could prompt such an action. In other contexts, a challenge to an employment practice before a Human Rights tribunal could lead to an abuse of process allegation. It is quite ironic that many slapp suits themselves could be framed as an abuse of process. Consequently, one mechanism for defending against slapp suits has been the launching of a counter-claim that the original slapp is a case of malicious prosecution. These suits, often termed slapp-backs, have been quite successful in some instances. As discussed below, however, activists who lack financial resources to fight a slapp frequently are not in a position to launch a countersuit alleging an abuse of process or malicious prosecution. The disparity in financial resources between the parties to a slapp means that those who launch such lawsuits rarely are exposed to a countersuit.

Interference with Contract or Economic Advantage Economic or business torts constitute a fairly broad category of civil wrong. They involve allegations that an individual’s or group’s activities have caused economic injury to the plaintiff. According to Pring and Canan this is the second most common category of slapp lawsuits, com- prising 32 percent of slapp cases (Pring 1989, 9). The common law legal tradition is deeply concerned with the protection of property rights and contractual obligations. While contract law creates a set of rules governing the relations between parties to a contract, the civil law of torts focuses on unwarranted or unjustified interference with contractual relations by individuals who are not party to that contract. Historically, these rules were meant to safeguard fair competition, in that they precluded competi- tors from engaging in activities meant to force a breach of contract in the hopes that they might take financial advantage of the situation. However, the rules have also operated to reinforce and emphasize the individual nature of economic relations and to limit opportunities for collective action. Most famously, the formation of trade unions was considered illegal in common law as a restraint on trade and an interference with individual worker contracts.

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Economic torts provide a wide range of possibilities for slapp lawsuits. Most slapps are launched by private corporations and the under lying motive often relates to the economic activities of the corporation. In Daishowa v. Friends of the Lubicon (1998), for example, the political issue was Daishowa’s logging of lands that were the subject of a land-claim dispute between the Lubicon Cree and the federal government. The Friends of the Lubicon, an organization formed to support the band, launched a boycott of Daishowa and actively lobbied its customers to switch to other companies for their paper products. The intention, of course, was not only to bring economic pressure on Daishowa to stop logging Lubicon lands, but also to encourage Daishowa to pressure the government to settle the ongoing land-claim dispute with the Lubicon. Daishowa, however, sued the Friends of the Lubicon for interference with its contractual relation- ships with customers. Virtually any boycott of a company’s products, then, could lead to a claim of interference with economic activities or contractual obligations. The blockade of a road, or a demonstration in front of a factory, making it difficult for a company to receive deliveries or ship its goods, could also lead to such a claim. Essentially, any activity that in some way interferes with the operation of a corporation could give rise to a claim of an economic tort. Many of these cases involve activists directly challenging the activities of a corporation, but even indirect challenges can give rise to an economic tort claim. For example, regulatory hearings are often required to renew licences, to approve rates, or even to launch new developments. Land-use hearings before municipal boards and environmental assess- ments involve significant economic possibilities for corporations, but also opportunities for individuals and groups to oppose their activities. Even where regulatory statutes provide a right to appear before these bodies, representations can still lead to a slapp on the basis that the economic activities of the corporation have been maliciously endangered.

Nuisance and Trespass Roughly 32 percent of slapp suits allege some version of trespass, nuisance, or other property right violation (Pring 1989, 9). Trespass, of course, involves going onto someone else’s property without the legal right to be there. In other words, being on private property without either an express or implicit invitation constitutes trespass. In many instances, there may be an implied right of entry onto what might otherwise be considered

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private property. Shopping malls, for example, are generally open to the public despite being privately owned and operated. However, the implied right of entry in these sorts of cases can be revoked. If someone stays on the property after having been ordered off, then an action for trespass may follow. Demonstrations, protests, blockades, and occupations can all lead to allegations of trespass. Moreover, trespass can be asserted even if no damage has been sustained by the property owner. The cause of action is based on the infringement of the “right” of ownership of property, rather than any actual physical damage suffered. Nuisance, by contrast, focuses on the impact of an individual’s actions on the property owner’s use and enjoyment of his or her property. Almost anything that obstructs or interferes with the utilization of property, or which causes damage to property, can be considered a nuisance. Nui- sance can also be applied to actions that endanger, or potentially endanger, life or health, that “give offence to the senses,” or that violate the laws of decency. Property damage need not be extensive or significant in order to constitute a nuisance. Thus, spray-painting graffiti on a wall or pasting a poster to a fence post may be sufficient to constitute a nuisance. A sit-in or blockade that prevents access to and use of property may also constitute a nuisance in that the ability to make full use of the property (which of course is precisely the point of the action) has been compromised. It should also be noted that there are criminal law equivalents to both trespass and nuisance. In Canada, the criminal law equivalent of nuisance is termed “mischief to property.” There are many cases where striking workers, for example, have been successfully prosecuted as a result of picket line activities. In some instances, this has been for actions as trivial as damaging the paint to a vehicle crossing the picket line. At the provincial level, most Canadian jurisdictions have legislation that makes trespass an offence subject to prosecution. There are also a number of criminal code provisions that deal with trespass, including one that makes it a criminal offence to trespass at night.

Damages and Remedies A typical slapp lawsuit is often accompanied by a claim for monetary damages that is quite out of proportion to any damage that might have been suffered. Pring and Canan’s study of slapps found that among 1,873 defendants sued, the average claim was for $9 million. Such exorbitant damage claims are part of the strategy of chilling public participation and

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sending a message to activists that their initiatives come with a potentially heavy price tag. The underlying intention behind a slapp lawsuit, then, is to intimidate political opponents. This spurious nature of slapps is reinforced by the fact that the vast majority of slapp lawsuits are, in fact, unsuccessful. Roughly 77 percent of them are ultimately dismissed (Pring 1989, 12). However, this is not without considerable costs to the targets of slapps, as on average it takes three years for these lawsuits to be resolved (Canan 1989, 26). While slapp lawsuits will likely be dismissed if fought through to the bitter end, it is often the case that they do not get that far. There are many opportunities within the process to constrain political expression and participation. Consequently, the objectives of plaintiffs are often realized without the cases actually going to trial. In many instances, the first stage of slapp lawsuits simply involve a lawyer’s letter threatening litigation if the defendants continue their activities. The letter may even stipu- late expected remedial action, such as a retraction of statements already made, the issuing of an apology, or the cessation of political activities such as a boycott or blockade. The threat of potentially crippling damage claims may be sufficient to achieve the plaintiff’s objectives. In part, it depends on the nature of slapp targets and the degree to which they are risk averse. Where the targets are individuals, with limited resources to fight a legal battle, the lawyer’s letter may be sufficient to chill political engagement. If a lawsuit is actually commenced, the costs to the defendant will increase significantly in terms of both the time and the money required to fight the lawsuit. In addition to the trial, the parties to litigation are also subject to a process called “discovery.” During discovery both sides to a civil case are required to disclose to the other side all of their documentary material and evidence. The objective of discovery is, in fact, to make litigation a more expeditious and fair process, by ensuring that neither party is surprised by what is presented in court. It is designed to eliminate “trial by ambush.” Discovery also provides the basis for the negotiation of settlements to lawsuits, as both sides can assess carefully and fully the strengths and weakness of their case before proceeding to trial. In a slapp case, however, the intention is not to win or to settle. Instead, discovery is often another strategy to extend the duration of litigation, subjecting the defendants to examination and cross-examination, and generally increasing their costs. Pretrial motions of various kinds can further exacerbate the situation.

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In some instances, plaintiffs may be willing to settle the lawsuit to avoid the time and expense of fighting the court battle. These settlements often include some damage payment, but they may also require the defendant to agree to stop the activism that prompted the litigation. Settlements may also include an undertaking not to discuss the terms of the settlement. In other words, defendants may feel constrained to escape further litigation by agreeing to suspend their political activities. A cease-and-desist order operates to effectively gag potential critics. Courts are often complicit with plaintiffs through the granting of injunctive relief. Many slapp lawsuits, in addition to claiming damages, request an injunction as part of their remedial claims. An injunction is essentially a court order requiring a defendant to cease engaging in a particular activity. A permanent injunction may be granted as a remedy after a full trial. However, it is possible for plaintiffs to request an interim injunction as part of a judicial proceeding. The rationale for this is that if a particular course of action is causing damage or injury to a plaintiff, it would be unfair to allow that activity to continue until the end of a trial. In most lawsuits, monetary damages are sufficient to compensate the plaintiff for any injury suffered. However, in cases where it is impossible for monetary compensation to fully remedy the situation, the plaintiff might seek interim injunctive relief. An interim injunction requires defendants to cease their activities until the question of right or wrong is adjudicated. In defamation cases, for example, it can be argued that damage to an individual’s reputation can never fully be restored by money. Similarly, in economic tort cases, it might be argued that loss of business opportunities, including potential customers, is irreparable. These sorts of arguments provide the basis in slapp cases for requests that the court grant an interim injunction. The granting of the injunction, however, may be what the plaintiff is really after in that it operates to shut down the defendant’s political activities. Once the main issue comes up for trial, the political battle may already be over. Frequently, the case filed before the court will remain open, with the plaintiff advancing it very slowly. One must remember that the plaintiff has carriage of the case, and there is frequently very little the defendant can do to speed things up. As a result, the threat of the lawsuit remains active, while the court-ordered injunction operates to shut down political participation. One must also bear in mind that violating the injunction carries with it a set of penalties that go beyond whatever the plaintiff may be claiming. Violation of an injunction constitutes contempt of court and can lead to additional fines, or even imprisonment.

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The Parties to the Litigation

Pring and Canan’s definition of slapps includes the requirement that the target of a slapp be a non-governmental individual or group. This aspect of their definition highlights an important element of a typical slapp, namely, the differing nature of the parties and the disparity in resources and power between them. Typically, the filer of a slapp lawsuit is a corporation or a business interest group. The targets of slapps, by contrast, are usually individuals, civic organizations, or public interest groups. Pring and Can- an’s study of slapps clearly demonstrates this. In their analysis of slapp lawsuits, they found clear differences in the identities and resources of slapp plaintiffs and defendants. These findings are summarized in Table 2.1. According to this data, 39% of those launching slapp suits were business interest groups, while individuals launching slapp lawsuits tended to do so in their capacity as a property/business owner (20%), or as a result of some other occupational interest (25%). The targets of slapps, by contrast, overwhelmingly tended to be individuals (64%). A further 37% of slapp targets were non-governmental organizations, including public interest groups (14%), civic organizations (13%), and a variety of membership organizations (5%). This contrast between the identities of slapp filers and targets speaks to a broader issue in public interest law. Marc Galanter (1974), in a semi- nal article, speculated on the limits of public interest law as a vehicle for social change. He reasoned that in most instances, litigation would tend to favour the status quo, reinforcing the position of society’s “haves” against those seeking to challenge vested interests. He based this hypoth- esis on an analysis of the resource imbalance between parties in public interest litigation. Galanter identified two broad categories of parties to litigation: one-shotters and repeat players. One-shotters are those individuals or groups that infrequently come into contact with the judicial system. They often lack both financial resources and experience with the legal system. Repeat players, by contrast, tend to have ongoing experience and interaction with the legal system. Repeat players are usually institutions—businesses, large interest groups, or even the government—and are well resourced and experienced in dealing with lawyers and courts. They generally have access to superior legal advice, often employing lawyers on an on-going basis as part of their business enterprise. The resources of repeat players are extremely important in giving them a comparative advantage over one-shotters. As significant, however, is the

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Table 2.1 Participants in Slapp Lawsuits (Source: Pring and Canan 1988, 511) Type Participants Targets (%) Filers (%) Individuals Family membera 7 1 Citizen 38 4 Voluntary group member 3 2 Minority group member 0 1 Economic participant (e.g., property owner) 8 20 Occupational participantb 8 25 Groups Industry group 1 39 Labour organization 1 1 Public interest group 14 2 Civic/social organization 13 1 Political organization 2 0 Religious organization 0 0 Membership organization 5 2

a Lawsuits between family members frequently take place, particularly in relation to property disputes and the disposition of business and/or family assets. Where there is a broader political context, there is the potential for a Slapp-type lawsuit. b This refers to cases where plaintiffs are suing within the context of their occupation, rather than as business or property owners. A teacher, for example, suing a parents’ group over allegations of misconduct would be one such example. Other occupational roles could include doctors, lawyers, or accountants, to name a few.

fact that repeat players are able to approach the question of litigation from a very different perspective than the one-shot player. In particular, repeated exposure to courts and law results in an ability to contextualize a legal dispute within a broader framework. Repeat players can strategize, not just in terms of a single dispute, but in terms of a longer time frame. They are able to situate a legal case within a broader context of business activities or policy development. They are, in effect, able to play for the long term, rather than for the immediate outcome of a particular case (Galanter 1974). This is precisely what takes place in the context of a slapp lawsuit. The target is placed on the defensive. A political campaign, which likely was never intended to include a legal component, suddenly involves the need to hire lawyers and fight a protracted court battle. In effect, the target of the slapp lawsuit is forced to assume the role of a one-shotter in Galant-

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er’s framework. The filer of the slapp, however, is very much a repeat player. Institutional, organized, and well funded, the filer of the suit is in a position to strategically assess the merits of the lawsuit. Moreover, since the filer is able to contextualize the lawsuit within a broader framework of business interests, winning the lawsuit is not the primary, nor likely even an important, consideration. The lawsuit becomes part of the costs of business. When one looks at the data presented in Table 2.1 on typical profiles of slapp parties, it becomes clear that they fit Galanter’s typology of one-shotters and repeat players very nicely. When examining the types of parties that both file slapps and are targeted by them, three scenarios emerge. First, there are relatively small- scale conflicts that usually involve individuals suing each other. These sorts of cases could be considered private lawsuits, except for the fact that they involve one party trying to prevent the other from seeking recourse to the state. Such situations might involve disputes between property owners, landlords and tenants, or employees and employers. They might also involve disputes between family members. The American case of Bell v. Mazza (1983), provides an excellent example of this sort of case. It emerged that the plaintiff was constructing a tennis court on his property, which neighbours felt endangered adjacent wetlands. He sued after one neighbour contacted state agencies in an effort to get the construction halted. These types of cases tend to arise relatively infrequently. Both plaintiff and defendant are, in Galanter’s typology, one-shotters. The costs of litigation, therefore, are relatively high to both sides. Another element of this first scenario that militates against slapp lawsuits is the fact that there are frequently a variety of other ways in which disputes of this sort can be settled. Disputes over zoning and land use, for example, frequently get heard in municipal committees of adjustment. In other words, there are often a variety of quasi-judicial and regulatory agencies in which these sorts of disputes between individuals can be heard. Indeed, the approval of these agencies is often a precondition for an individual taking any steps to begin with. In this context, it is far less likely for one party to try to curtail another’s access to state decision-makers by recourse to the courts, unless there are significant resources in play. These decision-making structures actually provide the vehicle for resolving the dispute, thereby eliminating the need to seek recourse to the courts. Second, slapp lawsuits sometimes involve disputes between large organizations that are both reasonably well resourced. This sort of slapp lawsuit takes place when a large well-financed organization, such as a

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corporation or an industry or trade association, sues a large, relatively well- organized non-governmental organization, such as Greenpeace or Sierra Club. In this sort of case, both plaintiff and defendant may be repeat players, in the sense that both may have considerable experience with litigation as a political strategy. The target of the slapp may also have a history of public interest litigation, although this is not always the case. The expertise and resources of the slapp target in this kind of dispute mean that it will be better placed to resist the slapp strategy. Even where the slapp target has litigation expertise, however, the slapp still has the effect of diverting resources and attention away from the primary focus of the organization’s political activism and litigation. Money spent on defending a slapp suit will be unavailable to pursue other public interest litigation, or to finance political campaigns. The final type of case involves a well-organized plaintiff suing individuals or small, non-institutionalized citizens groups. Many slapps involve this scenario; they are brought against community-based organizations, residents’ associations, and other small-scale groups. Such cases often arise within the context of local issues. They are often “not in my back- yard” (nimby) groups involving people with little or no experience of activism who are brought together around a common local cause. Nearly 13 percent of all slapps, according to Pring and Canan, fall into this category. These types of groups often find themselves thrust into political conflicts as a result of circumstances well beyond their control. slapp filers, in these types of situations, often target not just the group, but frequently also the individual members who are considered key leaders and activists. The hope is that by silencing the leadership of these grassroots organizations the opposition to their development plans will crumble. It is, therefore, not surprising perhaps that many slapps target individuals. In Pring and Canan’s study, 64 percent of slapps were filed against individuals, and 38 percent were filed against individuals in their capacity as ordinary citizens. slapps, then, while certainly a threat to organized political interests and social movement groups, are often directed against politics at a very grassroots, individual level.

The Scope of Advocacy

Having considered the scope of slapp lawsuits in terms of both the causes of action that such litigation takes and the range of parties to that litigation, it is necessary to consider the scope of the political advocacy that

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gives rise to these lawsuits. slapps, by definition, involve the transformation of a dispute from the political arena to the legal one. However, as discussed above, the dispute in a legal context is frequently unrelated to the original political context that provoked the lawsuit. It is, therefore, important to have a solid understanding of the types of political advocacy that give rise to slapps. The difficulty, of course, is that if one defines slapps in relation to any and all political activism one may unduly limit the recourse of individuals to the courts to adjudicate legitimate grievances. Balancing access to courts with preserving a broad scope for political participation is a difficult task and is at the crux of debates about the regulation of slapp lawsuits. There are several ways of dealing with the issue. To begin with, one might advocate a broad definition of political activism that includes recognition of an expansive right of political participation. In such a framework, any attempt to utilize the judicial process to circumvent political participation would be considered unacceptable. It would encompass a very broad range of political activism and would not focus on the intentions of the plaintiffs. Instead, it would emphasize the effect of litigation on the political participation of the defendant. A competing approach would be to limit the definition of slapps to cover only certain types of political activism, or to require that plaintiffs only sue for actual malfeasance. One consideration is the distinction often drawn between political activism directed towards the state and political activism that takes place only in the private sphere. Another consideration is the degree to which the activism relates to an important public issue. This approach invites consideration of both the focus of the political activity (e.g., petitioning government) and the nature of the issue at stake (public or private). In the United States, the discussion of slapps is often framed within the terms of the constitution’s protection of the right to petition government. As such, there has been a tendency to define the political action that underpins a slapp lawsuit as limited to activism directed towards government. This approach attempts to draw a clear line between the private and public spheres. On the one hand, political activism around significant public issues that involves lobbying government merits protection against slapp litigation. On the other hand, political battles that take place exclusively within the private sphere do not. In this context, the courts can play a role in adjudicating civil wrongs, regardless of the political nature of the conflict that gives rise to the litigation. The private–public distinction is reflected in the definition of slapps cited above by Pring and Canan. For a lawsuit to be considered a slapp,

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they required (a) that it be filed because of the defendant’s advocacy directed towards a branch of the government, or the electorate more generally; and (b) that the advocacy be directed towards a substantive issue of public or societal significance. While this might seem to be a fairly restrictive definition, it has in fact been criticized for being both too narrow and too broad. Pring and Canan’s definition has been criticized as being too broad in that it employs a very wide understanding of the us right to petition. There is a large body of case law on this clause of the American Bill of Rights. A full consideration of the scope of the clause is beyond our purposes, but many cases have taken the view that the protection goes beyond the direct lobbying of government to include associated activities such as demonstrations, boycotts, and protests. In some instances, such actions may be directed towards private entities, such as a factory, so long as the goal of the action is to directly or indirectly influence government. As Pring and Canan’s definition suggests, this can even extend to simply trying to influence the electorate and shape public opinion on an issue. Thomas Waldman (1991–92) has been particularly critical, arguing that Pring and Canan’s approach would exclude legitimate lawsuits by defining the right of petition too broadly. He would narrow the range of political activity by requiring the defendant’s political activism to involve the direct lobbying of government. In this context, the plaintiff’s lawsuit would be considered a slapp only if it was in response to the defendant having directly contacted or lobbied government officials. Waldman would continue to include activities such as demonstrations and protests, but only if such activities were aimed directly at government officials. Under this conceptualization, protest at the state legislature would be protected, while protest at the factory gate would not. Political activity directed at a private organization, such as a corporation, or members of the public generally, would be outside the scope of the definition. Wald- man has also expressed considerable concern over the potential for what he terms “sham petitioning” (1991–92, 1045). He is concerned with situations where individuals might try to conceal civil wrongs by claiming that they were involved in political activity, even though there was little merit in that activity. Waldman, then, would try to balance the competing interests of plaintiffs and defendants by providing considerable scope for access to the courts to seek redress for civil wrongs, while limiting the scope of “protected” activity to cases where the lawsuit is very clearly designed to prevent the defendants from seeking recourse to government or to punishing them for it.

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The difficulty with Waldman’s approach is that it potentially precludes a wide range of political activity and a wide range of situations where slapp lawsuits can operate to chill political participation. For this reason, some have argued for a more expansive definition of the range of political activity that can give rise to slapps. Victor Cosentino (1990–91), for example, has argued that virtually any lawsuit, if linked to the political activities of the defendant, and regardless of the scope of the activity, should be considered a slapp. He criticizes Pring and Canan’s definition as being too narrow, in that it considers the motives of the targets of slapps and requires an inquiry into the significance of their political activism. Cosen- tino would eliminate from the equation all consideration of the scope of the political issue raised by the defendant, or to whom their political activism is directed. Rather, he would focus the inquiry exclusively on the motivations of the plaintiff. Any lawsuit intending to retaliate for successful opposition, to discourage future opposition, to intimidate the defendant, or to be used as a strategic tool in a political battle would, for Cosentino, constitute a slapp.

A Conceptual and Analytical Framework for slapps

The American debate, which is well represented by the above commen- tators, reflects the significance of the First Amendment right to petition (Pring and Canan 1996, ch. 2). In the Canadian context, there is no equivalent to the right to petition. The Charter of Rights and Freedoms contains protections for freedom of expression and freedom of thought, and rights to free association and to free assembly. Taken collectively, these can be understood to form the underpinnings of a broad right of political participation. However, there is no direct equivalent to the American right to petition. Moreover, the structure of the Canadian constitution is significantly different than the American constitution. In particular, judicial approaches to the Charter of Rights and Freedoms have made the consideration of constitutional rights in the context of civil litigation highly problematic. In general, American courts have been willing to say that the judicial orders and the enforcement of common law civil claims may, in and of themselves, constitute a violation of the American constitution. In the Canadian context, however, the courts have generally been unwilling to say that judicial processes, in the absence of some direct government involvement as a party to the litigation, invokes any constitutional issues. As such, the rights contained in the Charter are of little use, other than

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as conceptual and jurisprudential principles, in framing issues of slapp lawsuits. A fuller discussion of these constitutional issues, and how the courts have dealt with them, is included in Chapter 3. The broader one interprets a “right of political participation,” in general the lower the tolerance one will have for civil litigation in the context of political disputes. On the one hand, it seems overly restrictive to limit political participation to contexts in which there is direct representation or lobbying to state agencies. This imposes a formal definition of political participation that fails to capture the full range of political activity in which many social movements engage. It would restrict protection against slapps to more formal interest groups and organizations that specifically address themselves towards trying to influence public policy at an institutional level. On the other hand, extending protection against slapps to the full range of social movement activity, and the broadest range of political participation and expression, might preclude defendants who have suffered genuine injury from seeking redress. The debate over the scope of the slapp definition leads to different outcomes depending on whether one is inclined to favour political expression over access to courts or vice versa. One of the difficulties with the debate as it has developed, however, is that it tends to present these questions as dichotomous options. The ability to express oneself politically and to engage in a variety of political activities without fear of retaliation is a fundamental democratic value. At the same time, access to the courts is a fundamental component of the rule of law and, as such, is also an important democratic value. We need to develop a conceptual and analytical framework that takes into account the main components of slapp lawsuits, while at the same time providing a mechanism for assessing the dangers to democratic values posed by a variety of litigation possibilities. The primary characteristics of such a framework would include the following factors: first, the identity and relative power and resources of the parties to the litigation; second, as suggested above, the nature of the issue being disputed, and in particular the degree to which the issues are public or private; and third, the degree to which the issues at stake raise questions about the functioning of democratic political institutions. In part, this third factor relates back to the second factor of the equation— the private/public nature of the issue—but it also raises questions about the degree to which institutional processes of democracy are affected by the litigation. slapps designed to frustrate participation in an election

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campaign, or the function of representative bodies such as legislatures or municipal councils, need to be assessed. Taking these sorts of concerns into account leads to a typology that maps the risk to democratic values in relation to the nature of the parties to a slapp lawsuit. slapp plaintiffs may be individuals, individuals operating as corporate or organizational representatives, corporations themselves, or politicians/public officials. This list provides a continuum from individual interests to more collective and representational interests. Defendants fall on a similar continuum, ranging from individuals, to individuals representing social movement organizations, to social movement organizations themselves. Defendants may also include media outlets and politicians/public officials. These latter two categories, by virtue of their function, raise important issues regarding the institutional and structural integrity of our systems of democratic representation and accountability. If one takes these continuums of party types, and maps onto them the public nature of issues, one gets a typology as set out in Table 2.2. This table shows the various combinations of parties to a slapp lawsuit and the relative risk to democratic values represented by each configuration. As discussed earlier, plaintiffs to a slapp suit may be individuals suing in their own right. This is the situation where an individual, with no broader political or corporate affiliation, feels aggrieved by the actions of the defendant and sues. It may involve a broader political battle, but frequently does not. Usually cases of this sort involve minimal risk to democratic values. The costs of litigation, in most instances, will be a barrier to many individuals commencing a slapp lawsuit on their own. Consequently, these cases may be relatively rare. Individuals will be far more likely to take advantage of other forums for resolving disputes. This is particularly so where the defendant is also an individual. Take the hypothetical example of two homeowners in a dispute over property development. In most instances, these sorts of disputes will be dealt with in forums provided by municipal law, such as a committee of adjustment created by municipal councils, or through various municipal board proceedings. Generally there are a variety of opportunities for lodging objections to development initiatives, including provisions for appeal. It is relatively unlikely that one party would sue for defamation or one of the other typical slapp torts in order to prevent the complainant from pursuing his or her objections. It is, however, quite conceivable in this sort of dispute that damage to property may occur or that instances of slander or libel may take place.

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Table 2.2 Democratic Threats of slapp Lawsuits by Plaintiff and Defendant Defendant

Individual Social as social movement movement organization/ Politician/ organization civil society Newspaper/ political party/ Plaintiff Individual representative organization media outlet public official

Individual Minimal Moderate Moderate Moderate Major Moderate Major Major Major

Individual as Minimal Moderate Moderate Moderate Major corporate or Moderate/ Major Major Major organization Major representative

Corporation or Minimal Moderate Moderate Moderate Major industry Moderate/Major Major Major Major association

Politician/ Moderate Major Major Major Major political party/ Major public official 14-01-29 12:28 PM 32 Blocking Public Participation

This can arise when property owners, neighbours, or even family members become embroiled in heated disputes. In such cases, litigation may reflect a genuine private dispute between two individuals. While there may be a political dimension as well, in that some recourse to state authorities for planning permission or some other regulatory approval is part of the overall dispute, the level of political engagement is generally low and the nature of the issue remains relatively private. In other words, it does not reflect a broader public issue that goes beyond the interests of the two individuals. This is reflected in Table 2.1 by disputes involving an individual against another individual with only a minimal threat to democratic values. However, depending on the nature of the issue and the degree of political involvement of the defendant, these cases might be categorized as posing moderate threats to democratic participation. Normally, however, this would be reflected by the involvement of a broader array of individuals and groups in the conflict, thereby transforming it from a purely individual dispute. Overall, the level of democratic concern increases as the identity of both plaintiff and defendant changes. As the collective nature of the activities of either party increases, so the potential threat to democracy increases. Plaintiffs take on a collective nature when they are either corporations or industry associations. These are two of the most common filers of slapp lawsuits. It needs to be kept in mind, however, that frequently court action may be commenced by a named individual who is not acting on his own behalf, but rather as an agent of proxy for a broader collective interest. An individual, such as a corporate president or industry representative, may also, therefore, bring a slapp lawsuit, but with the support and resources of the broader corporation. It is this resource question that makes the plaintiff’s identity particularly important in assessing the threat to democratic values. As discussed above, it is the generally superior resource capacity of plaintiffs in slapp lawsuits that enables them to use the very costly litigation process as a strategic or tactical tool in a broader political campaign. Corporations and trade associations, as opposed to individuals acting in their own capacity, are more likely to fit Marc Galanter’s characterization of litigation repeat players. They will have the ability to use their resources to greater advantage in order to block public participation. For this reason, the threat to democratic participation becomes elevated as the collective nature of the plaintiff increases. Similarly, the collective nature of the target of a slapp lawsuit is also important. Where individuals have come together to form civic asso-

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ciations, or to participate in a variety of social movement organizations, there is less likelihood that the dispute between plaintiff and defendant is one of a private nature. In other words, the involvement of citizens more broadly in the dispute is indicative that the underlying political issue that prompted the litigation is, in fact, one of public rather than private concern. This is a handy shortcut to determining whether or not there is a significant public issue at play in slapp cases. Rather than evaluating the substantive nature of the political dispute, we should concern ourselves with the degree of public engagement around the issue. The identity of the slapp target gives us insight on the degree and type of political engagement that is being blocked. As a result, where the target of a slapp lawsuit is a social movement or civil society organization, there is a greater threat to values of public participation. Even where the plaintiff might be an individual, the threat to political engagement and participation increases if there is an effort to use the courts to silence political criticism and opposition. A relatively simple example should demonstrate this. Building an addition to a house often results in disputes between neighbours. As discussed above, this sort of case usually remains a largely private concern, with few democratic engagement issues. However, if a larger group of neighbours and residents organized to oppose the plaintiff’s actions, then our assessment might be different. Say, for example, the proposed use of the plaintiff’s property has environmental implications that will affect the neighbourhood and the local residents’ association opposes the proposal. If the property owner sues the association for defamation, or even individuals within the association for actions they took as part of it, then what began as a purely private dispute, takes on broader collective elements. In this case, even though the plaintiff is an individual, his or her lawsuit has the effect of curtailing or blocking political engagement and public participation, with the result that the threat to democratic values increases. As the resources of corporations or industry associations are brought against social movement and civil society organizations, the threat level is likely to increase accordingly. Table 2.2 shows that the democratic risk of different pairings of parties cannot be categorized in an absolute fashion; regardless of party identity, the democratic risk may vary from minimal to major, depending on context. However, as the nature of parties involve greater degrees of collective mobilization, the likelihood of minimal risk situations tends to decrease. Table 2.2 includes two additional categories that have not been discussed and that frequently are not included in discussions of slapps: newspapers or media outlets and politicians or public officials. Newspa-

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pers and media outlets are frequent targets of defamation lawsuits. It is clear that a free and independent news media is a critical component of a democracy. Lawsuits designed to chill the publication of information about public issues, including the political activities of activists, represents a very serious threat to democratic values. Indeed, there is considerable jurisprudence within the field of defamation law relating to the media. Newspapers and media outlets generally have a variety of qualified privileges related to the publication of news reports. Moreover, they frequently have resources at their disposal to fight these sorts of lawsuits. Many corporate newspapers, for example, are very much repeat players in the legal arena, employing teams of lawyers that vet news stories for potential litigation risks in advance of publication. Frequently, allegations made by the target of a slapp lawsuit may have been published in the news media. It is often the case, however, that the media outlets, because of the privileges they enjoy, are not named in the lawsuit. The public issues raised in the news story, therefore, operate to insulate the newspaper from suit, but not the individual or group making the allegations. The news media, however, is changing dramatically. The development of new social media, including blogs, Twitter, and Facebook, has meant that there are a range of outlets beyond established news media sources where social movement organizations publish information and accounts of their activities. In some instances, these outlets may operate as alternative news sources. The question arises, then, to what extent these new media enjoy the same degree of protection from defamation suits as mainstream media. Allegations posted on a social movement organization’s website, or repeated in an alternative news media outlet or blog, may lead to a defamation suit against the organization, the individual, or the news outlet. These sorts of cases do not share the primary features of a typical defamation case brought against a major newspaper or television news organization. Rather, they are more typical of slapp lawsuits, even though they have democratic implications similar to those against a mainstream media source. The final category that needs to be considered is that of politicians or public officials involved in slapps, either as plaintiffs or defendants. This is a category that was specifically excluded from Pring and Canan’s original classification. The latter required that the defendant in a slapp suit be a private rather than a public entity, and it flows directly from basing the analysis of slapps on the us constitutional protection for the right to petition. slapps, however, can be brought by or brought against public

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officials, political parties, and politicians. These sorts of lawsuits arguably represent some of the most serious threats to democratic principles and values of public participation and engagement. It is for this reason that in Table 2.2 nearly every combination of lawsuit involving public officials as either plaintiffs or defendants is labelled as a major democratic threat. Politicians, at the municipal, provincial, and federal levels, must be able to speak out on public issues. Indeed, this is one of their primary roles within our political system. The effectiveness with which they do it is an important basis on which we hold them accountable at election time. slapp lawsuits directed at politicians commenting on issues of importance to their constituents, or the public generally, undermine our system of democratic accountability and risk subverting our political processes in a very direct fashion. Historically, notions of parliamentary privilege operated to insulate politicians from lawsuits. This privilege helped to prevent politicians from being sued for defamation as a result of anything said on the floor of the House of Commons or of a provincial legislature. The privilege also extended to things said in the proceedings of a legislative committee. Such rules served to safeguard democratic processes from slapp litigation, but they reflect a view of politics and of Parliament that is increasingly dated. To an ever greater extent, legislatures are not the primary arena in which political discourse occurs. Politicians have websites and blogs, and they use Twitter, Facebook, and other social media to reach the public. In effect, politicians speak directly to the public through these various chan- nels, rather than to each other across the floor of the legislature. Indeed, in many jurisdictions in Canada, the government often functions for considerable periods of time without the legislature sitting. In this context, the potential for slapp lawsuits being brought as a result of things said by elected members of the legislature is increasing. In general, the role of politicians and public officials must be free from interference and they must feel they can do their job without risk of personal loss or repercus- sions. slapp lawsuits aimed at politicians and public officials, then, pose a serious threat to democratic processes. At the same time, however, politicians and public officials are increasingly making use of the courts to silence criticism. Generally, the ability to freely critique government policy or the actions of politicians is part and parcel of our system of democratic accountability. More and more within the Canadian system, however, politicians and public officials have sought recourse to the courts to counter criticism of their decisions. Often, this

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may amount to no more than a threat, but in other instances actual litigation has resulted. Cases of a politician or a public official suing a member of the public or a civil society organization are certainly troubling and problematic. However, an even greater concern is the situation where a politician sues another politician or public official for slander or defamation. In this instance, the democratic tussle of political life is transferred to the courts, often as a defamation case. Prime Minister Stephen Harp- er’s lawsuit against the Liberal Party of Canada in the Chuck Cadman affair is an example of this sort of lawsuit. Premier Jean Charest of Que- bec similarly sued his former Justice Minister over allegations of interference in the appointment of judges. Most recently, Defence Minister Peter MacKay threatened to sue critics over repeated accusations of wrongdoing related to his alleged use of a Ministry of Defence search-and-rescue helicopter for personal and political trips. Regardless of whether any these lawsuits would have merit in court, they operate to undermine the functioning of democratic institutions. In this sense, these types of slapps have an added component that goes beyond simply the blocking of public participation. Rather, they potentially undermine the institutional basis of our systems of democratic accountability. Indeed, this is one of the reasons that politicians rarely sue each other, regardless of how outlandish an accusation or allegation might be. Generally, allegations of this sort should be thought of as part of public life and political reality. It seems beyond the accepted rules of the game to step outside that process and seek recourse in the courts. Despite this, such lawsuits can prove extremely effective at silencing criticism and side- lining political opponents.

Conclusion

slapps take on a wide variety of forms. They can involve a range of types and be concealed within a range of civil causes of action. The key element of slapps, however, is their capacity to transform public issues into what appear to be private civil law issues. The intention behind this dispute transformation is to block or prevent activists and critics from engaging in public, political participation. Moreover, the resource imbalance between the parties to the litigation frequently means that the defendants in these cases are forced either to capitulate or to devote almost all of their time and resources to legal, rather than political, battles. The effect is often to severely cripple civil society organizations and to block political

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opposition. The impact of these cases often reaches beyond the immediate targets of the litigation to others who might become involved in the political campaign. These lawsuits are frequently unmeritorious. Indeed, when fought through to their conclusions, slapp lawsuits almost invariably are lost by the plaintiffs. However, even if the lawsuits are lost, the filers of slapps may achieve their aims. Moreover, it is likely true that the vast majority of slapp lawsuits are never litigated to a final conclusion. The complexities of the litigation process mean that there are numerous opportunities along the way to effectively block political participation. In general, slapp lawsuits represent a significant threat to democratic values of participation and engagement. However, not all lawsuits undermine democratic values to the same degree. The extent to which such values are undermined depends on an assessment of the nature of the issue at stake, combined with the nature of the parties to the litigation. In assessing slapps in terms of the democratic values of participation and engagement, we can attempt to balance the competing goals of protecting public participation while safeguarding the right of individuals to seek recourse to the courts in appropriate cases.

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In this chapter, we will examine the Canadian experience of slapps from a historical and case-based perspective. In this way, the degree to which slapps are an issue in Canada, as well as the implications for public participation and expression, can be assessed. Utilizing the typology developed in Chapter 2, we can begin to examine in a more concrete fashion the democratic implications of slapp litigation. The first section of the chapter will provide an overview of the slapp phenomenon in Canada, including an examination of a number of specific slapp cases from different parts of the country, representing different categories of the typology. The second part of the chapter will examine judicial approaches to slapps and explore several prominent cases that gained considerable notoriety, as well as media and judicial attention. This will permit a consideration of how courts have approached the problem of slapps, the degree to which the courts have conceptualized the democratic implications of slapps, and an assessment of the application of the Charter of Rights and Freedoms to the issue. It needs to be noted, however, that it extremely difficult to quantify the exact number of slapp cases or their effect on public participation. This flows from two characteristics of slapps. First, the study of judicial behaviour frequently relies on an analysis of actual decisions by the courts. In the case of slapps, however, many cases do not make it to the point where a decision is issued by the courts. Cases that are abandoned or settled never appear in court reports. Even for those cases that do result in an actual judicial decision, it still remains difficult to conduct a quan-

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tifiable analysis. In some instances, slapp litigation never gets beyond a preliminary judicial decision. Often, if the court grants an interlocutory injunction in a case, the plaintiff may consider their objectives met. Many of these decisions are unreported. In Canada, there is no comprehensive system for recording judicial outcomes. The system of legal precedent, used by both legal scholars and practising lawyers, relies on decisions that are actually reported in various judicial publications. The publication and reporting of judicial decisions is not uniform or universal. Judicial decisions that are not reported simply remain as decisions on file at the local court. Most judicial report series are also highly edited and selective, tending to focus on appellate and high court decisions that have significance in terms of the articulation of legal principles and the potential to act as a precedent in future cases. In other words, reported decisions only give us a partial picture of the range of slapp cases. The advent of digital reporting series has increased the coverage of cases and certainly provides greater access to a range of judicial decisions than was previously available (Martin 2008). Even so, preliminary decisions and motions that are issued as part of a case frequently do not get reported. It is necessary, therefore, to rely on press reports and accounts of slapps from a variety of sources, in addition to reported judicial cases, to develop a more comprehensive and accurate picture of slapps. However, it may still be virtually impossible to get a sense of the full effect of slapps on the political environment. The chilling effect of slapps on public participation may extend far beyond any single case. For every group or individual that is sued for engaging with public issues, there may be many more that subsequently fear to do so. Nevertheless, a survey of slapp cases in Canada reveals very clearly the political motivations of these lawsuits and the resource inequities that exist between parties. As illustrated in Pring and Canon’s study of slapps, many of these cases involve litigation against individuals or very small groups that lack the resources to defend themselves (Pring and Canan 1996, ch. 2). The emergence of slapps on the Canadian legal-political scene can be dated to the late 1980s and early 1990s (Tollefson 1996; Scott and Tollef- son 2010). Many of these early cases involved environmental issues, land- use planning decisions, or a variety of consumer protection and consumer safety issues. Over the past two decades, however, slapps have continued to represent a prominent and important issue. slapp litigation continues to make headlines, and it results in activists having to defend themselves in court. The cases that are discussed below are necessarily selective,

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gleaned primarily from judicial reports and media accounts. They by no means represent a comprehensive list of slapp litigation that has taken place in Canada. They do, however, point to the continued incidence of this sort of litigation, and are illustrative of the range and type of cases that are characteristic of slapps. In broad terms, the cases discussed fall into three categories of slapps highlighted in our typology: individuals versus individuals, individuals/corporations versus collective groups, and public officials versus individuals/collective groups.

Individuals versus Individuals: slapps and Non-slapps

According to the typology developed in Chapter 2, individual-versus-individual cases tend to raise the fewest democratic concerns. This is because these issues are more likely to be private in nature, and less likely to raise questions of collective political action. While there may be resource differences in cases of this nature, the likelihood is far greater that neither party will be a “repeat player.” It is troubling when an individual is prevented from being political engaged, however, it is of less concern than litigation aimed at the collective expression of political engagement. Claims brought against individual activists may not constitute a slapp and may raise very few democratic issues. The case of Langille v. McGrath (2001) is one example of a case where litigation did not undermine democratic values to any great extent. Like many slapp cases, Langille v. McGrath involved a local dispute, in this instance over the operation of a family-run gravel pit in Saint John, New Brunswick. The plaintiffs were the owners of the gravel pit, while the defendant, Odette McGrath, was a member of a local community group opposed to the operation of the pit in its neighbourhood. In the course of a series of televised hearings before city council regarding the operation of the gravel pit, McGrath made several defamatory statements which she then repeated to local television reporters. In particular, she stated that the owners of the gravel pit had threatened to have her “bumped off” and that she feared for her physical safety (Langille v. McGrath 2001, para. 5–6). At trial, it was found that although the plaintiff had, in fact, been quite rude to the defendant, there was no basis for McGrath’s allegations. While the facts of the McGrath case indicate that the political context in which these statements took place was quite heated, and that there was considerable anger and hostility on both sides of the dispute, this was nevertheless a case in which the defendant’s statements were clearly defamatory. Alleging that someone plans to commit a serious criminal offence,

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with no basis to that claim, actually undermines democratic practice rather than supporting it. McGrath’s statements were not related to the operation of the gravel pit, the effects of its operation, or any other matter relevant to the dispute. Rather, they were simply a personal and vindictive attack. As a result, the court found that this was a case of defamation and awarded damages in favour of the plaintiffs. Despite the broader political potential of the suit, this local individual-versus-individual dispute had few democratic implications. Langille v. McGrath can be contrasted to a number of other cases that can be also categorized as individual-versus-individual disputes. These cases highlight the importance of context in assessing the democratic risk of slapps. The case of Scory v. Krannitz, DeWitte, and the Glen Valley Watershed Society (2011) was a dispute between neighbouring landown- ers that had a wider political and collective element. The plaintiff owned forested land in Langley, British Columbia, that he wanted to clear and turn into farmland. In order to do that, he required a permit from the City of Langley to dump 750,000 cubic metres of fill onto the property to level out low-lying areas. His application was opposed by Krannitz and DeWitte, two neighbours who were concerned about the ecological effect on the area, including the impact on watercourses that ran through their property. As part of their campaign, Krannitz and DeWitte began a petition and, along with the Glen Valley Watershed Society (of which Kran- nitz was a member), made oral and written depositions to the municipal council (Scory v. Krannitz, DeWitte, and the Glen Valley Watershed Society 2011; Saxe and Campbell 2011). As a result, the municipality deferred their decision on the application in order to gather additional information on the environmental effects of the proposal. At this point, Scory launched a lawsuit against his neighbours and the watershed society. The lawsuit claimed damages in the amount of $13 million and alleged six different causes of action, including defamation, injurious falsehood, conspiracy to injure, unlawful interference with economic relations, trespass, and nuisance. Scory also sued DeWitte specifically for statements he had made at a public city council meeting (Saxe and Campbell 2011). In the end, the entire lawsuit was dismissed on a summary basis. The court found that Scory had grossly exaggerated the nature of the statements made by the defendants, in some instances fabri- cating allegations against them, and also that his statement of claim failed to establish any of the causes of action. In other words, the facts as alleged by Scory did not actually establish the torts that had been claimed.

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The court also found that Scory had behaved in bad faith and that his action was intended to intimidate both the defendants and others from participating in public debate. As a result, Scory was ordered to pay the defendants “special costs” amounting to roughly 90 percent of their actual legal costs. Generally, most costs awards only cover roughly one-third of legal costs (Saxe and Campbell 2011). In some respects the Scory case appears to be an example of the judicial process working effectively to prevent a slapp from proceeding. The court dismissed the case on a summary basis and awarded the maximum costs allowable, thereby partially reimbursing the defendants. Neverthe- less, the defendants were still out of pocket as a result of the litigation. The case produced three separate reported judgments of the British Co- lumbia Supreme Court before it was finally resolved. It also needs to be kept in mind that Scory represented himself in the case. As a result, he made important strategic errors that undoubtedly contributed to the ex- ceptional cost award made against him. He failed to disclose documents and materials in his possession as required by the court and, at the motion to dismiss the case, he failed to attend. Had he retained legal counsel, his statement of claim might have been framed in a more effective fashion to avoid summary dismissal and other, more effective strategic choices might have been made. In many slapps, although the actual claim may be without merit, the pleadings are crafted in a sufficiently effective fashion to allow the case to go to trial. The Scory case is also significant in that it demonstrates very clearly that even in neighbour-versus-neighbour scenarios there may be an important public participation component. In this respect, the case is very different from Langille v. McGrath. The conflict between the neighbours in the Scory case was reflective of a broader range of participation by the defendants in a local collective organization. The defendants were exercising their civic rights to petition government, to discuss public issues within the community, to participate in a community organization, and to advocate around an issue to gain broader support and influence political decision-makers.

Corporations versus Collective Interests

As discussed in Chapter 2, the democratic risks involved in slapps increase as the parties to the litigation take on a more collective nature. In the case of plaintiffs, this is because corporations, governments, and other collective actors such as industry associations can bring great resources to bear

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against defendants. Similarly, slapps brought against defendants that are collective actors pose a greater threat to democratic political engagement. Many slapp lawsuits fall within this category, and indeed some of the cases that have received the greatest notoriety demonstrate these characteristics.

British Columbia Logging Cases: Early slapps in Canada

In the late 1980s and early 1990s, a number of slapp cases pitted environmental activists against large British Columbia logging companies. Many of these cases involved protests against clear-cutting in sensitive environmental areas of the province. In 1991, MacMillan Bloedel sued thirty-four individuals and the Western Canada Wilderness Committee over protests against the clear-cutting of an old-growth forest in Vancou- ver Island’s Tsitika Valley. The company also launched a second lawsuit against activists and environmental organizations protesting clear-cut logging in Clayoquot Sound, Vancouver Island (Goldberg 1993; Scott and Tollefson 2010, 47). In a third lawsuit, the company sought up to $15 million in damages from the Galiano Trust Committee, municipal council- lors, and the Galiano Conservancy Association (Scott and Tollefson 2010, 47). This was aimed at the trust committee’s decision to enact new bylaws in response to community concerns over the environmental integrity of Galiano Island’s water supply and rural nature. The result of these democratically enacted bylaws was to negatively affect the MacMillan Bloedel’s ability to log or to sell forested land it owned on the island. The company had planned to sell off land purchased for $144,000 for over $20 million (Goldberg 1993; MacMillan Bloedel v. Galiano Island Trust Committee 1995). In a similar case, a New Zealand–owned forestry company sued forty-one individuals and the Carmanah Forestry Society for protesting the company’s clear-cut logging of the ancient rainforest of the Walbran Valley (Goldberg 1993). These early cases demonstrate many of the main characteristics of slapps. In all of them, the plaintiffs alleged the defendants were involved in an unlawful conspiracy to harm their economic interests. Targets of the lawsuits included environmental activists, organizations, local community groups, politicians, and local individuals, and the plaintiffs were large corporate interests—repeat players in the language of Galanter. Each of the cases demonstrates the inequality of resources that frequently make slapps a David v. Goliath type of litigation. These early cases, however, also served to signal that slapps could be used effectively as a strat-

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egy against political opponents. Political mobilization and engagement, including the results of democratic governance processes, were clearly threatened by these lawsuits.

The Toronto Port Authority Case (2006)

The characteristics of the early slapp lawsuits continue to be evident in more recent litigation that pits corporate interests against relatively small and underfunded social movement organizations. The Toronto Port Au- thority case is one such example. In 2006, the Toronto Port Authority was pursuing a controversial plan for the redevelopment of the Toronto waterfront. This included an expansion of the Toronto Island Airport, as well as the creation of a fixed link to the Toronto Islands. The proposal resulted in a fierce political battle. A non-profit group called Community Air had been highly critical of the Port Authority and its development proposals. The group sent a briefing memo to the federal transport minister, who oversees the Port Authority, and then later posted the memo on its website. As a result, the Port Authority launched a lawsuit against the organization and seven of its directors (Barber 2006; CBC News 2006). The suit claimed that the directors were “zealous and unbalanced” in their advocacy and also claimed that each director pay $500,000 in damages for defamation, $250,000 in aggravated damages, and another $100,000 in punitive damages to the Port Authority, its president, and two other members of the organization. In total, the lawsuit claimed $6.8 million from seven community members (Barber 2006; cbc News 2006). The lawsuit also claimed an injunction that would prevent the activists from making any more defamatory statements. It was framed in such broad terms that almost every public statement that any of the activists had ever made would have been covered by its terms, despite the fact that virtually all of the statements in the original memo related to information publicly available and previously reported in the media (Barber 2006). slapp plaintiffs frequently use litigation like this to selectively target political opponents for repeating or publishing information already in the public domain. The democratic implications of this sort of injunctive relief are a matter of considerable concern.

Mainstream Canada v. Staniford (2012) This case involved an activist by the name of Don Staniford, who was involved in a 2011 campaign over the ecological impact of salmon farming

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in British Columbia. Mainstream Canada, the second largest salmon- farming company in British Columbia, argued that Staniford defamed the organization when he published three pamphlets. The pamphlets were entitled “The Salmon Farming Kills Campaign,” “Silent Spring of the Sea,” and “Smoke on the Water, Cancer on the Coast” (Canadian Press 2012a). The last pamphlet included graphics that looked like cigarette packages and warnings that “Salmon Farming Kills like Smoking.” According to Mainstream Canada’s lawyers, Staniford’s campaign was aimed at frustrating the industry’s attempt to have the World Wildlife Fund develop a certification scheme for farmed salmon. Their lawsuit claimed $100,000 in general damages, as well as an additional $25,000 in punitive damages, and a permanent injunction requiring Staniford to stop writing, publishing, or broadcasting defamatory words against the company (Canadian Press 2012a). The Staniford case is obviously one in which a major corporation is suing an individual. This category of slapp is one in which, according to our typology, the risks to democratic values can be fairly high, although this is not always the case. It depends on the context, including the nature of the issues and the degree to which the individual is part of a broader campaign of political activism. As discussed earlier, individuals may be the named defendant in litigation, but they are often targeted because they are part of a broader movement. This is very much the situation in the Staniford case. Staniford was a long-time activist who was well known to the industry. In 2001, he had been active in protesting the expansion of salmon farming in Scotland. At that time he was also threatened with legal action, although the case never came to trial. He had previously been sued in British Co- lumbia as well for his activism around the salmon fish-farming industry (Canadian Press 2012b). In 2002, he began working with the Salmon Farm Protest group and won a British Environment and Media award. In a 2002 press release, the World Wildlife Federation credited Staniford’s activism in Scotland for persuading the Scottish Parliament to hold a formal inquiry into fish farming (Canadian Press 2012a). He wrote a widely cited critique of fish farming in Scotland and has been credited with uncovering evidence that workers in Scotland had been ordered to use illegal chemicals. In other words, while Staniford’s tactics and rhetoric might have seemed extreme to some, they were certainly backed up by a history of political activism and a base of knowledge. Targeting Staniford may therefore also be understood not only as an attempt to prevent him from criticizing the industry, but also as a strategy to chill the anti-fish-farming movement more broadly.

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The case brought by Mainstream further illustrates the significant resource imbalance that often characterizes slapps. While certainly a large company within the Canadian salmon-fishing context, Mainstream Canada is a subsidiary of the Norwegian company Cermaq, which has operations in Chile, Canada, Scotland, and Vietnam. In addition, the Nor- wegian government is a majority shareholder in the company. In order to pursue the case, the company hired a prominent lawyer from one of the largest law firms in Canada. It declared that at trial it planned to call at least twenty witnesses, including its Director of Corporate Affairs in Norway, the Executive Director of the Canadian Aquaculture Industry Al- liance, and the Executive Director of the bc Salmon Farmers Association. By contrast, Staniford, who was unemployed at the time, was being represented by a lawyer from a two-person firm. Court documents indicated that Staniford only planned to call one expert witness, a professor at the University of Victoria (Canadian Press 2012a).

The Concerned Residents of Hillsdale Case (2008)

Many slapps involve lawsuits brought by developers against local grassroots associations of residents. In this case, a local residents group in the community of Hillsdale, northwest of Barrie, Ontario, had opposed proposals for the development of a major new condominium project. The project would have added 473 new homes in a community of only 200 (cela 2012, 3). The residents felt that the project was too large and did not fit with the nature of the town and planned to oppose the proposal before the Ontario Municipal Board (OMB). In this instance, the developer, Hillsdale Land Corporation, a wholly owned subsidiary of Geranium Corporation, had a history of slapp intimidation. Geranium Corporation, through another of its subsidiaries, had just won approval before the omb for a $1 billion development on Lake Simcoe. After securing its victory, Geranium sued its opponents and asked the omb for $3.6 million in costs to be levied against those who had opposed the proposal before the board (Wilson 2008; Environmental Commissioner of Ontario 2009). This case provided the impetus for many groups to demand anti-slapp legislation in Ontario, and is discussed in more detail in Chapter 5. In the meantime, Geranium’s action cast a significant chill on groups in the region. In the case of Hillsdale, the community group decided to withdraw its opposition to the proposal and changed its status at the omb hearings from that of a full “party” to merely a “participant.” Members of

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the group described the prospect of being liable for a huge cost award, or potentially of being sued directly, as the final straw (Contento 2008). The group barely had the resources to hire a lawyer, and members simply did not want to expose themselves to this sort of financial risk. The significance of this change in status for the Hillsdale community group was that it could no longer call witnesses or present evidence before the omb. In effect, their voice was silenced at the regulatory hearing designed to provide a forum for local concerns to be expressed. At the end of the day, the hearing into the proposed development took only two days and was approved with an oral decision by the panel hearing the case (Contento 2008). There is some evidence that the prospect of large cost awards and lawsuits brought against residents’ associations has affected other groups as well. In Creemore, Ontario, the Creemore Area Residents’ Association had been waging a lengthy battle against a proposal for a new housing development that would have doubled the size of the town. The association sought to have the size of the development halved. Unexpectedly, however, it suddenly agreed to the proposal and withdrew its opposition with only slight modifications. John Crispo, a town councillor in Simcoe County, has stated that the threat of costs in other cases played a role in the group’s decision to withdraw its opposition (cela 2012, 3; Contento 2008).

Barrick Gold and Banro v. Éditions Ecosociété (2008)

The Barrick Gold and Banro cases represent a more overt attempt to stifle freedom of expression. In these instances, two major corporations sued a small publishing house and the authors of a book that alleged wrongdoing within the gold-mining industry. In 2008, Les Éditions Ecosociété published a book by authors Alain Denealt, Delphine Abadie, and William Sacher entitled Noir Canada: Pillage, corruption, et criminalité en Afrique (Black Canada: Plundering, Corruption, and Crime in Africa). Based primarily on previously published material from the international press and United Nations Reports, the book argued that the mining companies Bar- rick Gold and Banro had been involved in corruption and criminality in Africa, particularly in Tanzania and the Democratic Republic of Congo. It was intended to be a small academic study with a limited print run (Val- lantin 2011). After the book’s launch, however, both companies sued the publisher and the authors. Barrick Gold sued for $5 million, alleging damage to its

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reputation, and an additional $1 million, alleging malicious intent on the part of the publisher and the authors (caut 2011; Silver 2012; Vallantin 2011). Banro launched its lawsuit six weeks later, also suing for $5 million. In this case, then, the publisher and authors effectively faced bankruptcy. The Éditions Ecosociété case is extremely significant in that it goes beyond the typical slapp. It was not just political expression and participation that was endangered, but rather a broader range of academic, journalistic, and intellectual expression. As a result, the case drew international attention (caut 2011; Vallantin 2011). Significantly, Quebec is one of the few jurisdictions with anti-slapp regulations in place. The Bar- rick lawsuit against Éditions Ecosociété was brought under these regulations, which are fully discussed in Chapter 5. Under Quebec’s legislative scheme, it is possible for a defendant to bring forward a motion to have a lawsuit deemed abusive. If that is successful, the court has the authority to dismiss the case or to put a number of conditions on the conduct of the plaintiff. In this case, the Quebec Superior Court did find that Barrick’s case appeared abusive; however, it also determined that, because the allegations contained in the book were serious, the case would be permitted to proceed. Under the terms of Quebec’s anti-slapp legislation, the court also imposed the condition that the plaintiff would be responsible for the defendant’s legal fees. This required Barrick to pay $143,000 to the defendants to prepare their defence (caut 2011). While the court’s condition certainly enabled the defendants to more easily mount a defence, it did nothing to prevent a chill on public discussion of the issues raised in the book. Indeed, the authors of the book described themselves as feeling under a permanent state of “auto-censorship,” unable to discuss their own book at public events or in the news media (Vallantin 2011). On October 18, 2011, the parties to the dispute issued a joint statement announcing that a settlement of the lawsuit had been reached (Memoran- dum of Settlement 2011). The statement indicated that the defendants had agreed to make a “significant payment” to Barrick and had agreed to stop publishing the book. In addition, the defendants conceded that they did not have evidence to support the allegations made against Barrick. The defendants also agreed that Barrick’s lawsuit was not abusive and had been undertaken in good faith. The settlement has been criticized as an example of how the legal system can be used to silence activists and academic debate over public issues. Pierre Noreau, a Montreal law professor, and fourteen other Quebec academics and authors published an open letter in Le Devoir the day after the settlement. They stated that “the

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lawsuit was from the very beginning not a procedure meant to refute but rather to silence the authors and their legitimate questions” (caut 2011). The authors, while maintaining that the book raised legitimate questions deserving of public debate, felt that the settlement was necessary so that they could end the three-and-a-half-year legal battle and get out of the courtroom.1 The Banro litigation against the defendants was launched in Ontario rather than Quebec (Silver 2012). This demonstrates an additional feature of slapp litigation, namely that of “forum shopping,” which is something that repeat players, such as major corporations, are able to do with relative ease. Despite the book having been published in Quebec, it was distributed more broadly, although on a limited basis. Fewer than a hundred copies of the book were distributed through Ontario bookstores (Éditions Ecosociété v. Banro Corp. 2012; Vallantin 2011), although it was available through libraries and online purchases. But Banro was also an Ontario-based corporation, which provided a basis to bring its case in Ontario courts. While the defendants did bring a motion to have the case transferred to Quebec, which would have brought it under the same anti-slapp legislation that governed the Barrick litigation, the motion was unsuccessful, leaving the case in Ontario where there is no anti-slapp legislation. The publisher and the authors appealed the decision on the motion, and eventually the appeal went all the way to the Supreme Court of Canada, which upheld the original decision (Éditions Ecosociété v. Banro Corp. 2012). That decision, however, was not released until April 2012, nearly four years after the book was published. This case, which now must go back before the Ontario courts for trial, very clearly demonstrates the length and complexity of slapps.

Public Officials versus Local Demonstrators

Lawsuits against individual citizens or social movement organizations by public officials constitute a particularly serious threat to democratic values of political engagement as they undermine our systems of democratic accountability. At the same time, there is no doubt that there may be instances where it is appropriate for public officials to seek recourse to the courts. The critical question is whether such lawsuits relate to the plaintiffs’ role as public officials or to aspects of their private lives. Where municipalities or governments sue demonstrators or political critics, however, there can be little doubt that values of democratic accountability are

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compromised. Chapter 4 is devoted to this phenomenon within a parliamentary context. However, a few examples of municipal officials engaging in slapp litigation are worthy of consideration. In City of Guelph v. Hanlon Creek Protesters, the City of Guelph and Belmont Equities launched a $5 million lawsuit against a group of five protesters. These individuals were part of an environmental group opposed to the construction of a business park in an allegedly environmentally sensitive area. The dispute began in 2009 when a group of thirty demonstrators walked onto the site of the planned business park, preventing preliminary work on its development (hcbpoccupation 2009; O’Flanagan 2012). The protesters set up camp and occupied the site for three weeks. In addition to the damage claim, the city also sought and was granted an interlocutory injunction restraining the activities of the protesters. In February 2012, it was announced that the lawsuit had been discontinued by the city as the protesters had complied with the injunction and the contractors work had been completed (O’Flanagan 2012). One city counsellor characterized the litigation as necessary because it was unclear what damage the protesters might cause to the value of the property and the construction schedule. The suit provided a mechanism, he argued, to recover those losses. This is an unusual sort of lawsuit, in that damages are not generally claimed before they have actually been incurred. Regardless of motivation, the city’s recourse to the courts effectively curtailed opposition to the development of the business park, which then proceeded relatively unimpeded (O’Flanagan 2012). There are a number of other instances of municipalities or municipal politicians suing protesters and political opponents. In some, the actions resemble individual-versus-individual cases. However, the public nature of the role of municipal officials makes these cases a more serious threat to democratic values. The issue is well demonstrated by the Korpan case, which can usefully be contrasted with Langille v. McGrath discussed above. In 2008, Gary Korpan, the long-serving mayor of Nanaimo, British Columbia, alleged defamation in a lawsuit against two citizens (Walton 2008; Barron 2012; Williams 2011). Korpan had been mayor of the city for twelve years and was embroiled in allegations of corruption. A year previously, he had threatened to sue anyone who was involved in the production and distribution of a bumper sticker that had begun appearing in Nanaimo (Williams 2011; Walton 2008). Korpan maintained that the sticker, which stated “Free Nanaimo from Koruption,” was clearly defamatory as there was no evidence that he had violated any corruption laws.

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He sued two individuals, one who allegedly was responsible for producing the bumper stickers and the other a local business person who had the bumper sticker displayed in her place of business. Allegations of criminality without merit are generally considered defamatory. Indeed, this was the basis of the finding of liability in Langille v. McGrath. However, in a political context, allegations of corruption and wrongdoing are part and parcel of political discourse. This is especially true if they relate to the individual’s responsibilities as a civic official. If members of the public are not permitted to make comments regarding allegations of political corruption, then the capacity to hold officials accountable is constrained. The freedom to discuss these issues without fear of legal action is critical to our system of accountability. In the Korpan case, the bumper stickers could be understood as a clever political vehicle to raise questions about the mayor’s conduct and to challenge his administration. Certainly, the stickers were very much part of a broader political plan to challenge the mayor in the upcoming municipal election. Arguably, the lawsuit was a device to try to stifle, or at least to minimize, the impact of that campaign. In the end, the lawsuit was settled out of court but it took nearly three years from when the suit was initially launched (Barron 2012). In both Langille v. McGrath and the Korpan case, there were allegations of criminality that could be considered defamatory. Certainly in the latter, the allegations were far less direct than in Langille v. McGrath. Neverthe- less, one needs to understand why the allegations in the Langille case were defamatory whereas in the Korpan case they likely were not. The key factor here is the democratic implications of the statements. The Korpan case involved statements made within the context of municipal politics and an upcoming municipal election campaign. The allegations also clearly related to issues at stake in that campaign. In other words, the values of political expression were in play. In Langille v. McGrath, on the other hand, the democratic implications of the case were relatively minor. The case involved private individuals, and while the question of the operation of the gravel pit might have been sufficiently important to warrant protection of political expression, the allegations that the owners of the pit had threatened murder fell outside the issue under consideration. Precluding the sort of expression made by McGrath would have limited impact on democratic processes and the values of political expression/participation. The Korpan case is not unique. There have been several similar cases. In another case, Edmonton Mayor Stephen Mandel threatened a series of lawsuits against various critics. In one of these, a blogger by the name

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of Nathan Black was sued over a series of postings during the municipal election. His blogs alleged that the mayor had a financial interest in the closing of a downtown airport and that he had been in a conflict of interest when he voted on the issue in council (Williams 2011). In another case, Mandel threatened to sue a city realtor who had produced and distributed leaflets criticizing him during the election campaign. The leaflets contained headlines taken from local newspaper reports and questioned whether the mayor could be trusted (Williams 2011). In the end, Mandel did not pursue the litigation against the realtor. The Mandel and Korpan cases are particularly troubling in that they take place within the context of municipal election campaigns. Elections are fraught with political conflict and with allegations and assertions about the character of candidates. Discussion and debate on issues within the campaign can often take on a decidedly negative tone. To a certain extent this is the essence of political conflict, and generally one assumes that public figures should be prepared to take their lumps, particularly during election campaigns. Allegations of defamation within this context have the potential for undermining democratic debate and the functioning of electoral processes as mechanisms of political accountability. The above is an admittedly selective discussion of a variety of slapp- type lawsuits. While far from comprehensive, it demonstrates the range of behaviour that can lead to slapps, the disparity in resources between plaintiffs and defendants, and how plaintiffs are often able to achieve their objectives without necessarily pursuing the case through to trial and a final judgment. The cases also very clearly demonstrate how the litigation process can be time-consuming, expensive, and can operate to silence those who have been sued as well as others who might be considering political action. One might ask what role the courts play in this scenario. To what extent are they complicit in permitting slapp lawsuits to proceed despite what appears to be an abuse of judicial processes? In some of the cases discussed above, the courts identified the case as potentially abusive, but nevertheless allowed it to proceed. As discussed in Chapter 2, courts are highly reluctant to deny individuals access to a judicial determination. As a result, rules regarding the summary dismissal of cases tend to be strin- gently applied, with courts preferring to determine the legitimacy of any case only after a full trial and a hearing of all evidence. Nevertheless, there are a number of significant judicial decisions in Canada where the courts have identified slapps and pointed to their neg-

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ative impact on political expression and public debate. It is to a discussion of these cases that we now turn.

The Judicial Consideration of slapps in Canada

Fraser v. Saanich (1997)

Like many of the slapp cases discussed above, the Fraser v. Saanich case originated in British Columbia and it is significant in that it represents one of the first instances of a Canadian court recognizing and acknowledged the slapp phenomenon. The case centred on events that arose out of the closure of a hospital in Saanich, British Columbia (Fraser v. Saanich 1997; Lott 2004, 14; Scott and Tollefson 2010, 48). In 1997, funding for a long- term care facility in the District of Saanich was cut, and patients moved to other facilities. The owner and director of the corporation was a woman by the name of Ellen Fraser. After the long-term care facility was closed, Fraser announced she intended to sell the property for redevelopment. Members of the local community raised concerns, given that the facility was located in a residential neighbourhood. They organized and lobbied the municipal government either to rezone the property or to designate the facility a heritage building. Both possibilities had the effect of reduc- ing the ability of a prospective purchaser to redevelop the property, and thereby decreased the commercial potential of the building. In the end, the local residents’ campaign was successful, and the District of Saanich rezoned the property, although it declined to declare the former hospital a heritage site. In response to the residents’ campaign, Fraser launched a series of lawsuits. In particular, she sued the district and a number of community members, claiming damages for interference with contractual relation- ships, conspiracy, collusion, and bad faith (Lott 2004, 14). More specifically, she alleged that the residents’ communication with the municipal government had interfered with her ability to sell the property. In one sense, this was undoubtedly true. However, it is also clear that municipal governments have the right to determine zoning and land-use issues, and residents should be entitled to communicate with their elected representatives. The case went before the Supreme Court of British Columbia for trial and the defendants moved to have the statement of claim struck out for failing to disclose a cause of action. The trial judge, Justice Singh, agreed. He stated that it was “plain and obvious” that there was no legitimate

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cause of action. More significantly, he found that the case was brought in an obvious attempt to stifle the democratic activities of the defendants. In this regard, he said:

While neighbourhood participation in municipal politics often places an almost adversarial atmosphere into land use questions, this participation is a key element to the democratic involvement of said citizens in community decision-making. Signing petitions, making submissions to municipal councils, and even the organization of community action groups are sometimes the only avenues for community residents to express their views on land use issues.… This type of activity often produces unfavourable results for some parties involved. However, an unfavourable action by local government does not, in the absence of some other wrongdoing, open the doors to seek redress on those who spoke out in favour of that action. To do so would place a chilling effect on the public’s participation in local government. (Fraser v. Saanich (District) [1999], para. 43)

The court then went on to formally acknowledge the existence of slapps as a particular type of lawsuit and said that such cases are without merit and without any legitimate foundation. The judge found that Fraser’s claim fell within the definition of a slapp and held that her conduct should be condemned as an attempt to stifle democracy. He stated:

A slapp suit is a claim for monetary damages against individuals who have dealt with a government body on an issue of public interest or concern. It is a meritless action filed by a plaintiff whose primary goal is not to win the case but rather to silence or intimidate citizens who have participated in proceedings regarding public policy or public decision making.… I find, therefore, finally, that this action not only contains an unreasonable claim, is meritless and devoid of any factual foundation, but also has been used as an attempt to stifle the democratic activities of the defendants, the neighbourhood residents. I find the plaintiff’s conduct reprehensible and deserving of censure by an award of special costs. (Fraser v. Saanich (District) [1999], para. 49, 52)

This judgment, therefore, was notable for providing a strong judicial en- dorsement in favour of the rights of democratic participation, as well as for judicial recognition and condemnation of slapp litigation. Rather than simply declaring that the case failed to disclose a cause of action, the court was willing to pierce the veil of the statement of claim and to identify the

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effect of the litigation on public expression as well as the motives that underpinned the litigation.

Daishowa Inc. v. Friends of the Lubicon (1998) The Friends of the Lubicon case is perhaps one of the most famous slapp cases in Canada. It involved a lengthy and protracted conflict between Daishowa, a pulp and paper company, and the Friends of the Lubicon, a public interest group supporting the Lubicon Cree of Alberta in their long- standing land claim dispute with the governments of Alberta and Canada. The Friends of the Lubicon organized a highly effective consumer boycott of Daishowa products. The goal of the boycott was to pressure the company to stop logging on land that was part of the Lubicon Cree’s land claim. The boycott began in 1991 and targeted companies that purchased paper products from Daishowa. It involved both letters to companies that did business with Daishowa, as well as information pickets in front of these businesses if they refused to stop purchasing Daishowa products. The campaign lasted over three years and resulted in the agreement of fifty companies, including the Liquor Control Board of Ontario, fast food outlets, retail chains, and major grocery stores, to stop doing business with Daishowa. The boycott extended to over 4,300 retail outlets (Tollefson 1996). In 1995, Daishowa sued the Friends of the Lubicon and unsuccessfully sought an interim injunction against the group. The full lawsuit asked for a permanent injunction on the group’s activities as well as monetary damages alleging defamation and a variety of economic torts, including intimidation, inducing breach of contract, interference with economic interests, and conspiracy (Daishowa Inc. v. Friends of the Lubicon 1998; Lott 2004; Tollefson 1996). As in many slapp situations, the inequality of resources between the plaintiff and the defendant was readily apparent. To defend against the interlocutory injunction, the Friends of the Lubicon were able to secure the services of a major Toronto law firm on a pro bono basis. However the firm eventually withdrew from the case due to the time commitment involved in acting for the defendant. At that point, the Friends of the Lubicon secured the services of the Sierra Legal Defence Fund, a public interest law firm providing free legal representation to citizen groups and individuals in environmental cases. As Tollefson (1996) has pointed out, it is relatively rare for slapp defendants to find experienced litigators who are prepared to provide their services on a pro bono basis, and as a result many defendants go to court unrepresented. The Friends of the Lubicon case had a complicated and somewhat convoluted history before the courts. The complexities of the case dem-

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onstrated how slapp litigation can tie up defendants in legal proceedings and leave them with little time for activism. To begin with, the boycott campaign had been ongoing for nearly three years before Daishowa began legal action. The defendants felt they were on relatively safe ground; they had been engaged in the boycott for over three years with no indication that Daishowa considered their activities illegal. When the case was first launched, therefore, they were taken off guard (Tollefson 1996). Daishowa began by seeking an interim injunction requiring the defendants to stop their activities. Interim injunctions are usually sought immediately after the statement of claim is served. This sort of application is typically brought on an ex parte basis, which means that the defendants do not have to be given notice of the application, nor do they necessarily appear before the motions judge. Such injunctions are very temporary, operating only until a full-motions hearing can be scheduled. If granted at that hearing, an interlocutory injunction will operate until the completion of the full trial, at which point the injunction could be made permanent. In the Friends of the Lubicon case, the initial application for an interim injunction was successful; however, the court subsequently refused to permit the injunction to be continued on the application for an interlocutory judgment. In her decision, Justice Kitely emphasized the important free speech aspects of the Friends of the Lubicon’s activities and the legality of boycott activities and secondary picketing of businesses.2 Justice Kitely did enjoin the defendants to refrain from a small number of activities. In particular, she held that they could not use the phrase “genocide” in describing the companies logging activities in the disputed Lubicon ter- ritory. Daishowa appealed the injunction decision to the Divisional Court of Ontario and was successful. As a result, an interlocutory injunction was granted. The case finally came to full trial before Justice MacPherson of the Ontario Supreme Court in April 2008, nearly three years after the statement of claim had been issued. In the end, Justice MacPherson dismissed virtually all of the company’s claims. He did find that the defendants had defamed Daishowa on two grounds: first, in their statements that the company had breached an agreement with the Lubicon Cree; and second, by their references to the logging as a genocide. With respect to both, he found that the facts of the case did not support the statements. However, the judge refused to grant the company a permanent injunction, and awarded them nominal damages of one dollar. With respect to all of the other causes of action alleged by the company, Justice Macpherson found that the allegations had not been substantiated.

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It must be kept mind, however, that the trial itself lasted twenty-eight days, something that the company could well afford, but that the defendants could not. In addition to the organization itself, three members of the organization were named as defendants. They included a university student, an independent film producer and coordinator of an Aboriginal rights coalition, and an individual identified at trial as a student studying massage therapy. This last individual did not participate in the trial at all (Daishowa Inc. v. Friends of the Lubicon 1998, para. 5, 6). The membership of the organization had always been small, and its budget extremely limited. Tollef- son, in his analysis of the case, indicates that the group never had more than a dozen volunteer members at any one time, and an annual budget of approximately $2,000 (1996, 6). While in most respects the Friends of the Lubicon won their case, they certainly did not come out ahead. Im- portantly, moreover, Justice MacPherson refused to grant an order of costs against Daishowa. As a result the company did not have to reimburse the Friends of the Lubicon for any of their legal costs. In the end, the case had cost the Friends of the Lubicon nearly $400,000. The bulk of the costs was borne by the Sierra Legal trust (Scott and Tollefson 2010, 48). While court’s main decision, then, was that factually the specific torts alleged by the company had not been established, the case is significant for Justice Macpherson’s comments on the nature of freedom of expression and the legitimacy of the activities pursued by the Friends of the Lubicon, as well as the potential constitutional implications of the activities in the case. In particular, in commenting on the legality of the Friends’ efforts to convince purchasers of Daishowa products to join the boycott, Justice Macpherson rooted his analysis in freedom of expression. The Supreme Court had already found that the guarantees of freedom of expression contained in the Canadian Charter of Rights and Freedoms extended to commercial speech (Irwin Toy v. Quebec (Attorney General) 1989). This meant that companies could claim that their ability to adver- tise their products and communicate with potential customers was a protected form of speech, and that government regulation of advertisements would have to comply with the reasonable limits provisions of the Charter. But for Justice Macpherson, a corollary of the protection of commercial speech was the protection of attempts to influence customers of a business to make a different choice, especially where these are grounded in a public interest argument.3 This raises an important issue regarding freedom of expression and slapps. As discussed previously, American jurisprudence on slapps has

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relied extensively on a broad interpretation of the right to petition government that is contained in the us constitution. There is no such clear equivalent in the Canadian Charter of Rights and Freedoms. Indeed, the Canadian constitution is framed predominantly as a negative rights document that limits government or state activity. In other words, the freedom of expression guarantees contained in Section 2 of the Charter operate to preclude government activity that limits expression, but do not apply to private activities that might have the same result. In the absence of a statutory enactment, or some of other state action, the Charter is generally not considered to apply. This raises difficulties when dealing with slapps. Arguably, the plaintiffs in slapp cases are attempting to invoke the common law of torts— defamation, trespass, interference with contract, etc.—in an attempt to stifle or limit political expression. The common law has evolved as a source of law within our political and legal system that stands outside and apart from statutory law. It has evolved and been developed by judges hearing cases over time, and it is enforced through the decisions of those judges. The question, then, is whether the Charter of Rights applies to the decisions of courts and judges when they are enforcing or applying common law, rather than statutory standards. In general, the courts have not been willing to extend the Charter to the common law. The problem is to be found in the apparent contradiction between two different sections of our constitution. On the one hand, Section 52 of the Constitution Act proclaims that the constitution is the supreme law of the country, and that all other laws that are inconsistent with it are of “no force and effect” to the extent of that inconsistency. One might expect this to mean that common law rules as developed by the courts must comply with the constitution, including Charter rights. However, Section 32 of the Charter defines the scope of its applicability. That section states that the Charter applies to “the Parliament and government of Canada,” and to “the legislature and government of each province.” Courts, and their decisions, are not specifically mentioned as being subject to the provisions of the Charter. It can be argued that the Charter should be applicable to decisions of the courts and their interpretation and articulation of the common law on the basis that the courts are themselves part of government. The leading case on this subject is a decision of the Supreme Court of Canada in Retail, Wholesale and Department Store Union v. Dolphin Delivery (1986). It dealt with secondary picketing in a labour relations context, and in it

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the Supreme Court ruled that the judicial branch could not be considered part of the government for the purposes of determining the application of the Charter of Rights and Freedoms. The court acknowledged that although courts, from a political science perspective, might be part of government, in a jurisprudential sense they are not. As a result, decisions of the common law are not automatically subject to the rights contained in the Charter. However, in Dolphin Delivery the court ruled that there might be instances where the Charter would apply to common law decisions. In particular, if the government is one of the parties to the litigation then the Charter would be applicable. Effectively, if the state, which includes the federal, provincial, and municipal governments, and regulatory agencies, seeks to invoke the judiciary in a slapp-type case, then the Charter might be applicable because there is the requisite degree of state action. However, where the litigants are purely private in nature, then the Charter does not come into play. Clearly such a situation has the potential for generating wildly diver- gent and inconsistent outcomes. As a result, the discussion of the applicability of the Charter of Rights and Freedoms in the Friends of the Lubicon case has to be treated very cautiously. Much of that discussion could be considered what in legal terms is called obiter dicta. What this means is that it is a discussion that was not strictly necessary to decide the case, and, as a result, it is not binding on future courts hearing similar decisions. It is not part of the “precedent” that the case might represent. Nevertheless, it does demonstrate a way forward. While the Charter may not strictly be applicable in cases like the Friends of the Lubicon, there is nothing precluding judges from relying on the principles embedded in the constitution as a way of interpreting and applying the common law. Indeed, judges should generally avoid common law decisions that could have the effect of undermining or contradicting constitutional principles, since the constitution is the supreme law of the country. This approach seems to have gathered some support in decisions of the Supreme Court of Canada that have followed Dolphin Delivery. Even in Dolphin Delivery, while the court insisted that the Charter would not apply to common law disputes between private parties, it did acknowledge that Charter values could shape the development of the common law and its interpretation by the courts. The Supreme Court endorsed and reiterated this position in rwdsu Local 558 v. Pepsi Cola (2002) when it stated:

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The second preliminary issue is how the Charter may affect the development of the common law. Here again the answer seems clear. The Charter constitu- tionally enshrines essential values and principles widely recognized in Canada, and more generally, within Western democracies. Charter rights, based on a long process of historical and political development, constitute a fundamental element of the Canadian legal order upon the patriation of the Constitution. The Charter must thus be viewed as one of the guiding instruments in the development of Canadian law. (para. 18)

The court went on to say that common law cases also take into account a variety of other interests and factors that go beyond Charter values. Most notably, these include economic interests. Nevertheless, the court did indicate that where the common law implicates Charter principles, those principles should be taken into account (rwdsu Local 558 v. Pepsi Cola 2002, para. 21). In many respects, this is how Justice Macpherson approached the Friends of the Lubicon case. The decision, therefore, remains an important judicial recognition that the values of freedom of expression and the ability of citizens to comment on public issues should inform how the courts address the various torts that are often invoked in slapp cases. It represents another instance where the courts have been willing to go beyond the dispute-transforming nature of the litigation to examine the effect of the litigation on expressive values.

Conclusion

In general, while there have been several important cases that have acknowledged freedom of expression and the dangers of slapp litigation, courts have been very inconsistent in applying these standards. The general inclination of many courts is to err on the side of allowing cases to go forward, rather than curtailing plaintiffs’ right to litigate. In part, this is to be expected. Judges are trained to make decisions based on the fullest presentation of evidence possible. Moreover, that evidence needs to be tested through the full trial process of examination and cross-examination. This simply cannot take place on a preliminary basis. But it is also important to recognize that many of the significant cases on this subject, such as Friends of the Lubicon, took years to complete and represented a huge expense to the defendants. In the Friends of the Lubicon case,

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for example, while Daishowa lost the overall case, it successfully gained an interlocutory injunction that operated for several years until the final decision could be reached. While courts may have the tools to deal with slapps, the review of cases in this chapter demonstrates that slapps continue to be filed in a broad range of types of cases. Moreover, the impact of cases like Fraser v. Saanich and Daishowa v. Friends of the Lubicon appears to be limited. Certainly, while courts may look to these cases for guidance, they have not had the effect of creating disincentives to the filing of slapps. As a result, legislative intervention in order to provide courts with greater direction in slapp situations, and better tools beyond those currently available, may be required.

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In Chapter 3, we examined the development of slapps in the Canadian context, as well as several specific case studies of slapps. We also looked at judicial pronouncements in relation to slapps, which clearly identified the dangers posed by these lawsuits to the democratic values of expression and political engagement. Recently, however, there has been a disturbing trend of slapp-type lawsuits emerging within more mainstream areas of political life. In particular, slapp lawsuits are becoming a feature of parliamentary and legislative politics. These lawsuits are particularly problematic in that they both block political participation and have the potential to undermine the functioning of democratic institutions and processes of political accountability. It is, perhaps, a truism that parliamentary democracies function on the basis of freedom of speech. The open exchange of debate and the capacity to subject political parties, politicians, and public officials to critical scrutiny are the bedrocks of a functioning parliamentary system. Of course, no right is absolute and, even within the context of Parliament, freedom of speech has limitations. Establishing the boundary between free speech and responsible speech has always been difficult. As a general rule, however, the Westminster system of parliamentary accountability has favoured open debate and free speech, even where such expression might otherwise be considered defamatory. The rules of parliamentary privilege, for example, provide members of Parliament with a qualified immunity from being sued for libel. In this way, parliamentarians are free

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to pursue vigorous debate, without fear that their comments will lead to a civil lawsuit. It also prevents individuals from derailing parliamentary debates of public issues by the threat of such lawsuits. In effect, the rules of parliamentary privilege are designed to preclude, although within a fairly narrow context, slapp-type lawsuits. Increasingly, however, those rules seem inadequate to capture the range of political expression and the realities of modern parliamentary practice. As a result, there is potential for a dangerous “judicialization” of parliamentary practice through the growing use of litigation as a tool of partisan political engagement. Most cases that fall into this category involve defamation claims. There are three scenarios where these types of lawsuits potentially affect the legislative process. The first is where a Member of Parliament (mp) is sued by a private citizen or corporation for something said in the course of their duties as an elected official. In this context, statements made by an individual in their role as an mp need to be distinguished from statements made by them as a private citizen. We are primarily concerned with statements made by an mp on public issues that might precipitate a slapp lawsuit. The second scenario is where an mp sues a citizen or private group for criticisms levelled at them. These sorts of cases are relatively rare and follow a fairly typical slapp format. For example, if an individual citizen makes allegations of wrongdoing against an mp, one could imagine the statement prompting an allegation of defamation. Indeed, in Chapter 3 we saw a number of cases of this sort involving municipal politicians. The final situation involves cases where both the filer and the target of the slapp lawsuit are members of Parliament or politicians. These types of cases are particularly problematic in that both sides of the dispute have set aside formal mechanisms of parliamentary and political accountability in favour of litigation. Before proceeding to examine these scenarios in more detail, it should be acknowledged that members of Parliament fulfill a number of roles within the political system. mps are individual constituency representatives, members of political parties, and they have roles within Parlia- ment itself. A consideration of the impact of slapps on Parliament needs to take into account these various roles and contexts.

Parliamentary Privilege as an Anti-slapp Mechanism

Parliamentary privilege refers to a group of rights enjoyed collectively by Parliament and individually by the Members of the House of Commons and Senate. A key element of parliamentary privilege is that the rights

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contained therein are considered essential for members of Parliament, and for Parliament itself, to function properly and responsibly. It is also the case that these privileges go beyond the rights possessed by other individuals and other organizations. Although parliamentary privilege is often conceptualized in terms of the rights of mps, they are, to a great extent exceptions to or exemptions from the general law of the land (Marleau and Montpetit 2000, sec. 3).1 Certainly this is the case with the privilege of freedom of speech. For members of Parliament, the positive right of freedom of expression takes the form of an exemption from the normal rules of libel and slander. mps enjoy immunity from civil lawsuits for statements made as part of the proceedings of Parliament. In this way, they are free to speak in the House of Commons and to express opinions on any matter, without fear that an individual offended by those comments might sue them. In effect, within the confines of Parliament, members are permitted to make statements that otherwise might be considered defamatory. The development of this body of law has much to do with judicial interpretation of defamation laws (Loveland 2000, ch. 2). Parliamentary privilege operates as an effective, but limited, anti-slapp mechanism. It precludes lawsuits brought by members of the general public, as well as by other members of Parliament. This protection, however, is extremely limited. Statements made outside of Parliament receive no protection, even if they are word-for-word restatements of things said in Parliament. In the House of Commons manual of “Procedure and Prac- tice” this caution can be found:

Utterances which are absolutely privileged when made within a parliamentary proceeding may not be when repeated in another context, such as in a press release, a householder mailing, a telegram, on an Internet site, a television or radio interview, at a public meeting or in the constituency office. Members also act at their peril when they transmit otherwise libellous material for purposes unconnected with a parliamentary proceeding. Thus, comments made by a Member at a function as an elected representative—but outside the forum of Parliament—would not be covered by this special privilege, even if the Mem- ber were quoting from his or her own speech in the Debates of the House of Commons. (Marleau and Montpetit 2000, sec. 3)

Privilege, then, attaches only to those statements that are part of the proceedings of Parliament, and a clear distinction is made between the

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individual’s role as a parliamentarian, and other aspects of his or her public and political functions, including as a member of a political party and the broader range of responsibilities as an elected representative. A further limit to parliamentary privilege is that it does not apply to municipal politics. Local city councils are important democratic venues, and city counsellors often face many of the same issues, albeit on a different scale, as parliamentarians. Given that many slapp cases arise out of local issues, this is a particularly important limitation of the doctrine of parliamentary privilege. Moreover, local councils do not have the ability to establish, through a bylaw, any limit on the right to access courts. There- fore, any extension of a free-speech privilege to local city councils would necessarily require provincial legislation. Of course, these fine distinctions as to what is and is not covered by parliamentary privilege tend to ignore the reality of modern parliamentary politics. Political parties, and the organizational structure of those parties, are the vehicles through which members of Parliament conduct their political affairs. The doctrine of parliamentary privilege is the culmination of over four hundred years of parliamentary practice. Historically it emerged out of practices that were accepted by both the executive and the courts as forming the law and custom of Parliament (Loveland 2000). As such it emerged and developed in a context in which political parties were not significant actors in the political structure and in which the main forum in which political discussion took place was Parliament. In the modern era, in which parties dominate the parliamentary land- scape and communication technologies permit individual mps and parties greater opportunity to speak directly to the public, the doctrine leaves much to be desired. Statements in the House of Commons can hardly be said to be the primary vehicle by which communication around political issues takes place. Television, social media, and the Internet have transcended Parliament as vehicles for critique and commentary (Small 2008, 2009). Political success increasingly depends on the utilization of a variety of extra-parliamentary tools of communication. In many respects, this reflects the fact that political accountability for individual members of Parliament, political parties, and governments is now shaped by direct communications between politicians and members of the public, rather than discussions mediated by the framework of Parliament. While parliamentary privilege may operate reasonably well as a mechanism for ensuring the proper functioning of Parliament as an institution, it may not function effectively as an anti-slapp mechanism to permit members of Parliament to fulfill their broader role as elected representatives.

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In order to illustrate this, we will examine slapp cases that fit the three scenarios discussed at the beginning of the chapter: an mp sued as a result of statements made by him or her outside of the legislature, an mp suing an individual as a result of statements being about him or her, and an mp suing another mp or political party.

Members of the Public Suing Politicians

Members of the public are generally prevented from suing politicians for defamatory statements by virtue of parliamentary privilege. Nevertheless, the limited nature of that privilege does mean that there are many aspects of a parliamentarian’s role that area not protected by it. As a result, lawsuits of this sort can take place, and they are illustrative of the limits of current doctrines of parliamentary and legislative privilege. One of the most recent incidents of a Member of Parliament being sued for statements made outside of the House of Commons involves Pat Martin of the New Democratic Party. Martin was sued over the so- called robo-call scandal. In the first few months of 2012, reports of potential voter suppression tactics during the previous year’s federal election emerged as a major news story. A number of people throughout the country reported having received automatic pre-recorded phone messages (robo-calls) that purported to come from Elections Canada. These calls indicated that their polling station had been moved and directed them to cast their vote at a location different than the one on their polling card (Cheadle 2012). When the individuals went to the new location, however, there was no polling station at that address. In other instances, individuals received phone calls at late hours of the night, or on days of religious observance, that purported to come from Liberal candidates, but did not. There was widespread speculation that the Conservative Party or persons associated with the party were involved in the scandal (Payton 2012a; To- robin 2012). This speculation was only heightened after a political staffer on Parliament Hill, who had previously worked for a Conservative candidate in Guelph, where a large number of robo-calls had been reported, suddenly resigned his position (Payton 2012b). In response to these allegations, Elections Canada commenced an investigation. This led to RackNine, an Edmonton-based call-centre company that was identified as the source of some of the robo-calls. In particular, Elections Canada indicated that the company had been hired by unknown persons to place calls to voters in the riding of Guelph. In addition to doing work for the Conservative candidate in Guelph, RackNine

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was employed by a number of Conservative candidates to conduct voter outreach calls during the election. Elections Canada made it very clear that RackNine itself was not under investigation for electoral wrongdoing and that the company was cooperating fully with the investigation (Bou- zane 2012; Fitzpatrick 2012; Leblanc 2012). Despite this, however, Pat Martin, who was taking the lead for the ndp in the robo-call scandal, made a series of statements both in the House of Commons and outside of it regarding the scandal and RackNine’s possible involvement in it. At a press conference and on cbc television, Martin compared RackNine to Groupaction Marketing Inc., a company whose president had been convicted of fraud in connection with a sponsorship scandal that had plagued the previous Liberal administration. Martin stated, “I predict that RackNine will become the Conservative Party’s Groupaction, and I predict that we will find that the sheer magnitude and audacity of the ‘RackNine rascals’ will be enough to make Richard Nixon blush” (Leblanc 2012). Martin also pointed to the company’s ties to various right-wing political parties and suggested its involvement in il- licit activities (Leblanc 2012). The statements were also reproduced on the ndp’s website. In response to Martin’s statements, RackNine and its president, Matt Meir, through a letter from their lawyers dated 23 February 2012 threatened Martin and the ndp with a lawsuit if an apology and retraction was not forthcoming (Bouzane 2012; Fitzpatrick 2012). Before Martin responded, however, a statement of claim was issued on 2 March 2012, claiming $5 million in damages from Martin and the ndp. The suit included a claim of general damages of $500,000, aggravated damages of $2 million, special damages for lost business income of $2.5 million, and punitive damages to be set by the court. Martin responded to the lawsuit by saying he was disappointed that RackNine had “pulled the trigger before they [had] even seen the response to the original complaint” (Bouzanne 2012). He stated that he had a meeting with his lawyer to discuss the initial threat of a lawsuit the day the statement of claim was issued. He also added that he considered the lawsuit a “classic libel-chill [slapp-]suit tactic” designed to silence someone “with your chequebook” (Fitzpatrick 2012). In April 2012, Martin issued a full apology to RackNine and its president. However, the company decided to continue with the lawsuit, stating that the delay in Martin’s apology had been unreasonable and that the ndp had displayed continued malice towards them (Milewski 2012).

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The RackNine lawsuit follows many of the characteristics of a slapp lawsuit, particularly in terms of the very large damage claim. Of course, since Martin’s statements were made outside of the House of Commons and published on his party’s website, they were not protected by parliamentary privilege. It is difficult to assess the degree to which the lawsuit affected the debate over the robo-call scandal, but it likely made com- mentators more circumspect in how they discussed the issue. While it is certainly true that Martin’s comments were inflammatory, and quite likely defamatory, it is debatable whether they warranted a lawsuit, and it is very doubtful that they caused $5 million in damages. Had Martin’s statements only been uttered within the House of Commons, they would have been completely protected and RackNine would not have been able to sue. It is difficult to reconcile the notion that identical words spoken by a parliamentarian in different locations, with each statement clearly related to his functioning as an mp, can produce such different outcomes. In some cases, however, the impact of a lawsuit on parliamentary process can be profound. This is illustrated by the lawsuit brought by former Prime Minister Brian Mulroney against Liberal mp Robert Thibault in October 2007. Mulroney had left public life a long time before this litigation. Although the issues raised by it reached back to Mulroney’s tenure as Prime Minister, he was suing as a private citizen. Thibault was the Lib- eral party’s main spokesperson regarding allegations of wrongdoing that surrounded Mulroney’s dealings with Karlheinz Schreiber. A German-Ca- nadian businessman, Schreiber had been at the heart of what was termed the “Airbus scandal.”2 The full details of the Airbus scandal are beyond the scope of this study. However, in 1995 Brian Mulroney was accused by the rcmp of having accepted kickbacks from Schreiber on the sale of Air- bus planes to Air Canada. The allegations were contained in a letter from the rcmp to the Government of Switzerland seeking access to banking re- cords. Mulroney immediately denied the allegations and launched a $50 million defamation suit against the Canadian government. He alleged the Liberal Government of Jean Chrétien was engaging in a smear campaign against him. In the end, no evidence of kickbacks was presented. In 1997, the government settled the lawsuit with Mulroney, issued a public apology, and agreed to pay Mulroney’s $2.1 million in legal fees (Oliphant 2010, 3). The Airbus affair, however, did not go away. New evidence subsequently came to light that Mulroney had received $300,000 from Sch- reiber in three instalments. Mulroney admitted to receiving $225,000

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over eighteen months from Schreiber during this time period (Dawson 2008, 2; Oliphant 2010, 3). The first of these instalments apparently was received after Mulroney had ceased to be Prime Minister, but while he was still a Member of Parliament. Moreover, the money was only reported as income to Revenue Canada a considerable time later (Aubry 2007; cbc News 2010a; Oliphant 2010). According to Mulroney, the money was received for consulting services he rendered to Schreiber to help promote a fresh-pasta business and to develop international contracts. During his lawsuit with the Canadian government, however, Mulroney had not admitted receiving any monies from Schreiber, and had specifically denied, under oath, having any business dealings with him. In light of new evidence that Mulroney may in fact have had personal business connections with Schreiber and received cash payments from him in somewhat unusual circumstances, renewed attention was placed on the original decision to settle the Mulroney defamation lawsuit and to pay his legal fees. Thibault and the Liberals were demanding a public inquiry into the Airbus affair and into the legal settlement that had previously been reached with Mulroney. In the House of Commons, Thibault stated that the out-of-court settlement should be re-examined in light of the payments Mulroney had received from Schreiber. He said, in the Commons, “A few years ago, the former Prime Minister Brian Mulroney, now an adviser to the current prime minister, sued Canada over the Airbus affair and received a $2-million award.… Under oath, he testified that he never had any dealing with Schreiber. We now learn that not only did he know him, but Schreiber paid him $300,000 in cash. The first $100,000 when he was still a Member of Parliament” (Aubry 2007). Thibault then repeated these allegations in an interview conducted by Mike Duffy, then of ctv News. As a result of the repetition of these allegations, Mulroney launched a defamation lawsuit against Thibault, claiming $2 million in damages on the grounds that Thibault’s comments were intended to injure his reputation and were made maliciously for political gain (Aubry 2007; National Post 2007). In and of itself, the lawsuit against Thibault represented a potentially significant example of a slapp. However, the House of Commons Stand- ing Committee on Access to Information, Privacy, and Ethics conducted an inquiry of its own into the allegations against Mulroney. Thibault was a member of that committee and participated in questioning Mulroney when he appeared to give evidence. As a result of this, a complaint was made to the federal ethics commissioner, Mary Dawson (Dawson 2008).

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Dawson ruled that the lawsuit against Thibault had placed him in a conflict of interest vis-à-vis Mulroney, and that he should have recused himself from the committee hearings. Thibault, she ruled, should not have been permitted to participate in the committee’s examination of the Mul- roney-Schreiber dealings. The ethics commissioner’s ruling did not affect Thibault directly, as she issued her decision after the Standing Committee had concluded its examination of the matter. Nevertheless, it remains a very significant precedent for the future. It means that lawsuits brought against members of Parliament may prevent them from carrying out their parliamentary duties. In Robert Thibault’s case, if this ruling had been in place, the Lib- eral party’s lead critic on the Mulroney–Schreiber affair would have been sidelined from participating in the Standing Committee’s examination. Moreover, this result would have been precipitated by the restatement, in a news broadcast, of nothing more than what had previously been said on the floor of the House of Commons. This example clearly demonstrates the limits of notions of parliamentary privilege. It also demonstrates that lawsuits prompted by statements made outside the House can affect proceedings within the House. The rationale for parliamentary privilege is to ensure that the procedures, hearings, and debates of Parliament can be conducted without litigation inter- fering with or derailing them. The Thibault case highlights the very real possibility that this might happen as a result of slapp litigation against members of Parliament. As a result, there have been some unsuccessful attempts to amend the House of Commons Code of Conduct to exclude defamation lawsuits from constituting a conflict of interest for a sitting mp.

Politicians Suing Other Politicians: Harper v. The Liberal Party of Canada

The Cadman Litigation The so-called Cadman affair, in which the Liberal Party of Canada was sued by Prime Minister Stephen Harper, is perhaps one of the most prominent slapp-type cases to emerge within the parliamentary context in Canada. It serves an example of a Member of Parliament, in this case the Prime Minister, suing other members of Parliament. Although the initial threat of a lawsuit was directed against Liberal mps Stéphane Dion, Michael Ignatieff, and Ralph Goodale, the Cadman affair evolved and

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thus also serves as an example of a lawsuit directed towards individuals or groups outside of Parliament, since the final lawsuit only named the Liberal Party of Canada and no sitting mps. This reflects a further limit of parliamentary privilege, in that it takes no account of the role of mps as party members. The events surrounding the Cadman affair are relatively well known. In May 2005, the minority Liberal Government of Paul Martin was poised for a possible defeat on its budget. It was widely expected that the vote would be very close. In the end, the outcome was determined by a single vote, that of Chuck Cadman, a former Tory mp who had left the party and was sitting as an independent. Cadman opted to vote with the government, producing a tie vote, which was then broken by the Speaker of the House Peter Milliken. Following parliamentary tradition, Milliken voted with the government, thereby allowing the budget to pass and Martin’s government to continue in power. It was, at the time, the stuff of high political drama, even more so given the fact that Cadman was terminally ill and came to the House of Commons for the vote from his sickbed. Cadman’s death, less than two months later, would seem to have put the matter to rest, an interesting footnote in Canadian political history. However, in the spring of 2008, it was alleged in author Tom Zyta- ruk’s biography of Chuck Cadman that Conservative party officials may have tried to convince him to vote against the government in return for a $1 million life insurance policy (Zytaruk 2008). These revelations were based on statements from Cadman’s widow. Moreover, allegations were contained in the book that Stephen Harper knew of, and had approved, the plan to solicit Cadman to vote against the Liberals. The allegations appeared to be backed up by a tape recording made by Zytaruk of an interview he conducted with the Prime Minister. Needless to say, in the ensuing days, contradictory accounts of the story emerged. Harper and the Conservatives denied various aspects of the event. That officials were dispatched to try and convince Cadman to vote with the Conservatives was acknowledged, but Harper insisted he did not authorize the offer of a life insurance policy. Cadman’s widow appeared to stand by her original story, but accepted that Harper did not know of the alleged bribery attempt. Further allegations asserted that the tape recording of Harper was doctored, although this allegation subsequently appeared to be refuted (cbc News 2008; Ha, Bailey, and Chase 2008). Not surprisingly, the scandal became daily fodder in the House of Commons. By the time the scandal broke, the Liberals had been defeated,

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and the Conservatives had assumed office and were trying to sustain their own minority government. Their election had been based, in part, on criticism of the Liberal sponsorship scandal and a promise to bring a new era of accountability and honesty to Parliament. The allegations, therefore, represented a scandal that the government could ill afford. The opposition parties, and particularly the Liberals who were trying to overcome the taint of the sponsorship scandal, relished the opportunity to turn the tables on the Harper Conservatives. Consequently, the Liberals went on a full offensive over the Cadman revelations. In February 2008, two articles, entitled “Harper knew of Conservative bribery” and “Harper must come clean about allegations of Conservative bribery,” appeared on the Liberal party website. The Liberals also requested the rcmp begin an investigation of the Cadman scandal. Harper responded to the website articles by immediately threatening to sue the Liberal party if an immediate apology was not forthcoming. Initially, the party, along with Liberal Leader Stéphane Dion, Michael Ignatieff, and Ralph Goodale, were all served with letters from Harper’s lawyers demanding that an apology be made in the House of Commons (Dearden 2008). The Liberals refused, and on 13 March 2008, Harper launched a $2.5 million lawsuit against the Liberal Party of Canada (Galloway 2008). In May of that year, the rcmp announced that they would not lay charges in the affair, which left the matter to slowly work its way through the civil courts (Bronskill 2008). The initial claim of $2.5 million included a demand for $1 million in general damages, $1 million in aggravated damages, and a further $500,000 in punitive damages (Statement of Claim 2008, 1). In July 2008, after news broke of that the Liberal party was in a very weak financial position, an additional $1 million was added to the damage claim (Canadian Press 2008). In the fall of 2008, the trial was ready to proceed. However, the trial threatened to interfere with the October election of that year, and Harper successfully won an adjournment of the case until after the election was over. In February 2009, the matter ended abruptly. Stéphane Dion had left the Liberal leadership, and Harper unexpectedly dropped the lawsuit, but with agreement from all involved that there would be no further comment on the case or on the nature of any settlement.

Parliamentary Privilege and the Cadman Affair

In the litigation of the Cadman affair, Harper was invoking his rights, not as a Member of Parliament or as Prime Minister, but rather as a private

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citizen to seek redress where alleged slanderous statements had been made. In this regard, the litigation followed the familiar slapp route of transforming a public dispute into a private matter. Indeed, Harper himself, in commenting on the lawsuit, stated that “I have every right, as does my family, to defend our reputation, and the Liberal party will, as I said, come to regret engaging in this illegal and untruthful behaviour” (Campion-Smith 2009, A6). Even though the statements on the website were clearly not covered by parliamentary privilege, the lawsuit itself was also crafted in a fashion to avoid raising questions of parliamentary privilege. When the allegations were first published by the Liberal party, Harper announced his intention to seek legal redress. A “notice of libel” was sent by Harper’s lawyer, Richard Dearden of Gowling Lafleur Henderson, to each of Sté- phane Dion, Michael Ignatieff, Ralph Goodale, and the Liberal Party of Canada. The letter accused each of having committed libel through the publication of the two articles on the Liberal Party website (Dearden 2008). However, the actual statement of claim for the lawsuit, which was issued on 13 March 2008, only named the Liberal Party of Canada and the Federal Liberal Agency of Canada (the party’s fundraising arm), carefully avoiding naming any sitting members of Parliament. The litigation, therefore, focused on statements made outside of the House of Com- mons by an entity other than a sitting member. Despite the fact that the statements in this case cannot be brought within the framework of parliamentary privilege, the Cadman affair had profound implications for parliamentary practice. To begin with, the allegations themselves clearly related to the operation of Parliament and the integrity of its proceedings. The Prime Minister, in launching the litigation attempted to step outside his role as a Member of Parliament, ignoring the fact that the allegations themselves related to his conduct, not as a private citizen, but rather as Prime Minister and leader of a political party. This seemed to be recognized in the initial position taken by his legal team. In the notice of libel, remedies were demanded that were specifically geared towards Parliament. In particular, Harper not only demanded that the articles be removed from the Liberal Party website, but additionally that Stéphane Dion read the following statement in the House of Commons: “Last week Mr. Ignatieff, Mr. Goodale and I made defamatory statements falsely claiming that Prime Minister Stephen Harper acted illegally in matters concerning former British Columbia M.P. Chuck Cadman. Today, we acknowledge that the Prime Minister has acted ethically, morally, and legally and retract the statements we made to the contrary. We apologize

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to the Prime Minister for the unfounded attacks made on his reputation” (Dearden 2008, 4). The remedy demanded clearly placed the issue back in the parliamentary arena and demonstrated that the Prime Minister and his legal team saw Parliament, and not the Liberal Party website or any other mode of communication in the private sphere, as the vehicle by which redress should take place. This leads us to the most serious potential consequence of members of Parliament utilizing the courts as a mechanism for seeking redress for comments made within the context of political debate, namely, that it represents a judicialization of parliamentary and political discourse and threatens to limit the possibility of full political debate, both within the House and outside it. Greg Flynn, in an analysis of the Cadman lawsuit, argues that once the litigation commenced government replies to opposition questions on the issue increasingly referenced the judicial case (2010). This suggests the case did have an impact on the nature of the debate in the House of Commons and undermined the capacity of opposition parties to scrutinize the government (Flynn 2010). If the objective behind the litigation was to suppress inquiry into the Cadman affair, it was aided by principles and conventions of parliamentary privilege. One of the limitations on the freedom of speech of members of Parliament is the sub judice convention, which holds that Members should not make reference in debates, nor make motions or ask questions about, matters awaiting judicial decision. The enforcement and interpretation of the convention is left to the Speaker, and in many respects it is a voluntary restraint (Mar- leau and Montpetit 2000, sec. 3). Nevertheless, in the context of the Cad- man affair, it certainly added a dimension of institutional political chill. Ministers were able to sidestep questions by simply referring to the fact that the issue was before the courts. In many respects, then, the Cadman litigation appears to follow the classic formula for a slapp: a financially vulnerable or weak defendant, an arguably more powerful plaintiff, and claims of harm or injury that were dubious at best. In the Cadman case, the dubious nature of those claims is reinforced by the fact that any damage suffered by the Prime Minister would arguably fall well within the normal range of day-to-day political conflict. The fact that conventions of parliamentary privilege themselves required a silencing of debate on the issue contributed even more to the appearance of a politically motivated lawsuit. What is unique about the Cadman case is that we have one elected Member of Parliament, the Prime Minister, ostensibly suing the leader of the opposition and his political party. Although the lawsuit was formally

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directed against the Liberal Party, much of Harper’s criticism of the articles on the Liberal website were directly squarely at Stéphane Dion. The Cadman case is the only example of this happening in Canada. Indeed, a survey of slapps internationally reveals very few such cases. It appears generally accepted that one does not sue opposition parties or opposition members of the legislature in regard to active debates that are taking place within the public sphere.

Legacy of the Cadman Affair

It may be premature to say that the use of litigation as a strategy for silencing political opponents is becoming a trend, but it is telling to note that in recent years there have been several such incidents. One example of a threatened lawsuit took place in November 2006, when Paul Martin, then Prime Minister, threatened to sue Stephen Harper over comments Harper made in reference to the sponsorship scandal. Harper had referred to Liberals as corrupt and compared them to members of “organized crime” (Ottawa Citizen 2005). In this instance, the statements were made in the House of Commons and were fully protected by parliamentary privilege. Indeed, Martin’s threat of legal action explicitly stated that a lawsuit would be immediately forthcoming if the statements were repeated outside the House of Commons. Ironically, Martin’s threat of a lawsuit may have provided the inspiration for the subsequent tactics displayed in the Cadman affair. Similarly, in November 2010, Quebec Premier Jean Charest threatened to sue Gérard Deltell, leader of the Parti Action Democratique, for remarks in which he referred to the premier as a political “godfather” (cbc News 2010b). These remarks were made in conjunction with an ongoing scandal alleging corruption within the Quebec construction industry. That scandal involved allegations of a connection between the corruption in the industry and the Liberal Party of Quebec and its fundraising. Allegations had also been made by Marc Bellamare, a former justice minister in the Charest government, that Liberal party fundraisers had tried to influence the appointment of judges in the province. This allegation also prompted a defamation lawsuit by Charest, along with the creation of a commission of inquiry, which is discussed in more detail below. In 2011, Peter MacKay, the Minister of Defence, made a general threat that opposition politicians might be the subject of a defamation lawsuit. In this case, MacKay had come under repeated questioning from oppo-

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sition politicians over an incident where a search-and-rescue helicopter had picked up MacKay from a fishing lodge in Newfoundland where he had been vacationing. MacKay insisted that he had been participating in the observation of a training mission, although evidence from the Minis- try of Defence indicated inconsistencies in this story (Ditchburn 2011). The fact that the government had announced the closure of a search- and-rescue centre in Newfoundland, and persistent equipment problems with the aging fleet of Cormorant helicopters, made this a very sensitive and potentially explosive issue in the province. After documents released by the Ministry of Defence indicated that department staff had concerns about the appearance of the trip and indicated that the pickup would have to be under the guise of a search-and-rescue operation, opposition mps, including Interim ndp Leader Nycole Turmel and Liberal mp Marc Garneau, stated that MacKay had lied to the House of Commons when he had previously answered questions on the subject. While some of these allegations were made within the House of Commons, they were also repeated outside the House. MacKay’s office stated that the minister considered his character and personal reputation had been attacked, and that he would look into legal options against those who had assailed his integrity (Ditchburn 2011). Despite these threats no action was taken. As indicated, lawsuits between sitting politicians are relatively rare in Western democracies. The most consistent use of litigation as a tool of suppressing political criticism by opposition politicians has taken place in Singapore. Lee Kuan Yew and his government, the People’s Action Party, have routinely and effectively suppressed dissent by suing any real opposition. The government has tried to effectively bankrupt dissenting parties by litigation, with the Singapore judiciary widely believed to be complicit in the arrangement. Between 1979 and 2005, government politicians brought seventeen cases to Singapore’s courts and were awarded over $6.9 million in damages. This figure does not include other cases that were settled out of court (Hah Foong Lian 2007). A typical example will suffice to indicate the nature of most of these cases. In 2001, two senior party officials, Lee Kuan Yew and Prime Min- ister Goh Chok Tong, sued Chee Soon Juan of the Singapore Democratic Party for suggesting that more than $9 billion of public money was lent to the government of former Indonesian President Suharto. The comments were made during the run-up to a national election. Mr. Chee complied with demands that he apologize for the comments, but still was required by the courts to pay a hefty fine by way of settlement (Hah Foong Lian

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2007). The same strategy was used in the run-up to the 2006 national elections when Prime Minister Lee Hsien Loong and his father, former Prime Minister Lee Kuan Yew, sued the leader of the opposition party and seven other leaders of the party for defamation. Singapore has come under extensive criticism from both domestic and international sources. Both the us State Department and Amnesty International have accused the Singapore government of systematically using the country’s very strict libel and slander laws to silence critics, particularly during election campaigns (Hah Foong Lian 2007). In Singapore, the People’s Action Party has ruled continuously since independence from Britain in the 1960s, and opposition parties are typically able to elect only a handful of representatives at best. The utilization of litigation as a tool of political debate between members of legislatures appears to be fairly rare, and Singapore is hardly a democracy worth emulation. Despite this, there appears to be very little to prevent such lawsuits, other than the willingness of politicians to abide by an understanding of the appropriate rules of the game.

Members of Parliament Suing Citizens: Jean Charest v. Marc Bellemare

It is relatively rare for a Member of Parliament to sue members of the public. Where it does take place it is often the result of a broader partisan political conflict, and it often takes place within the context of elections. In general, politicians are very well aware that, as politicians, they will be the subjects of criticism. Occasionally such criticism may cross the line into what might be considered defamatory language. Certainly, if every politician sued when they were referred to in unflattering terms, the courts would be swamped with cases. When these cases do occur, however, they are worth noting, for they provide insight into how such litigation affects parliamentary processes of accountability. There are a variety of examples of this sort of litigation. In 2002, Sam Bass, an Australian mp, sued two activists who had criticized him during an election campaign. They handed out material that outlined ways in which Bass had mismanaged funds and failed in his position as an mp. The initial trial was decided in favour of Bass, citing malicious intent by the defendants. This was overturned on appeal, with the court ruling that any public debate during an election campaign might be characterized by a degree of malice and that politicians should not bring such cases to

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court. From the court’s perspective, it was simply an element of the democratic process (Roberts v. Bass 2002). Often cases of this sort are regarded as clear violations of freedom of expression, particularly when they take place within the framework of an election. In 2002, California Governor Gray Davis was criticized in a series of television ads paid for by the American Taxpayers Alliance. The Governor Gray Davis Committee, a Political Action Committee set up for the Governor’s re-election bid, sued the alliance. The case was dismissed, with the court ruling that the advertisements were protected under the First Amendment freedom of the press provisions (Governor Gray Davis Committee v. American Taxpayers Alliance 2002). One recent, notable occurrence of this sort of litigation relates to a lawsuit launched by Jean Charest, Premier of Quebec, against his former Justice Minister, Marc Bellemare. Bellemare had been elected to office in 2003 as a star candidate for the Quebec Liberal Party. He was appointed Justice Minister, but resigned one year later over the government’s failure to follow through on its election promise to reform Quebec’s automobile insurance system, and he relinquished his seat in the National Assembly almost immediately. In April 2010, nearly six years later, Bellemare made a series of explosive revelations regarding corruption and interference in the process for appointing judges while he was Justice Minister (Millan 2010a; Inquiry Commission 2011). More specifically, Bellemare alleged that attempts were made by Liberal party fundraisers to influence him in the appointment and promotion of judges. He claimed to have been subjected to inappropriate pressure with respect to the appointment of two judges, both of whom had connections to Liberal party organizers and cabinet ministers, and with respect to the promotion of a third judge. Bel- lemare alleged that Liberal party fundraisers had pressured him to appoint these individuals because of their connections to the Liberal party and the benefits that their appointment would make in terms of ongoing fundraising (Millan 2010a; Inquiry Commission 2011, 6). It is important to place these allegations within the proper context. At the time Marc Bellemare came forward with his assertions, the Quebec Liberal Government was in the midst of an ongoing scandal regarding allegations of corruption in the construction industry. This scandal included allegations of payoffs to municipal and provincial politicians, as well as the involvement of organized crime within the construction industry. The corruption, it was alleged, reached into the Liberal party and included several party fundraisers. In this context, the new allegations of interference in

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the appointment of judges exploded on the Quebec political scene. The government was intensely unpopular at the time, with 77 percent of Que- becers expressing disapproval with the government’s performance (Chung 2010). Bellemare also alleged that the premier himself was aware of the corruption and endorsed it. According to Bellemare’s public statements on the issue, as well as his testimony before the Battarache Commission that investigated the matter, he met with the premier to express his concerns and was told that the fundraisers involved were important individuals for the party. He claimed the premier told him to comply with the fundraisers’ wishes as it was important for the party (Inquiry Commission 2011, 7; Millan 2010b). Charest responded to the new allegations immediately by threatening and then launching a $700,000 lawsuit. He claimed that Bellemare had made false and defamatory allegations that had been widely reported in the media and that his reputation had been harmed by them. Charest also announced a provincial public inquiry, chaired by former Supreme Court Justice Michel Bastarache, to investigate the judicial nomination process. Bellemare, in turn, counterclaimed for $900,000 in damages, alleging that the premier had defamed him by calling him a liar. Effectively, then, we have what appears to be an initial slapp lawsuit and a countersuit, which is sometimes referred to as a “slapp-back” (Canadian Press 2010; cbc News 2010c). Since slapps are usually designed to prevent further public scrutiny of a public issue, or limit engagement around that issue, it is interesting that in this case Premier Charest also called for an independent judicial inquiry into the allegations. The premier, at this point in time, was under considerable pressure to call an independent commission of inquiry into the construction industry as a whole. The judge-fixing scandal arguably provided an opportunity to take some action on the corruption issue, while at the same time limiting the scope of inquiry. It is important to remember that judicial inquiries also have a long history as a mechanism by which political disputes can be “judicialized” and taken out of the political arena. In this case, the combination of a public inquiry and a civil lawsuit, operated together to significantly limit the degree to which legislative scrutiny could be given the corruption issues. Jean Charest filed his lawsuit in April 2010, and called the commission of inquiry at the same time. The lawsuit proceeded slowly while the commission did its work at the same time. The commission heard testimony

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from Bellemare in early September of that year. Bellemare was subjected to intensive cross-examination by Charest’s lawyers. During the inquiry, a number of inconsistencies emerged in Bellemare’s testimony. Indeed, some of these inconsistencies contributed to Justice Bastarache’s conclusion that Bellemare’s allegations could not be substantiated (Inquiry Com- mission 2011, 16–17). It was immediately after his appearance at the commission that Bellemare launched his own lawsuit against Charest. Bellemare’s suit claimed that he had suffered significant damage to his reputation as a result of Charest’s lawsuit and the establishment of the Bastarache Commission. The statement of claim alleged that Bellemare was “machine-gunned with questions and insinuations about his personal and professional life by the plaintiff’s representatives in a direct intent to irreparably damage his reputation, his integrity, and his credibility” (Ca- nadian Press 2010). The civil lawsuits between Charest and Bellemare clearly had an impact on the proceedings of the Bastarache Commission. The commission’s mandate was to investigate allegations made by Bellemare regarding the process for the appointment of judges to the Court of Quebec, and more specifically, allegations of external influence by third parties (Inquiry Commission 2011, 1). The commission was also empowered to make recommendations to the government with respect to changes to the process for appointing judges. In discussing his mandate, however, Justice Basta- rache made very clear the need to distinguish between the role of the commission and the role of the trial judge in the lawsuits brought against each other by Charest and Bellemare. He stated:

There is no lawsuit before this Commission. The procedure to be followed in the inquiry is not adversarial, as it would be in a trial. This Commission does not have the mandate to make pronouncements on any individual’s civil liability or criminal culpability and it cannot legally do so. The Supreme Court of Canada has stated that a commissioner chairing an inquiry commission must refrain from expressing his or her factual findings in words that imply a conclusion of civil liability or criminal culpability, in order to avoid their being interpreted by the public as declarations of legal liability. (Inquiry Commission 2011, 1)

While this statement regarding ability of a commission of inquiry to make statements regarding civil or criminal liability is undoubtedly accurate, it is generally rare for a lawsuit based on the same set of facts to be proceeding

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through the courts at the same time that a commission is holding its inquiries. This put Justice Bastarache in a particularly difficult position. One of the key allegations made by Marc Bellemare was that the premier not only knew of the alleged influence of Liberal party fundraisers, but also condoned it and instructed Bellemare to comply with those requests. This was a key issue in both the civil lawsuits and the commission of inquiry. In the end, the commission held that there was insufficient evidence to conclude that Bellemare had been unduly pressured in the appointment of the judges. It did not go so far as to say there had been no attempt to influence Bellemare, but rather that he had acted indepen- dently of whatever pressure there might have been. In determining the extent to which the judicial process had been compromised by external influence, the question of whether or not Premier Charest had instructed Bellemare to do what the fundraisers had allegedly requested was critical. Indeed, if the premier had, in fact, told Bellemare to comply with the fundraisers requests, then the issue of the extent to which Bellemare was pressured in making appointments must be seen in a completely different light. However, since this was also the issue at the heart of the civil lawsuits, Justice Bastarache chose not to address it. He recognized that the allegations regarding the premier’s comments were very serious and called into question “the Premier’s integrity and reputation” (Inquiry Commission 2011, 17). Accordingly, Justice Bastarache concluded that they fell squarely within the scope of the civil lawsuits: “The content of the Premier’s statements during the meetings … as alleged by Mtre. Bellemare, is the very subject of the action in defamation brought by Jean Charest. It would be highly prejudicial to one of the parties were I to make findings on issues that will be debated in adversarial proceedings before the Superior Court. That is a task for the trial judge, should it come to that” (Inquiry Commission 2011, 17). The coexistence of the civil lawsuit, then, hindered the ability of Justice Bastaroche to make a full inquiry into the facts that underpinned the formation of the commission in the first place. At the end of the day, the Bastarache Commission found that the judicial appointment process in Quebec was relatively lax and subject to weaknesses that rendered it open to abuse and manipulation. The commission’s report did lead to some changes in the appointment process; however, as a vehicle to inquire into the underlying scandal, the commission proved relatively unsatisfactory. Charest claimed to have been vindi- cated by the commission report, while Bellamare dismissed its findings,

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and cited a number of problems with the process followed by the commission (Séguin 2011). Nevertheless, a very short time after the commission’s final report, Charest and Bellamare mutually agreed to drop their respective lawsuits. The Charest v. Bellemare case, then, provides another striking example of how a lawsuit can affect processes of accountability. In this case, a judicial inquiry was unable to probe as extensively as it might otherwise have done because of civil lawsuits. The case is similar to Harper v. the Liberal Party and Mulroney v. Thibault in this regard. All of these cases provide examples of situations where civil lawsuits adversely affect the operation of parliamentary and legislative processes.

Combatting the Judicialization of Parliament

Conceptualizing cases such as those surveyed above as slapps has considerable advantages over the concept of parliamentary privilege. The latter tends to be an all or nothing affair. On the one hand, statements made within the context of parliamentary proceedings are given absolute protection, regardless of whether they may have been made maliciously, and with no regard for the harm they might do. On the other hand, statements made outside Parliament are given no protection, even if they are intimately tied to the ongoing political issues of the day. This situation is an open invitation to litigation such as we saw in the Cadman affair, and draws an artificial distinction between the business of Parliament and broader political discussion. To a certain extent, parliamentary privilege developed in order to ensure that the proper functioning of Parliament would not be hindered by litigation. However, cases such as those discussed in this chapter illustrate that litigation prompted by statements unprotected by the privilege can still have an impact on how Parliament is able to scrutinize important public issues. This all-or-nothing approach to free speech prompted the New South Wales Parliament to introduce a legislative “right of reply” (Parliament of New South Wales 2007). Under this provision, if a person or corporation referred to in the Assembly feels that they have suffered harm, they can write to the Speaker and request that they be allowed to publish a “response” in Hansard. The Speaker considers the appropriateness of the response, which must be made within six months of the original comments, and then refers the matter to the Standing Orders and Procedure Committee, which gives the issue a more detailed consideration. This committee assesses the degree of harm and decides whether the response

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should be published. It should be noted that the right of reply only applies to private individuals and corporations. Sitting members of the House are not covered by the legislation, precisely because they always have a right to reply and comment within the House itself. The New South Wales approach provides a potentially effective means to provide some relief to those who feel that they have genuinely been defamed by politicians speaking in the legislature. Yet it does not address the situation where statements are made outside the legislature. The New South Wales approach, however, could be extended by legislation to apply to any statement made by a Member of Parliament within the course of his or her duties as a member, regardless of the context in which they were made. This would provide a greater degree of protection from civil litigation for defamation and recognize that the work of mps is not restricted to statements made in the legislature. At the same time, it would draw a clear distinction between statements made in a private or individual capacity, and statements made as part of one’s responsibilities as an elected representative. The ruling of the Speaker, and the standing committee, would determine whether or not the application of the privilege was warranted. If it were decided that the statements did not relate to the mps work as a public official, there would be no privilege and the aggrieved individual would be free to seek recourse in the courts. There has been no discussion in Canada of instituting a “right of reply” within the parliamentary context. However, the Supreme Court of Canada has recently issued a series of rulings that would indicate judicial support for the creation of a defence against defamation lawsuits where issues of public importance are at stake. The effect of such a defence would be to limit the potential for mps being sued for statements made outside of Parliament. In Grant v. Torstar Corp. (2009), the Court recognized a defence of responsible communication on matters of public interest. Prior to this decision, the only defence to a defamation case was to establish the truth of one’s statements. In the Torstar case, Peter Grant sued the Toronto Star newspaper for defamation regarding a story it had published about a proposal for the development of a golf course. The story included comments by local residents that alleged Grant had used political influence to gain planning permissions for the development. The newspaper contacted Grant for comments on the allegations, but he declined to do so. The Supreme Court in its decision created a defence to a defamation claim of responsible communication in the public interest. Chief Justice McLachlin found that such a defence was necessary in order to prevent

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free speech on public issues from being chilled. While the defence is framed in terms of media coverage of public interest stories, the court was very clear that it would not apply only to journalists, but also to bloggers and any other people involved in the dissemination of information to the public. For the defence to be applicable, two preconditions must be met. First, the issue that is the subject of the story must be one of public interest, and second, the defendant must show that he or she acted responsibility. This involves the requirement that some attempt be made to diligently verify the statements contained within the story. In other words, even if the statements are false and defamatory, a qualified privilege will be extended to them as long as they were made in a responsible manner. The court then elaborated on a series of factors that should be taken into account in determining whether or not the defendant had acted responsibly. These included:

• the importance or seriousness of the allegation; • the public importance of the matter; • the urgency of the matter; • the status or reliability of the source; • whether the plaintiff’s side of the story was sought and accurately reported; • whether the inclusion of the allegedly defamatory statement in the story was justifiable; • whether the statement’s public interest lay in the fact that it was made rather than its truth.

The addition of a defence of responsible communication in the public interest is of great significance in Canadian defamation law. It also has direct relevance to the question of slapps. Many slapps involve statements that arguably are made in the public interest. In Grant v. Torstar, Grant sued the Toronto Star for the publication of statements that community members had made. If the facts were slightly different, the case might have constituted a slapp. If, for example, Grant’s neighbours had made those statements as part of a campaign to stop the development of the proposed golf course, and a defamation lawsuit had been brought against them directly, then the case would have taken on a typical slapp profile. The decision in Grant v. Torstar case was limited to dissemination by media such as newspapers, radio, television, and blogs and other Internet

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and social media news sources. In other words, the case is focused on the reporting of information about public issues through media sources. There is, however, no necessary reason for the case to be limited to these sorts of publications. Indeed, if we think about our initial criteria for examining slapps, it would make sense to extend the Grant v. Torstar principles to those defamation cases where the threat to democratic values is particularly high. One can readily see the applicability of the basic principles of Grant v. Torstar to many of the cases discussed in this chapter. When parliamentarians are raising important issues of public concern, as was the situation in all the cases discussed in this chapter, the dissemination of that material, either through media interviews or party websites, should be subject to the analytical criteria established by the Supreme Court. The litigation between Stephen Harper and the Liberal party, for example, fits the court’s framework extremely well. In that case, the party published or disseminated information that had been debated in the House of Com- mons—that information had already been published in a book that was in the public domain (and whose author was not sued for defamation) and the material came from a credible source who was in a position to know the veracity of the statements (Cadman’s widow). The website did not purport to get Stephen Harper’s version of events, although he had certainly been questioned about the issue in the House of Commons and his rebuttal was a matter of public record. Given the political context in which the statements were published, it would likely be unreasonable to expect the Liberal party to include those rebuttals in its own publications. In light of the Grant v. Torstar decision, had the Cadman case proceeded to court, it is very likely it would not have been successful. While it is quite possible, indeed even probable, that in the future Grant v. Torstar might be expanded to slapp-type lawsuits, it still does not provide a full answer to the slapp problem. In particular, as we have observed, slapp lawsuits are not brought for the purpose of actually winning the case. Rather, they are launched as a political tactic. The fact that the court will likely rule against the plaintiff rarely operates as a deterrent to a slapp lawsuit. The Grant v. Torstar approach still requires a case to be tried on its merits and for there to be a final judicial determination of liability. Consequently, it would do little to remove some of the primary incentives for the filing of slapp litigation. There would still have to be a lengthy and protracted case to determine the various elements of the defence. The court would have to hear evidence and arguments on the ques-

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tion of public importance and the steps the defendant took in order to exercise due diligence and fulfill the requirement for responsible reporting. In this regard an expanded version of the New South Wales approach to political libels has much to commend itself. As discussed, it leaves open the possibility for judicial redress in appropriate cases, but leaves the determination of the scope of any privilege to Parliament itself. In this way, the potential for a lawsuit adversely affecting parliamentary processes, or the debate of public issues by elected representatives, could be dealt with in an expeditious and non-judicial fashion.

Conclusion

slapps within a legislative context remain relatively rare. Nevertheless, cases like those discussed in this chapter represent low points in Cana- dian politics and the potential for the judicialization of Parliament. Free political debate and the ability of opposition politicians to criticize and make allegations about the government, as well as the operation of institutional structures and processes of accountability, are derailed and compromised by these sorts of lawsuits. It is, of course, too early to judge whether or not this is a trend that will continue. The success of these tactics, however, suggests that politicians may indeed look to them in the future. That would be highly unfortunate. Clearly, in an age in which communications take place through a variety of sophisticated media, including social media and the Internet, traditional notions of parliamentary privilege no longer operate to effectively guarantee free political dialogue. There is a need to develop more robust measures, such as anti-slapp legislation. Attempts to do this are the subject of the next chapter.

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In this chapter, we will examine efforts to regulate slapps. Such efforts necessarily limit access to the courts and potentially operate to exclude meritorious cases. The rule of law is considered a fundamental cornerstone of Western democracies, and inherent in the concept is the notion that the ordinary courts of the land are charged with the responsibility for determining the outcome of legal disputes. Legislation that regulates slapps appears to run afoul of this principle. However, such regulation is more than justified where the courts are themselves used in a fashion that undermines democratic principles of participation and engagement. The regulation of slapps involves a policy choice to privilege political expression and engagement over access to courts. A number of jurisdictions throughout the world have developed anti- slapp regulatory frameworks. This is particularly the case in the United States, where several states have introduced progressive and far-reaching legislation to curtail the impact of slapp lawsuits. A number of different approaches have developed. Some jurisdictions have attempted to create a far reaching “right” to public participation as a context for justifying the regulation of slapps. Others have attempted to frame the regulation of slapps within existing understandings of judicial due process and integrate restrictions on slapps into rules of civil procedure. This sort of regulation falls short of acknowledging a right to political participation, but approaches the question from the perspective that slapps constitute an abuse on the courts’ processes.

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While there has been considerable discussion about the need for anti- slapp regulation in Canada, and several provinces have pursued initiatives in this area, only the Province of Quebec currently has legislation in place to regulate slapps. In this chapter, we will examine the various approaches and principles that underpin an effective anti-slapp strategy, and consider their applicability to the Canadian context. We will also examine the efforts to enact such legislation in Canada, which not only provides a revealing insight into the difficulty of enacting this legislation, but also exposes the forces within Canadian political and economic circles that have mobilized against the regulation of slapps.

Principles Underpinning Anti-slapp Legislation

In addressing slapps, there are a number of principles and objectives that need to be kept at the forefront of the discussion. First, it has to be re- membered that plaintiffs’ rights to the rule of law and access to justice are not paramount or absolute. Rule of law considerations should give way to the democratic values of enhancing participation and political engagement. In most instances, slapps are designed first and foremost as vehicles for suppressing and blocking political engagement. They are not filed because plaintiffs have, or even believe they have, a legitimate griev- ance for the courts to adjudicate. In regulating slapps, then, it is critical that regulators keep in mind the strategic and tactical purposes that underpin slapp lawsuits. More- over, what makes slapps particularly effective is the disparity in resources between plaintiffs and defendants. It is this resource differential that permits plaintiffs to launch “losing cases” as a diversionary tactic. Since slapp filers are aware that their case has little merit and will likely lose, existing rules of civil procedure and substantive law are rarely effective at preventing slapps. Those rules are generally based on the belief that the adversarial judicial system involves parties of good faith who are both actively seeking remedy for real causes of action. The economics of a lawsuit, in most instances, means that plaintiffs will rarely carry forward with cases that they know are groundless and will likely lose. In slapp cases, however, this logic is turned on its head. Consequently, regulations need to address the underlying reasons for slapps and create a different set of incentive structures than normally exists in the judicial system. Cosentino (1990–91, 407–11) has laid out a number of principles that should govern the development of an anti-slapp regulatory framework.

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These include the following:

1 Defendants should be protected from the economic costs of litigation. This recognizes the fact that one of the principal strategic objectives behind a slapp lawsuit is to penalize the defendants economically. The plaintiff takes advantage of superior economic resources to force the defendant to incur the costs of a legal defence, which can be very expensive. The costs of defending slapp lawsuits, therefore, needs to be minimized or eliminated. 2 The chilling effect of slapps needs to be reduced. One concern with respect to slapps is that these lawsuits have implications that go beyond the immediate parties to the case. Individuals not named in the case may have concerns that should they speak out or become politically engaged they also will be subjected to a lawsuit. Legislation needs to send a clear signal that political participation is an important value and that individuals and groups will not be penalized for engaging in lawful political activities. 3 slapp lawsuits need to be resolved quickly and expeditiously. Lawsuits in general are not fast affairs. In the case of slapps, one strategy often employed by plaintiffs is delay. By making the case extremely complex and dragging it on for long periods of time, the costs to defendants are increased. Effective legislation, therefore, runs the risk of being undermined if there is not an expeditious mechanism for identifying and resolving slapps. As noted already, plaintiffs in these cases are not interested in winning. A slapp remedy that does not allow for a relatively speedy determination of the issue will not deter slapp cases from being launched, nor provide adequate remedies to defendants, nor prevent a chill in political engagement. 4 Lawyers should be discouraged from filing slapps. While the political and economic motivations of the filers of slapps are of paramount concern, it is important to recognize that they do not act alone. These lawsuits would not be possible without the cooperation of legal professionals who design the litigation and represent the plaintiffs’ interests. Every lawyer is under a general obligation to provide good representation and to refuse cases that are an abuse of the judicial process. While in an ideal world this should be sufficient to discourage lawyers from taking on slapp lawsuits, in general this has not been the case. Rules of professional conduct, and even disciplinary penalties, might be devised as a way of ensuring that lawyers uphold their obligations as officers of the court.

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5 Economic incentives to file slapps need to be eliminated. It should seem self-evident that slapp filers are prepared to spend money on lawsuits that have no or little chance of winning in order to advance their political goals. In this context, there must clearly be an economic advantage in doing so. In order to prevent slapps, then, this economic equation needs to be reversed, so that there are genuine economic disadvantages to filing slapp cases. This could involve damages, cost awards, changes to tax laws, or even an obligation to fund the target’s defence.

While any slapp regulations should achieve the above, there are important qualifications. As discussed earlier, slapps are generally considered improper or illegitimate lawsuits in that the cause of action is essentially bogus. The suit is brought to transform a political dispute into a legal dispute, and to quash political opposition. At the same time, we do have to acknowledge that legitimate lawsuits may be precluded by anti-slapp legislation. Consequently, regulations should provide some mechanism for distinguishing legitimate from illegitimate lawsuits. In order to achieve this goal, Cosentino (1990–91) suggests that the regulation of slapps must avoid reactionary responses to slapp-like lawsuits. In other words, the regulatory framework should avoid restricting the rights of legitimate plaintiffs because the facts of the case give the appearance of a slapp. This, of course, is very difficult to achieve. As discussed, the very structure of a slapp lawsuit is that it gives the appearance of a legitimate claim rooted in existing principles of tort law. In order to avoid error, therefore, there needs to be clarity not only about what is meant by a slapp, but also about who bears the onus of demonstrating the legitimacy of their case. In general, where the facts of the case would seem to indicate a slapp, the onus should not be on the defendant to demonstrate that the plaintiff’s case is illegitimate, but rather on the plaintiff to demonstrate that he or she does, indeed, have a real case to be tried. If this burden cannot be discharged, then the court should move quickly to dismiss the lawsuit. This raises two additional issues. First, the pleadings in a slapp case often contain a lack of factual context for the case, or an outright distor- tion of the facts. In the absence of a proper factual basis, however, it is very difficult for the court to make any sort of determination as to whether or not the case is a slapp or not. It is often only after lengthy discovery proceedings, and the expenditure of considerable time and money, that a sufficient factual basis is established to demonstrate the slapp nature

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of the case. Of course, this goes to the very heart why slapps need to be regulated in the first place. In general, then, successful and effective anti- slapp regulations may require that more and clearer facts be disclosed and argued at the outset of a case. The second issue is the possibility that anti-slapp regulations might themselves be abused. A number of scholars have raised the potential for defendants to engage in bogus political activities in order to conceal and obtain protection for what is genuinely tortious behaviour. So, for example, an individual might slander her neighbour, and then join the local homeowners’ association that is actively opposing the neighbour’s proposed redevelopment of their property. Any lawsuit brought by the neighbour as a result of the slander might then be framed as a slapp. In general, this sort of issue, while plausible, is unlikely to arise very often. In most slapp cases, there is a history of activism around an issue, and while it may very well be that personal animus and political activism might occasionally go hand in hand, the chronology by which most slapp lawsuits unfold usually presents a fairly unambiguous picture of motivation and intention. Nevertheless, this is an issue to which both lawmakers and judges need to be alert.

Existing Legal Remedies to slapps

One argument that is frequently made in opposition to anti-slapp legislation is that there already exist sufficient legal protections to prevent slapps. This argument usually takes two forms. One argues that the courts, within existing rules of civil procedure, have the tools at their disposal to deal with cases that are not meritorious, or which are brought for ulterior motives. The other argues that the substantive law, particularly in the case of defamation cases, is sufficient to deal with slapp cases. The fact that most slapp cases are ultimately lost is often presented as a justification that additional remedies are not required. In order to justify anti-slapp legislation, we need to deal with each of these arguments in turn.

Existing Civil Procedure Remedies It is a long-standing principle of English law that the courts are able to take steps to ensure that judicial processes are not abused by individuals in order to harass or intimidate. This would seem to speak to the very matter of the purpose behind a slapp. Such lawsuits are often termed

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“frivolous” or “vexatious.” In other instances, they are conceptualized as an “abuse of judicial process.” What constitutes a frivolous or vexatious case, however, is more difficult to define. Courts have repeatedly demonstrated an unwillingness to dismiss cases as long as there is some arguable ground for the case. The fact that the case is weak is not considered a basis for dismissing a case. A motion to dismiss a case essentially amounts to a claim that the pleadings disclose no reasonable cause of action. Of course, as discussed earlier, slapps are effective precisely because they successfully involve a process of dispute transformation. A political dispute is transformed into a legal dispute. The more effectively the filer of a slapp can cloak the issue in the trappings of a legal cause of action, the more successful the slapp will be. Statements of claim in slapp cases may seem to turn on trivial issues—damage to reputation because of name calling, damage to property because of trespass, etc.—but these do constitute real causes of action. In general, then, it is not too difficult to draft pleadings that can survive a motion to dismiss. In defamation, for example, the fact that an individual might, to others, appear thin-skinned, is not considered a basis for refusing that person a right to seek redress for defamatory statements. The law, in these instances, does not include the notion that one should simply turn the other cheek. The second component that makes having a case dismissed for no cause of action extremely difficult is the process by which courts assess such claims. Motions to dismiss a case are usually brought before any evidence is presented to the court. This provides a quandary in that the court has no evidentiary record on which to assess the validity of a case. At the end a trial, for example, a judge might look back and conclude that there really was not a basis for the case to be brought in the first place. However, at the beginning of the case the only material the court has to consider are the pleadings of the parties. The plaintiff has to set out his or her position in the statement of claim. This includes the legal claims that are being advanced (defamation, trespass, negligence, etc.), the factual events that support these claims, and the specific remedies that are being sought (damages, injunctions, etc.). The defendant then responds with his or her own statement of defence. It will set out the defendant’s version of events and make an argument as to why, based on this understanding, there is no liability for wrongdoing. The pleadings are important, for they serve to define the issues that the court will have to address, and they help to narrow those issues. Often, the pleadings reveal a degree of agreement

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about some facts and disagreement about others. This means that the parties can then structure their presentation of evidence to focus on those issues, leading to a more efficient and expeditious fact-finding exercise. However, when a defendant makes the argument that the plaintiff’s case discloses no cause of action, the court has to make its decision based on their conflicting accounts. It is well-settled law that courts will proceed by assuming the facts as presented in the plaintiff’s statement of claim are true and proven. The court will dismiss the case only if, upon accept- ing these facts as if proven, there is still no evident cause of action. The Supreme Court of Canada, in describing the correct approach, has stated the following:

The facts are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, defined as a cause of action “with some chance of success”? The plaintiff should not be driven from the judgment seat if there is a chance the claim might succeed. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with the case. Only if the action is certain to fail because it contains a radical defect should the relevant portions of a claim be struck. (Hunt v. Carey Canada Inc. (1990))

As a result of this approach, the odds are stacked against defendants being successful in motions to dismiss. Once the facts as alleged by the plaintiff are accepted as true, unless the pleadings have been drafted very poorly, it is almost a foregone conclusion that there will be a sufficient factual basis to substantiate the existence of what, at the very least, appears to be a legitimate cause of action. This is particularly so in defamation cases. Whether the words spoken constitute defamation is a question of law to be determined at trial. Once there is an allegation of defamatory language in the statement of claim, the court must accept that the words were, in fact, spoken, and then proceed to trial to determine whether or not there has been defamation. Moreover, since the principle defence to an allegation of defamation is the truth of the statements—and this is something the defendant must establish at trial—it is extremely difficult to succeed on a motion to dismiss on the basis that there is no reasonable cause of action. In general, then, the courts tend to be very conservative in striking out claims without a full trial on the merits. As a result, while the courts

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may have the tools to deal with slapp lawsuits, judicial attitudes towards motions to dismiss cases renders it very difficult for the targets of slapps to make use of these remedies. Indeed, it is ironic that opponents of anti- slapp legislation point to the availability of these remedies as an argument against the need for more proactive regulation. The fact that these remedies exist, but have done little to prevent slapps from being launched, should indicate their inadequacy as a mechanism for deterring slapps and protecting political expression.

Existing Substantive Remedies

This raises the question as to whether or not substantive legal defences, as opposed to procedural remedies, should be considered sufficient to deal with slapps. The vast majority of slapp cases are ultimately dismissed. Plaintiffs rarely win these lawsuits. One argument might be that these facts indicate that the legal system is working as it should, and that unmeritorious cases are not successful. Nothing more, therefore, needs to be done. Indeed, as discussed in the last chapter, changes to the substantive law—particularly in the area of defamation, which has expanded qualified privilege to make statements related to matters of public importance— indicates that the ability of defendants to mount successful rebuttals to slapp lawsuits is, if anything, increasing. However, there are several reasons why it is insufficient simply to recognize that most slapp lawsuits fail and why more substantive regulation should be pursued (Nadarajah and Griffin 2010). The most important of these reasons, as has been frequently pointed out, is that plaintiffs in slapp lawsuits are not looking for victory. The intention of such suits is to stifle expression and chill political opposition and criticism. The even- tual disposition of these lawsuits is irrelevant to the achievement of this objective. Simply allowing slapp lawsuits to play themselves out, which in many instances might take years, fails to address the free speech issues that they raise. Second, in many instances, even if defendants are successful against slapp lawsuits, they have to bear significant economic costs in mounting their defences. While courts often order costs to the successful party, cost awards in Canada rarely cover all of lawyers’ fees. In Canada, rules of civil procedure usually provide that successful parties recover what are termed “party and party” costs. These are costs that are generally understood to be “necessarily” required in order to conduct the litigation, and they generally

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represent about one-third of the true costs of litigation (Lott 2004, 41). An order for “solicitor and client” costs, which is a more onerous cost award, provides a more accurate reflection of the actual costs charged by a party’s lawyers. This is an unusual cost award and is rarely issued by courts. How- ever, even solicitor and client costs rarely represent 100 percent of the successful party’s costs. Ironically, the rationale for cost awards not representing all of the losing party’s actual litigation costs, was to avoid creating an incentive for parties to engage in frivolous litigation by transferring the costs of that litigation to the other party. For most slapp filers, however, these awards are simply the cost of doing business (Tollefson 1994, 208). The limited nature of cost awards does mean that, for slapp defendants, there will still be significant economic costs, even if victorious. As a result, slapp lawsuits will still create a potentially significant economic chill on political engagement. If one considers the principles articulated above by Cosen- tino, it should be clear that existing substantive legal remedies do little to alleviate the economic costs on defendants, or to negate the economic incentives that exist for plaintiffs to file slapp cases. Even where both parties can agree to settle a dispute, there may be significant implications for public engagement. In some instances both parties may choose not to pursue the litigation to a final judicial decision. Indeed, our system of litigation is very much set up to encourage parties to settle disputes. In general, this is advantageous and results in an efficient utilization of court resources. However, courts rarely oversee the terms of legal settlements. Since lawsuits represent disputes between private parties, the courts take the position that the substantive terms of settlements are not really their concern. There are, of course, exceptions to this, most particularly in areas of family law and in cases where the best interests of children are at stake. In slapp cases, however, the settlement of the dispute might signal the capitulation of the defendants to the superior economic power of the plaintiff. In this context, slapp settlements may carry with them terms that are extremely antithetical to political engagement and free speech. Settlements of slapps often carry with them a requirement for an apology, or a public retraction of whatever statements gave rise to the slapp. More concerning, however, is that such settlements often carry with them a requirement that the defendants cease their political activities. They can be used to force defendants to stop making public statements about the plaintiff or their activities, to cease participating in boycotts, blockades, or demonstrations. Settlements may

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even include a requirement that the defendant not discuss the terms of the settlement. Moreover, once a settlement has been reached, the plaintiff is permitted to file that settlement with the court. Consequently, any breach of the settlement by the defendant in the future will permit the plaintiff to sue once again, but in addition, may be considered contempt of court. A finding of contempt of court can lead to fines, and even the possibility of imprisonment, although this is very rare and would happen only in extreme cases. The effect of this, however, is that courts become involved in the judicial enforcement of political gag orders on the activities of slapp targets. One might expect that as defences to defamation claims are widened by the courts the number of slapp suits launched might decrease. If the courts become more open to arguments regarding the importance of expression on public issues, those filing lawsuits may eventually begin to feel that the economic costs of launching slapp suits do not justify the outcome. Indeed, if a court ultimately rules that the defendants are engaging in discussions of matters of public importance, the judicial outcome may be more damaging to the plaintiff than originally contemplated. And it is always possible for defendants to leverage a lawsuit to generate even more publicity for their cause (McCann and Silverstein 1993). In general, while this might be an anticipated outcome, experience demonstrates that it is relatively uncommon. Nevertheless, reform of the substantive law, and particularly the law of defamation, continues to be a popular approach to dealing with slapps. In Australia, experiences with slapp-type defamation claims led to significant legislative changes to the laws of defamation (Ogle 2010). In particular, in an effort to curtail the number of slapp defamation cases, legislation was passed that removed the right of corporations to sue for defamation.1 The result of this bold move, however, was quite interesting. In response, corporate slapp tactics changed. First, individual executives of corporations began to bring defamation cases in their own name, rather than in the corporation’s name. For activists, this could be dealt with relatively easily by ensuring that all statements related to the company, rather than to individual executives or members of the board of directors. More telling, however, is that the closing down of defamation as a cause of action led to an increase in the number of slapps alleging economic torts, including such things as conspiracy, interference with economic activities, and trespass (Ogle 2010). The problem of slapps cannot be dealt with effectively through one area of substantive law, simply because there are such a wide variety of

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forms that these lawsuits can take. If the substantive law of defamation is changed to provide greater scope for freedom of expression, slapps are shifted to other causes of action. As a result, one needs to take a broader approach that focuses on the nature of slapp activity, rather than on the specific areas of law behind which slapps masquerade. Moreover, taking action in one substantive area can lead to counterintuitive results. In Aus- tralia, for example, the introduction of far-reaching legislation in the area of defamation has made it more difficult to introduce general anti-slapp laws. Efforts to do so have been stymied by those who point to the reform of defamation law as sufficient (Ogle 2010). In short, then, existing rules of civil procedure and substantive law may provide partial remedies to defendants, but in general they have proven ineffective and insufficient for addressing the problem of slapps. This has led to considerable attention devoted to the possibility of substantive anti-slapp legislation. It is to these efforts in Canada that we now turn.

Legislative Developments

Despite considerable concern regarding the impact of slapps on public participation, Quebec is the only Canadian jurisdiction with legislation in place to regulate these lawsuits. In the United States, legislation is more widespread, although certainly far from uniform. Jurisdiction to regulate slapps generally falls to individual states as part of their authority to oversee the administration of state courts. However, the federal government has jurisdiction over us federal courts. To date, however, there is no federal legislation in the us governing slapps. As of 2010, twenty-nine us states had anti-slapp legislation in place, although there was wide varia- tion in the level of protection provided (Norman 2010). Some jurisdictions, such as California and Illinois, provide relatively broad protections. Other jurisdictions, however, provide relatively narrow protection. Leg- islation in Pennsylvania, for example, only applies to statements about environmental issues made to a government agency, while a Florida anti- slapp statute provides protection against lawsuits brought by homeowner associations. Brown and Goldowitz (2010) have argued that this disparity in the levels of protection leads to forum shopping by plaintiffs who seek favourable jurisdictions in which to launch their lawsuits. This means that even if one lives in a jurisdiction with anti-slapp protection, there is still the possibility of a lawsuit being brought in another state (2010, 3). While it is always possible for defendants to make arguments about the appropriateness of a particular venue for the launching of a lawsuit, this simply

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adds one more element to the complexity of the litigation, further increasing the economic and personal costs of the litigation. Within the American context, three jurisdictions are frequently referred to as providing models, good and bad, for the legislative regulation of slapps: Washington State, New York, and California.2 Each provides a unique approach to the regulation of slapps. A brief survey of these legislative initiatives will provide a useful starting point for the consideration of legislative reform in Canada. In examining these initiatives in light of the principles set out at the beginning of this chapter, two issues become clear. First, legislation needs to provide both substantive and procedural remedies, including clear definitions of what constitutes a slapp and what types of activities are protected. Second, the legislation needs to provide an expeditious and timely mechanism for resolving these questions. De- lay is one of the primary tactics involved in a slapp lawsuit, so a quick resolution of the question of whether or not the litigation falls within the definition of a slapp is critical in order to offset the economic advantages to the plaintiff. The regulatory framework in Washington State is an example of a very limited approach to regulating slapps. The legislation only changed procedural rules and had a very narrow scope of application. It applies to situations where citizens are, in good faith, reporting information to a government agency that would be of reasonable concern to it. As a result, a range of activities, such as consumer boycotts, demonstrations, and other kinds of political engagement, is not covered by the legislation. Only direct communication to government is covered. Where this is the case, however, the legislation creates a positive defence to a litigation claim. The legislation does not, however, provide any mechanism for a preliminary adjudica- tion of these matters, or for an early or summary dismissal of a case. As a result, it is only at the end of the litigation that the defendant receives a ruling as to whether or not his or her slapp defence is successful. Given that the vast majority of slapp cases are won by defendants regardless of the existence of legislation, the Washington statute offers little by way of additional protections for defendants. The legislation does provide some economic relief for slapp defendants, by permitting recovery of expenses and lawyers’ fees. It also provides for statutory damages of $10,000 to be paid to the defendant (Lott 2004, 46). While these provisions are certainly helpful, again, defendants cannot avail themselves of this financial relief until the litigation is finished. As a result, the Washington legislation provides very little economic disincentive to slapp plaintiffs. There has

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been relatively little consideration of the Washington State legislation by the courts, reflective of the fact that it has generally not provided a particularly effective tool in addressing slapps. New York State also has relatively limited anti-slapp legislation. En- acted in 1992, it also applies to activities that involve “public petition and participation.” The scope of what constitutes public petition, however, is very narrowly defined as legal action arising from a situation where the plaintiff has “applied for or obtained a permit, zoning change, lease, li- cense, certificate or other entitlement for use or permission to act from any government body” (Lott 2004, 48; Stetson 1995). The legislation is directed towards addressing a fairly common type of slapp, namely, a situation in which an individual group opposes an application for a permit or licence, and is then sued by the applicant. Although this is a significant type of slapp, by restricting the legislation to such a narrow range of cases, a host of other types of activities that give rise to slapps are excluded. Indeed, the scope of the New York legislation is potentially narrower than Washington State’s. In Gill Farms Inc. v. Darrow (1998), for example, the defendant complained to the government over the plaintiff’s use of aerial insecticides. As a result, the plaintiff sued the defendant. The court decided that the New York anti-slapp legislation did not apply to the situation because the plaintiff did not have a permit for spraying the insecticides in the first place. In other words, the plaintiff was not seeking or applying for a permit, and therefore the defendant’s complaints to government officials fell outside the scope of the legislation (Lott 2004, 50). Ironically, the fact that the plaintiff was engaged in illegal activities operated to insulate him from the anti-slapp legislation. The New York state legislation, however, does provide for changes to the rules of civil procedure to enable the speedy dismissal of a slapp suit, which is a significant improvement over the Washington State model. Once a defendant demonstrates that litigation falls within the scope of the anti-slapp legislation, the onus shifts to the plaintiff to demonstrate why the case should not be dismissed. The statute then provides for the recovery of costs, lawyers’ fees, and special damages. However, these awards are all at the discretion of the courts, and in several cases judges have declined to award additional costs and the recovery of lawyers’ fees (Lott 2004, 49). California is widely regarded as having one of the most expansive anti- slapp regulatory frameworks in the United States (Braun 1999, 2003; Cosentino 1990–91; Lott 2004; Shapiro 2010; Tate 2000; Waldman

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1991–92). It provides a very broad range of protections to further “a person’s right of petition or free speech” under either the United States or California constitution. Section 425.16(e) of the legislation contains a broad list of protected activities, which includes:

1 any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law; 2 any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; 3 any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or 4 any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

This legislation clearly applies to a wide range of political engagement and discourse. It protects participation in governmental processes by explicitly including written and oral submissions to a range of legislative, executive, and judicial proceedings. At the same time, however, the law also applies to written and oral statements made about the issues in those proceedings. This would include statements made outside the official processes, but related to them. Beyond that, however, it also applies more generally to statements made publicly about issues of importance, even if there is no official governmental process in play at the time. In addition to a broad definition of the scope of protected activity, the California legislation also provides a variety of remedial clauses designed to reduce the potential for legal delays and to recompense defendants for the costs of slapp litigation. In particular, once defendants establish that their activities fall within the scope of the legislation, a special motion can be brought to dismiss the action. Lawsuits can only go ahead if plaintiffs can establish that that there is a probability that they will be successful in their claim, an explicit reversal of the typical judicial approach to dismissal motions. The law also requires that the special motion must be heard within thirty days and that all discovery proceedings are suspended until the motion is decided. If successful, defendants are entitled to recover their lawyers’ fees and costs as of right.

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In looking at the American models, it is clear that the implementation of the Cosentino principles varies considerably. One of the greatest difficulties lies in defining slapps in such a way as to achieve widespread protection of public expression. The degree to which the American initiatives operate to reverse economic incentives and alleviate the burden placed on defendants facing slapps also varies considerably. The California model is generally considered the broadest and most effective, and it has served as a touchstone for many reform discussions.

The Canadian Legislative Story

In Canada, like the United States, anti-slapp legislation falls within the jurisdictional authority of the provinces, and there have been several attempts to implement anti-slapp legislation. These efforts demonstrate the difficulty in overcoming entrenched attitudes around access to courts, and the difficulty in overcoming opposition from those interests that are most likely to seek recourse to slapps as a political strategy.3 In most instances, initiatives to regulate slapps have followed particular high-profile cases and the mobilization of social movement activists to pressure politicians and governments for action (Landry 2010). As discussed in Chapter 3, slapps became an issue of greater public concern in Canada in the 1990s. The publicity attached to high-profile cases such as Daishowa Inc. v. Friends of the Lubicon (1998) and Fraser v. Saanich (1999), along with increasing judicial criticism of slapps, gave credence to the position of activist groups that slapps were becoming an increasingly troubling phenomenon in Canada (Goldberg 1993; Landry 2010; Scott and Tollefson 2010). Initially, however, provincial governments were extremely reluctant to take up slapps as a legislative initiative. The first anti-slapp bill to be considered by a provincial legislature was in New Brunswick in 1997. A private member’s bill was presented to the legislature by Elizabeth Weir, then leader of the opposition New Democratic Party. The bill was introduced after a pulp and paper company sued student activists and conser- vation groups opposed to the logging of old-growth forests in central New Brunswick (Weir 2004; Landry 2010; Lott 2004). Entitled the Public Participation Act, the bill would have established a broad right of public participation and protected citizens from lawsuits brought “primarily to chill citizen participation or otherwise to harass or intimidate citizens and citizens’ organizations” (Public Participation Act 1996–97). To this end,

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the legislation would have provided that “every person has a right to participate fully in the process of government including the right to petition and communicate with government, and the freedom of speech, association, and demonstration on matters of public policy” (1996–97, Art. 3). In this way, the legislation clearly referenced the fundamental freedoms contained in the Charter of Rights and Freedoms and, like many Ameri- can legislative initiatives, directly tied the right of participation to efforts to influence government and participate in policy processes. Weir’s legislation would have provided a number of procedural mechanisms to deal with slapps, including early dismissal of actions that violated defendants’ right of participation, placing the burden of proof on plaintiffs to demonstrate the legitimacy of their case, and granting reimbursement to the defendant of any costs incurred as a result of the litigation. The bill also provided that the motion to dismiss could include a claim by the defendants for any additional damages incurred as a result of the lawsuit. As is frequently the case with private member’s bills in the Canadian legislative system, the Public Participation Act was not enacted into law. It received first reading in the legislature, but ultimately died on the order paper. Since then, numerous other slapp cases have received notoriety in New Brunswick, but there has been no further legislative action (Weir 2004). In 2003, another private member’s bill was presented in the legislature of Nova Scotia. Like the New Brunswick legislation, it too was introduced by an opposition member of the New Democratic Party. In general, the ndp throughout Canada is concerned about environmental issues, and often has close ties with members of the social movement and activist communities. Consequently, it is hardly surprising that support for anti-slapp measures has been particularly strong among New Democrats. The Nova Scotia bill was introduced in reaction to a lengthy and ongoing controversy over the proposed Digby Neck quarry and lawsuits brought by us company Bilcon against opponents of the project. The company sued a number of activists, including a retired professor and other local residents, alleging they had made defamatory comments about the company in statements at public meetings and in materials submitted to an environmental review panel considering the project (Digby Courier 2008). The Nova Scotia legislation also died on the order paper. A private member’s bill introduced in Ontario in 2008 met a similar fate (Landry 2010, 61). What is important about the private member’s bills introduced in both Nova Scotia and Ontario is that they were modelled on the success-

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ful introduction of anti-slapp legislation in British Columbia in 2001. British Columbia became the first jurisdiction in Canada to successfully introduce an anti-slapp law when the provincial ndp government passed the Protection of Public Participation Act.4 The law was brought forward by the government in response to considerable popular pressure and lobbying in the aftermath of the Fraser v. Saanich case. As discussed in Chapter 3, this was the first case in Canada to explicitly utilize the term slapp in relation to a lawsuit and to identify such cases as meritless actions with the goal of undermining democratic activities of the defendants. The British Columbia experience illustrates how critical public perceptions and social movement organization, combined with favourable political circumstances, can increase the possibilities for introduc- ing anti-slapp legislation. It also illustrates how quickly circumstances can change and progressive regulations can disappear.

The British Columbia Experience

The British Columbia experience with slapps has been particularly important. Cases in bc were some of the first slapps identified in Canada and helped bring the issue of slapps to widespread public attention. Against this backdrop, a grassroots campaign for the enactment of anti-slapp legislation developed in British Columbia. Scott and Tollefson (2010) have documented the importance of the Committee for Public Participation (CPP), a grassroots organization, in lobbying and pressuring the government for anti-slapp regulation. The cpp was a coalition of public interest lawyers, former politicians, legal academics, and individuals who had experienced slapp litigation. It formed in the early 1990s with the goal of engaging in a campaign of public education around the problem of slapps. It also drafted a model anti-slapp law to serve as the basis for discussions around the need for legislation. By 1994, the cpp had secured the support of over forty groups in British Columbia, including the Union of bc Mu- nicipalities, environmental organizations, the BC Federation of Labour, and the bc Civil Liberties Association (Scott and Tollefson 2010, 49). In effect, it was able to broker a coalition of local activists, environmental groups, lawyers, and trade unions in support of anti-slapp regulation. The coalescence of this support for anti-slapp legislation coincided with a period of turbulence for the governing ndp in British Columbia. The ndp government of Mike Harcourt, which was elected in 1991, was receptive to the idea of anti-slapp legislation, and ongoing discussions

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had taken place between the government and the cpp. However, this initial openness to the idea of regulating slapps disappeared after Harcourt’s resignation and replacement by Glen Clark in 1996. Clark’s tenure as premier was marked by scandal and controversy, which eventually forced his resignation. In 2000, Ujjal Dosanjh was elected leader of the party and became premier. An election was due to be called in 2001, but Clark’s tenure as premier had been disastrous for the party, and it continued to receive very low approval ratings in public opinion polls. Dosanjh moved to consolidate and regain the support of the party’s core constituencies in the labour and social movement communities. Revisiting the issue of anti- slapp legislation became an important part of the party’s strategy to shore up support within these groups (Scott and Tollefson 2010, 49). Initially, the ndp government under Dosanjh was fully supportive of the work of the cpp. Attorney General Andrew Petter, a former Univer- sity of Victoria law professor, was sympathetic on the issue. Petter had a reputation as a radical legal scholar who had written critically in the past of the dominance of corporate interests in the legal system and the failure of rights-based instruments such as the Charter to benefit social movements and equity causes. As an academic, he had also been critical of the capacity of corporations to differentially avail themselves of legal rights (Hutchinson and Petter 1988, 1989). In 2000, he introduced Bill 29, the Protection of Public Participation Act (pppa), which was modelled on the CPP draft legislation. Scott and Tollefson have described Bill 29 as an “exposure bill,” intended as a vehicle for promoting public discussion and input (2010, 49). The government solicited input from a number of different sources, including interest groups, local governments, and the legal community. According to Scott and Tollefson, there was considerable concern that the legislation would be viewed as infringing on the jurisdiction of the courts to control their process. Therefore, special con- sultations were held with the Supreme Court Rules Committee in order to determine how the law could be drafted in a way that was consistent with existing rules of civil procedure in the province (2010). Unfortunately, Andrew Petter announced that he would not be standing for re-election and stepped down from the position of Attorney Gen- eral. His replacement, Graeme Bowbrick, tabled Bill 10, a substantially revised anti-slapp law, in the legislature. While Bill 29 had established a broad statutory right to public participation, which provided the context in which the legislation would operate, Bill 10 abandoned this approach in favour of a narrower procedural approach to dealing with slapp litiga-

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tion (Scott and Tollefson 2010). Nevertheless, the passage of Bill 10 into law marked the first successful effort at passing anti-slapp regulations in Canada. Unfortunately, this victory was short lived. The ndp were defeated in the 2001 provincial election, and the right-wing Liberal government of Gordon Campbell quickly moved to repeal the law. The British Columbia legislation had several important features (Pro- tection of Public Participation Act, sbc 2001 c.19). While the final bill did not contain a right of public participation, it did include a broad purpose statement that clearly linked the objectives of the legislation with fostering and encouraging participation. To this end, the legislation stated that the purpose of the act was to “encourage public participation and dissuade persons from bringing or maintaining proceedings or claims for an improper purpose” (sec. 1(2)(a)). An improper purpose was then defined in the legislation as involving attempts

• to dissuade the defendant or other person from engaging in public participation; • to divert the defendant’s resources from public participation; or • to penalize the defendant for engaging in public participation (sec. 2(a) and (b)).

Like other anti-slapp laws, the legislation provided a mechanism for the early consideration of whether a case had been brought for an improper purpose, and for its summary dismissal if a positive determination was made. The legislation also provided for the reimbursement of all reasonable costs and expenses incurred by the defendant, and the opportunity to seek punitive or exemplary damages against the plaintiff (Scott and Tollefson 2010). As indicated, the Protection of Public Participation Act was not long lived. Less than five months after being enacted, the new Liberal government of Gordon Campbell repealed it. The position of the Liberal government was that existing rules of civil procedure already provided the courts with the tools necessary to deal with slapps, that the phenomena of slapps was greatly exaggerated, and that the legislation would operate to prevent meritorious claims from being heard by the courts. Of course, as discussed previously, these arguments are largely fallacious. Neverthe- less, the speed at which the new government repealed the legislation indicates very clearly that efforts to implement anti-slapp laws are likely to be met by considerable political opposition and resistance.

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The Quebec Experience

To date, the only jurisdiction in Canada to have successfully introduced lasting anti-slapp legislation is the Province of Quebec. Normand Landry has examined the dynamics leading to the enactment of the Quebec legislation and concludes that the successful passage of anti-slapp regulations requires convincing politicians of the presence of the phenomenon, the gravity or seriousness of the situation, and the existence of relatively clear and easily enforceable legal remedies (2010). These are certainly important aspects. However, the successful implementation of legislation is rarely simply a matter of logical debate and persuasive argumentation. Rather, supporters of anti-slapp legislation need to be able to exercise sufficient political power to overcome opposition from the vested interests that benefit from slapps. In other words, the campaign for anti-slapp legislation is another expression of the same political disputes and dynamics that are reflected in individual slapp cases. Supporters of regulation need to be able to build on public outrage over particular slapp cases, cultivate the support of sympathetic government officials, and point to the existence of successful models of regulation elsewhere. The existence of a relatively well-organized and coherent movement of supporters, who are successfully able to press their case before the government of the day, therefore, is critically important. The mobilization of supporters around anti-slapp regulation was certainly evident in British Columbia. Unfortunately, the sudden change of government radically redrew the structure of political opportunities that had supported the successful implementation of the legislation. The grassroots mobilization of support was also extremely significant in the Quebec case. Landry argues that the successful passage of Quebec’s legislation was the result of a process of social mobilization and consensus building that took place over a three-year period (Landry 2010, 61). In Quebec, public awareness of slapps was heightened due to a slapp lawsuit launched by American Iron and Metal (aim) against environmental organizations, private citizens, and a competitor. At issue was the company’s construction of a car-shredder plant on a former dump site located near a sensitive environmental area. The company had proceeded with construction of the plant without having obtained the required permits from either the municipality or the Ministry of Sustainable Development. Two environmental groups, the Association Québécoise de lutte contre la pollution atmosphérique (aqlpa) and the Comité de restauration de

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la Rivière Etchemin (crre), went to court to seek an injunction to prevent further construction. They feared that the plant would undermine a decade of work to rehabilitate a portion of the Etchemin River and cause further ecological damage. The injunction was granted by the Quebec Superior Court, and it was renewed fifteen times, effectively stopping the construction of the plant for an extended period of time (Landry 2010, 61–62). In response, aim launched a $5 million lawsuit against its critics. Both the aqlpa and the crre were grassroots organizations and relatively ill equipped to deal with the financial pressures of a major slapp suit. As a result, in October 2006, they launched a public anti-slapp campaign, entitled “Citoyens, taisez-vous!” (Citizens, be quiet!). While the campaign was directed towards raising money to combat the lawsuit itself, the organizations also decided to make slapp phenomena the object of their activism. Consequently, they organized their activities to raise public opinion over the dangers of slapp lawsuits and to convince the government to adopt anti-slapp legislation. This resulted in the lobbying of Members of the Legislative Assembly, and a major media campaign to develop broad public support. The campaign included support from high- profile public personalities and more than fifty organizations, including major trade union organizations (Landry 2010, 62). It was highly effective and resulted in the government establishing a commission of inquiry, headed by McGill law professor Roderick Macdonald, to investigate and report on the problem of slapps. The establishment of the Macdonald Commission was an important moment in the struggle to enact anti-slapp legislation in Quebec. The Macdonald report, which recommended that the government enact anti- slapp legislation, provided validation to the position of the activists and acknowledgement that the problem of slapps was both real and serious. It created an opportunity for activists to concentrate their efforts, as well as a focal point around which support for the enactment of legislation could coalesce. As Landry has argued, it created a “platform for popular education on slapps” that was subsequently used to engage in even greater mobilization around the issue and in more effective political lobbying of the government and legislators (2010, 63). These lobbying efforts resulted in the government establishing a second set of public hearings on the issue. The mobilization that had developed around the issue, and around the Macdonald report, continued to play an important role. The hearings were held between February and April 2008, and thirty-seven groups from across the province participated.

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The submissions were overwhelmingly supportive of the introduction of anti-slapp legislation. Moreover, many of these groups explicitly referenced the findings of the Macdonald report, adopting its definition of slapps and using the report to validate and confirm their own experiences. The public hearings continued to provide activists with a vehicle for mobilization and generated ongoing public awareness. This resulted in the formation of a larger coalition of organizations that brought to bear sustained pressure on the government to introduce legislation (Landry 2010, 63–64). On 13 June 2008, the Minister of Justice presented anti-slapp legislation to the legislature. Bill 99 followed very closely many of the recommendations of the Macdonald report, although there were significant deviations. In general, the Macdonald report had recommended to the government several options. These included: (1) enacting legislation based on pre-existing models of anti-slapp laws proposed elsewhere and in Canada; (2) amending the Code of Civil Procedure to deal with lawsuits brought for an improper purpose, along with the creation of a state-sponsored fund to support slapp targets; or (3) amending the Civil Code within the context of legislation specifically targeted at promoting citizen participation and public debate (Macdonald 2007; Landry 2010, 63). The Macdonald Commission urged the government not to blindly follow what had been done elsewhere, but rather to consider developing a “made-in-Quebec” solution to the problem of slapps. This, it was argued, was necessary due to the unique legal and political culture of Quebec as the only jurisdiction in Canada to have a civil law tradition and its own Charter of Human Rights and Freedoms (Macdonald 2007; Landry 2010). Bill 99 followed this last recommendation, amending the Code of Civil Procedure, while specifically contextualizing the changes as rooted in the need to promote freedom of expression and to prevent the abusive use of the courts (Landry 2010, 64). In the end, however, Bill 99 was not enacted by the National Assembly, which was dissolved when the government called a general election for November 2008. But the Liberal government was re-elected and the legislation was reintroduced to the legislature and eventually passed into law as Bill 9, An Act to Amend the Code of Civil Procedure to Prevent Improper Use of the Courts and Pro- mote Freedom of Expression and Citizen Participation in Public Debate. The bill received strong support from all parties in the National Assembly. There are several notable features of the Quebec legislation. First, it does not create a right of political participation, but rather is entirely

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procedural, conceptualizing slapps as a lawsuit brought for an improper purpose (Landry 2010, 65). According to the legislation, an “improper proceeding” consisted of claims that were clearly unfounded, frivolous, or dilatory, or that reflect conduct that is vexatious or quarrelsome. The legislation provided that such litigation might consist of bad faith or the use of judicial procedures in a way that is “excessive or unreasonable,” that causes prejudice to another person, or that “defeats the ends of justice,” particularly if it restricts freedom of expression in public debate (Code of Civil Procedure, Art. 54.1, para. 2).5 The procedural approach of the Quebec legislation, while providing many very important safeguards for the slapp victim, is also problematic in that the threshold of impropriety must be met before those provisions take effect. In theory this should not be too difficult. The legislation provides that a defendant need only establish that an action “may be an improper use of procedure” (emphasis added) in order to shift the onus to the plaintiff to establish that, in fact, the litigation is “justified in law” and is not “excessive or unreasonable” (Art. 54.2). While the requirements to obtain this transfer in onus to the plaintiff may not be too burden- some, the real test is what constitutes a justification of the litigation as legitimate. In other words, what is necessary to establish that the plaintiff has not acted improperly. This requires an examination of the motives of the plaintiff. Historically, as we have seen, courts have been reluctant to dismiss lawsuits even where the basis of that case is tenuous at best. In other words, if the plaintiff can make the argument that there have been words uttered that could be construed as defamatory, in many cases this might be considered sufficient to establish that the litigation is “justified in law.” The focus on the potentially improper nature of the litigation dis- tracts from the importance of the defendant’s public participation and the possible political motivations of the plaintiff’s suit. Such an approach runs the risk of failing to get past the dispute-transforming nature of slapp lawsuits. The Quebec legislation does allow for the court to dismiss an improper proceeding; however, there is no requirement for the hearing of a motion to dismiss on an expedited basis. This is a notable omission from the Quebec legislation, and sets it apart from other anti-slapp laws, such as those enacted in BC and California. The legislation includes a number of provisions to permit the litigation to continue, but under stricter judicial supervision than would normally take place. In particular, if it appears that the litigation may be improper, the court can impose conditions on the

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continuation of the action. The court can also require undertakings from the plaintiff with regard to conduct of the proceedings and recommend to the chief justice that special case management of the proceedings be established. These provisions serve to prevent undue delay, needless and excessive pretrial motions, overly long discoveries, and a variety of other procedural tactics often used by plaintiffs in slapp cases to prolong the litigation and maximize the financial impact on the defendant. There is a possibility, therefore, that the courts might exercise their discretion to permit the litigation to continue, along with imposing greater supervisory control over the proceedings than is normally the case in an adversarial setting. While this might assist the defendant to a limited extent, it certainly would not address the significant chilling effect of slapp litigation on public participation more broadly. The Quebec legislation tries to man- age delay and cost, rather than confronting the impact of a slapp suit on public engagement directly. One very important difference between the recommendations of the Macdonald report and the provisions of the legislation is the latter’s failure to provide for the establishment of a public fund to support targets of slapps and assist with their defences. This innovation would have done much to overcome the financial burden placed on slapp defendants. It was a particularly novel and unique recommendation of the Macdonald report. Instead, the legislation retained a reliance on damages and cost awards to deal with the financial implications of improper proceedings on the defendant. Nevertheless, the cost provisions in the legislation were notable in several respects. Perhaps most importantly, they permit an order that the plaintiff actually pay the costs of the defendant’s ongoing proceedings, should it be “justified by the circumstances” and shown that without such assistance the defendant would be unable to “effectively argue its case” (Art. 54.3). This provision, then, permits the court to order a slapp plaintiff to actually fund the defendant’s case, rather than wait- ing until the end of the litigation for an award of costs and/or damages to compensate the defendant for expenses. However, this again is a discretionary provision rather than a mandatory requirement, and it requires judges to overcome their historical tendency to be conservative in slapp cases. The Quebec legislation also allows for the court to “condemn” the parties that launched an improper proceeding, and it contains broad cost provisions, including orders to pay the defendant’s legal costs, extrajudi- cial costs, and punitive damages (Art. 54.4). Again, while this is discre-

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tionary, and while punitive damages are awarded only if justified by the circumstances, the legislation does allow for the “piercing of the corporate veil” and for courts to sanction and order costs and damages personally against the directors and officers of corporations that launch slapp suits. As Landry notes, this last provision appears to be unique to the Quebec legislation, and is largely absent from other anti-slapp laws. The business community actively objected to the provision in the debates surrounding Bill 9, but ultimately they were not successful in convincing the Minister of Justice to remove it (Landry 2010, 67). In its final form, the Quebec legislation undoubtedly strengthens the capacity of civil society groups to resist slapps; nevertheless, the legislation takes an overwhelmingly procedural approach and relies too heavily on the discretion of judges to identify and characterize litigation as improper. The wide-ranging procedural tools and possibilities for damage awards are contingent on the exercise of judicial discretion. In this regard, the legislation merely expands on the range of remedies that courts had at their disposal in the past, but which they frequently failed to utilize. The experience to date under the legislation would seem to bear out these concerns. slapp lawsuits continue in Quebec, and it appears that the existence of the law has not limited the willingness of corporations to file these sorts of cases (Lalonde 2011; Marron 2010). Even when the courts do characterize a lawsuit as a slapp under the terms of the legislation, cases continue to drag on and damage awards are rarely sufficient to fully compensate the defendants for their costs (Scholey 2011). As a result, the utility of the law in combatting the chill on public participation represented by slapps has been limited.

The Ontario Experience

The most recent Canadian initiative to respond to the problem of slapps was undertaken in Ontario. As with other cases examined above, the On- tario initiative arose from a combination of mobilization surrounding a particular slapp lawsuit and official recognition of the problem. In this instance, the slapp lawsuit followed opposition to a complex Ontario Mu- nicipal Board decision to approve a large hotel and condominium complex at Big Bay Point on Lake Simcoe. The project had been brought forward by Kimvar Enterprises, a division of Markham-based Geranium Corpora- tion, and had attracted considerable opposition and criticism from environmental groups and local residents.

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Ultimately, after a lengthy hearing, the omb approved the project. Continued opposition, however, prompted the developer to launch four separate lawsuits against opponents, claiming damages for approximately $90 million, and alleging defamation, interference with economic activities, and conspiracy (Wilson 2008). Once the omb had approved the project, the developer not only took the position that any further opposition was unjustified, but also sued for $3.2 million in legal fees from those who had opposed the case before the board, arguing that they had needlessly prolonged the hearing process at great expense (Environmen- tal Commissioner of Ontario 2009; Gray 2010; Smith and Page 2008). In addition, the developer sought legal fees from individual lawyers who had represented the opponents. This resulted in these lawyers having to withdraw from representing their clients in order to hire lawyers to represent themselves. Some local residents, who planned to testify against the project at the Ontario Municipal Board, changed their mind and refused on the basis that they were frightened by the prospect of being sued. Moreover, as evidence of the sort of chill this type of case creates, at least one other community group withdrew their opposition to a different development project in Simcoe County, stating that they feared being subjected to the sort of legal liability for costs that were being sought in the Big Bay Point case (Smith and Page 2008). In the end, while the omb ruled against Geranium Corporation’s motion for costs, it did not find that the developer had deliberately sought to prevent public debate, ruling that the motion was not brought for an “improper purpose” (En- vironmental Commissioner of Ontario 2009, 23–25). Nevertheless, the board did acknowledge that a cost award of this magnitude against the developer’s opponents would have a significant chilling effect on public discourse and engagement (Gray 2010). The problem of slapps within Ontario was highlighted when the On- tario Environment Commissioner, Gord Miller, in his 2008–9 annual report, called for legislation to protect against slapp lawsuits. In discussing the imbalance between opposing sides in development disputes, the commissioner reflected directly on the Big Bay Point Resort case. Miller had been called as a witness in the OMB case to provide testimony on the effect of cost awards for public involvement in future hearings of the board. In his report he stated:

The public’s right to participate in decision-making over matters of public interest is a cornerstone of our democratic system. Efforts aimed at suppressing

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this right should be discouraged by the Ontario Legislature and other public agencies. The eco sees a need for provincial legislation that would put both sides of development disputes on equal footing. Such legislation could serve to halt slapp suits in their tracks. It would also provide a means for the public to access financial and other resources in order to exercise their participatory rights in planning approvals and other contexts that have a significant bearing on the environment. (Environmental Commissioner of Ontario 2009, 24)

In June 2010, the Government of Ontario established a blue-ribbon panel chaired by Mayo Moran, dean of the University of Toronto law school, to investigate and make recommendations on the need for anti-slapp legislation. The panel also included Peter Downard, a partner in the law firm of Fasken Martineau, and Brian Macleod Rogers, a Toronto media lawyer. The panel examined the question of slapps in Ontario, reviewed the experience of other jurisdictions, and reported to the government in Oc- tober 2010 (Anti-slapp Advisory Panel 2010). It received written submissions from thirty-one groups and individuals, and heard eight oral pre- sentations. These included submissions from five environmental groups, five community associations, and four public interest groups. They ranged from organizations such as Greenpeace, Ecojustice, and the Canadian Environmental Law Association, to the Canadian Civil Liberties Associa- tion and the Public Interest Advocacy Centre. The panel also received submissions from three business associations, including the Building Industry and Land Development Association and the Ontario Land Use Council. Finally, the panel heard from the legal profession, and received submissions from both the Ontario Bar Association and the Ontario Trial Lawyers Association (Anti-slapp Advisory Panel 2010, 25–26). The vast majority of the submissions made to the panel (27 out of 31) supported the introduction of legislation to regulate slapps. As noted by the panel, many of those making submissions had, in fact, been sued for speaking out on issues of public interest. In addition to acknowledging the observations of the Environmental Commissioner of Ontario as evidence of the need for legislation, the panel also noted that some sixty-four On- tario municipalities had passed resolutions in favour of anti-slapp regulation. Finally, the panel remarked that the Lawyers’ Professional Indemnity Company, which provides errors and omissions insurance to legal practi- tioners, had recently informed Ontario lawyers engaged in public advocacy work that they might require additional liability insurance due to the increase in slapp litigation (Anti-slapp Advisory Panel 2010, 2; Wilkins

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and Nadarajah 2010, 9). This was a clear response to the fact that lawyers in the Big Bay Point development controversy had been sued directly. Given this evidence, the panel concluded that the introduction of legislation to limit the impact of slapp-type litigation on public participation and expression was warranted. A number of the submissions to the panel had argued for the creation of a right to public participation that would be protected by the new legislation. As discussed previously, many American laws directly reference the us constitutional right to petition. Since Canada has no direct equivalent, the argument was made that a substantive right should be created. This would also eliminate some of the problems of legislation such as in the Quebec model discussed above. The overly procedural nature of that legislation can result in difficulties, even though the law is clearly framed with the objective of protecting free speech and public participation. The panel rejected this approach, however, arguing that constitutional protection for freedom of expression, and the importance of constitutional values within civil litigation, provided an adequate framework to support a procedural remedy. The creation of a new substantive right, it concluded, was unnecessary (Anti-slapp Advi- sory Panel 2010, 7). Despite this particular conclusion, the panel’s proposals took a significant step beyond the Quebec model. In particular, it avoided employing the concept of an “improper case” as the touchstone for the legislation’s applicability. Instead, it recommended that the key concept in evaluating whether or not a lawsuit be stopped should be its effect, rather than its purpose. In this context, the value of public participation, and the need to dispose quickly and efficaciously with lawsuits that restrict it, were paramount considerations (Anti-slapp Advisory Panel 2010, 6). Indeed, they are critical elements in avoiding the financial impact of slapps on defendants. Although the panel did not recommend a new right of public participation, by specifically tying the threshold question of whether or not a lawsuit constituted a slapp to the effect of the litigation on public participation, rather than the intentions of the plaintiffs or the merits of their case, the panel effectively integrated the substantive right into a procedural approach. In order to achieve this goal, the panel suggested a number of measures be incorporated into a new anti-slapp law. First, an effective law should not be restricted, as are many American laws, to communications that involve petitioning government. Rather, the panel recommended a broad scope of protection, without distinguishing between public and private fo-

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rums of discussion and communication. It said that the scope of protected activity should be defined in terms of communication on a matter of public interest, regardless of whether that communication is directed toward government, corporations, or the public more broadly. In doing so, the panel felt that the full scope of legitimate participation in public matters would be made subject to the special procedures they recommended. The legislation, then, would be triggered where a lawsuit is likely to have an adverse effect on the ability of the defendant or others to participate in discussions of matters of public interest (Anti-slapp Advisory Panel 2010, 8). The panel’s recommendations placed the burden on the defendant to establish, on a balance of probabilities, that the subject of the lawsuit involved communication on a matter of public interest. A balance of probabilities does not require 100 percent certainty, but rather that it is more likely than not that something is the case. Once this is established, the onus shifts to the plaintiff to establish that his or her lawsuit should be permitted to proceed. In order to do this the plaintiff must establish that the claim has “substantial merit” and that there are substantial grounds to believe that the defendant has no valid defence. This is a vast improvement over the courts’ traditional approach, which privileges the plaintiff’s right to bring a case forward, without inquiry into either the likelihood the case will be successful, or what defences might be raised by the defendant. According to the panel’s recommendations, once a matter of public communication is at stake, only those cases that have a substantial likelihood of success should be allowed to proceed. Additionally, even if the plaintiff can establish these things, the panel further recommended that the court should balance the significance of the plaintiff’s injury against the importance of public communication and expression. To this end, the panel stated that where an action “seeks a remedy for only insignificant harm to reputation, business or personal interests,” it should be dismissed if allowing it to proceed would “have a clearly disproportionate impact on freedom of expression on a matter of public interest” (Anti-slapp Advisory Panel 2010, 10). As such, the recommendation specifically considers the impact of litigation on the defendant’s ability to engage in political activities and the chilling effect of slapps on public participation and engagement. The panel also recommended a series of innovations to the rules of civil procedure. These included an expedited hearing process, which would require a motion to be heard within sixty days; a moratorium on all further steps in the proceeding until the motion was decided; and a fast-track

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appeal process from the decision of the trial judge on the motion. If a suit failed to meet the test of legitimacy, the case would be dismissed immediately with full indemnity for costs incurred by the defendant. More- over, the recommendations included a provision that, should a case be dismissed, there would be a presumption that the pleadings could not subsequently be amended. In many cases, where a suit is dismissed for not disclosing a cause of action, it is open for the plaintiff to revise his or her pleadings and bring the case back to court. Allowing this to happen in slapp situations, however, would simply operate to undermine the intent of the legislation. As indicated above, the panel did not believe that the intentions and motives of the plaintiff were relevant to a determination of whether or not a lawsuit should be permitted. However, the panel did recommend that where the plaintiff had acted in bad faith or with improper motives, the court could award additional damages to the defendant. In other words, while establishing bad faith on the part of the plaintiff was not necessary for a lawsuit to be deemed a slapp, the existence of bad faith could be relevant to the determination of how much compensation the defendant might receive. In this way, the proposed legislation would add a further economic disincentive to plaintiffs filing slapp lawsuits. slapps often occur as the result of plaintiffs seeking government approval or permission for a development project. Licence renewals, building permits, and environmental approvals are often an integral part of the context in which slapp suits emerge. The Ontario panel recognized the interconnection of various administrative proceedings with slapp litigation. As a result, it recommended that where a plaintiff is engaged in an administrative or policy proceeding through which it is seeking permission to do something, and there is a connection between it and the defendant’s “expressive activity,” the administrative process should be suspended as soon as the defendant files a motion before the court (Anti-slapp Advisory Panel 2010, 12). The delay in the plaintiff’s other proceedings, the panel argued, would create a significant disincentive to slapp lawsuits. How- ever, it was recommended that this provision be discretionary, with the court having the power to lift a suspension if a plaintiff could demonstrate undue hardship. Given the sixty-day timeframe for deciding a slapp motion, the panel felt that very few cases would involve such hardship. This was an extremely innovative approach to reversing the economic incentives of slapp plaintiffs; it had the effect of linking slapp suits back to the political issues underpinning it.

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Although the Ontario panel’s recommendations went far beyond the Quebec approach to dealing with slapps—particularly through the creation of an expedited motion process and a threshold test that did not require a demonstration of impropriety—in some respects they were more limited than the Quebec reforms. In particular, unlike the Macdonald report, the Ontario panel did not make a recommendation on whether a public fund should be established to aid defendants of slapp lawsuits. While the panel found the idea attractive, it felt this was an issue that should best be left to the government to decide. It did not agree, however, that a defendant should be entitled to an advance order for costs so that the plaintiff would have to fund the defendant’s case on an ongoing basis. The panel appreciated the merits of this approach, but ultimately felt that the expedited processes it recommended, along with full indemnification, should be sufficient to deal with the issue of defendants having sufficient resources to carry the case forward. It needs to be kept in mind that the Quebec model did not provide for an expedited hearing process, and that consequently, the prospect of a defendant having to fund a potentially lengthy court case was still very much an issue. The Ontario Anti-slapp Advisory Panel, then, recommended a far- reaching and innovative approach to dealing with lawsuits that limit expression on matters of public importance. For some time, however, there seemed to be little indication that the Ontario government planned to take action on regulating slapps. In February 2012, the Ontario Bar Asso- ciation wrote to the attorney general, reiterating its support for the panel’s recommendations and urging the government to proceed with legislation (Saxe 2012). There might have been good reason to be pessimistic about the prospects for reform. Given the economic difficulties facing Ontario, it seemed unlikely the government would proceed with legislation that might anger development interests. Certainly, the policy climate in general had turned away from close regulation and scrutiny of development proposals, particularly in the environmental area. If one thing is true in politics, however, it is that circumstances can change quickly. The governing Liberals’ minority position and electoral vulnerability, combined with the resignation of Dalton McGuinty and the selection of Kathleen Wynne as premier, has resulted in policy shifts. Winn has proven much more willing to negotiate with the ndp on policy matters in order to secure the time the Liberals need to rebuild support. On 3 June 2013, a short time after the Liberals and ndp came to an agreement that would allow a budget to pass, the government introduced

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Bill 83, The Protection of Public Participation Act. This legislation essentially implements many of the advisory panel’s most significant proposals. It includes the panel’s recommendations on the need to encourage and promote expression and participation on matters of public interest and to discourage the use of litigation as a means of curtailing that participation. The bill defines expression broadly to include any communication, verbal or non-verbal, and regardless of whether it is made publicly or privately, or whether it is directed at a person or an entity. The proposed legislation also adopts the panel’s recommendations for an expedited hearing process, the need to shift the burden of justification to the plaintiff, as well as its recommendations regarding cost awards and damages. It also adds a provision that once a motion has been brought by a defendant to have a lawsuit dismissed as a slapp, the plaintiff cannot then seek to amend or alter their pleadings in order to avoid having the suit dismissed. This is a very important innovation as it clearly gives the court jurisdiction and authority to determine the slapp issue, and limits the capacity of slapp filers to try and circumvent that determination. Of course, it now remains to be seen what will happen to Bill 83. Its introduction is certainly welcome. The adoption of anti-slapp legislation in Ontario might very well provide the impetus for many other jurisdictions in Canada to follow suit; it would certainly give a boost to campaigns for the introduction of legislation across the country. The future of the legislation, however, will turn on the fortunes of the current Liberal administration. Indeed, the circumstances surrounding the introduction of Bill 83 are very reminiscent of those that led to the implementation of British Columbia’s short-lived anti-slapp measures. The current government is electorally vulnerable, trying to maintain its minority position long enough to rebuild after a leadership race and a number of scandals and issues that have eroded its popular support. But while the government is facing a strong challenge from the Conservatives under Tim Hudak, turning to the ndp for support in the legislature, and offering legislative initiatives to secure that support, is a sensible proposition. There is also clear support for anti-slapp measures within sectors of the Liberal party itself. The current Minister of Labour, Yasir Naqvi, had introduced a private member’s bill on the issue in October 2012. His legislation, however, died on the order paper when Dalton McGuinty prorogued the legislature. One must wonder, then, whether this legislation will suffer the same fate as its predecessor in British Columbia should the Liberals be defeated by the Conservatives in the next election.

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Conclusion

This overview of legislative initiatives demonstrates both the importance of progressive regulation to curtail the negative effects of slapps as well as the difficulty in implementing successful regulatory measures. The Ca- nadian experience certainly shows how difficult it can be to implement any reform, for despite initiatives in several provinces, only one jurisdiction currently has any legislative restrictions on slapps. Experience also shows that the scope and impact of legislation can vary considerably. In the United States, some regulations are extremely narrow and provide very limited protections. Others, such as California’s anti-slapp laws, are quite far reaching. In Canada, the Quebec legislation, despite many innovative measures, is overly procedural; it fails to create a right to participation, and it does not include any measure for an expedited resolution of the slapp issue. It also relies far too heavily on judicial discretion in the awarding of remedies. As a result, it fails to successfully embody the principles of anti- slapp legislation discussed at the beginning of the chapter. The anti-slapp proposals of the Ontario Advisory Panel provide an ex- ceptional blueprint for anti-slapp regulation, and it is certainly hearten- ing that they have now been incorporated into a concrete legislative proposal. Despite this, for the moment at least, it remains true that in most of the country there are no effective anti-slapp measures in place. Indeed, the likelihood of anti-slapp legislation being implemented on any sort of widespread basis appears relatively slim. The successful passage of the proposed Ontario legislation might change this assessment. Given the overall situation across Canada, however, it remains important for advocacy groups to understand the nature of slapps, and how they can empower themselves to respond to slapp litigation effectively. This is the subject that we examine in the next chapter.

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In Chapter 5, we examined various attempts to implement legislation to regulate slapp litigation and reduce its incidence. As we saw, while there have been many proposals for legislation, and considerable public demand, very few jurisdictions in Canada have successfully implemented regulatory frameworks. Given this, it is necessary to consider how individuals and social groups can respond to slapps and prepare for them. In conflicts over environmental issues and land-use decisions, slapps increasingly appear to be part of the arsenal of weapons brought to bear on citizens and development opponents. The chilling effect of this sort of litigation, while not to be underestimated, can be minimized if social movement organizations are able to plan and organize effectively to respond to slapps. Moreover, the response to a slapp, if framed correctly, can be managed in such a way as to provide an effective tool in a group’s overall political campaign. To the extent that slapps transform political disputes into legal disputes, the slapp target must find a way to work within the legal framework to reclaim and reassert the political dimension of the conflict. In other words, the dichotomous option of law versus politics must be resisted. The fact that alternatives to this option exist, however, should not be interpreted as a reason “not to worry” about the problem of slapps. Democracy and expression, as well as the legitimacy of judicial processes, are still endangered by lawsuits that are designed to block political participation.

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The Political Opportunities of a Lawsuit

Lawsuits are something that most people rarely encounter. This is one of main reasons slapps are so successful. Those who launch slapps often have far more experience of the legal system than the defendants. Liti- gation is, for these “repeat players,” part of doing business. While suing activists may be somewhat less common, their experience of the legal system means that they are quite comfortable in thinking about law as a strategic or tactical device. If one is comfortable suing a competitor for unfair practices, or a supplier for breach of contract, then suing activists over the disruption of business plans is a step that is easily taken. For the defendants, however, the receipt of a lawyer’s letter demanding a cessation of activities and threatening litigation, or the receipt of a statement of claim suing for millions of dollars, is quite another matter. Moreover, if an interim injunction has been issued, failure to comply can amount to contempt of court and be punishable by fines or imprisonment. The stakes in the political struggle are increased considerably, and become much more immediate and personal. Bankruptcy and potential imprisonment are suddenly possibilities that may never have been contemplated when one joined a citizens’ group. Of course, these are worst-case scenarios. The data indicates that the vast majority of slapps are dismissed. Worst-case scenarios, therefore, rarely come to pass. Even if the plaintiff is victorious, it is quite possible that the court will not award the full damages claimed. In Daishowa Inc. v. Friends of the Lubicon, the court ruled in favour of the company, but ordered one dollar in damages. In doing so, it sent a very clear message to the company regarding the court’s assessment of the overall merits of its case. Those that are subject to slapp litigation need to remember that the damage claim is designed to intimidate and to chill political expression. The likelihood of the court awarding those damages, therefore, may be quite slim. If one takes the question of damages out of the equation, the issue then becomes one of defending the lawsuit. While this can also be an expensive proposition, there are ways of thinking about the lawsuit that make it both less daunting financially and potentially more worthwhile politically. There is considerable literature on the subject of social groups using courts as part of their political strategy (McCann and Silverstein 1993; Sheldrick 2004); however, this literature tends to focus on those situations where the group initiates litigation. These cases are often brought

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to assert a rights-based claim, and they are usually against the state. Such litigation might seek to overturn a statutory provision or regulation, or to extend benefits to groups and individuals previously excluded. The slapp situation is somewhat different in that the social group is on the defensive. This changes the dynamics considerably, and thus it is worth considering some of the tactical and strategic possibilities that the litigation presents. McCann and Silverstein (1993) have argued that litigation in general provides a number of strategic opportunities to a social group. In particular, over and above the gains that might come from victory, it offers a number of significant possibilities for developing and advancing a political campaign. Litigation can play an important role in highlighting and publicizing grievances and issues. It can play a role in movement-building through leveraging resources and moving beyond the individual and the local levels. Finally, it can provide a vehicle for leveraging access to decision-makers (McCann and Silverstein 1993; Sheldrick 2004, 27). To the extent that many social movement organizations may operate outside of the mainstream of political life, and/or may be distinctly local and small- scale in nature, litigation can provide a vehicle (albeit an expensive one) to overcome some of these limits. Within the specific context of a slapp, many of these possibilities exist. The fact that the social group is on the defensive changes the dynamics, but not necessarily the possibilities (Ogle 2007). Obviously, winning the case takes on a higher priority in the slapp context, as failing to do so might very well prove disastrous for those involved. slapps, as discussed in Chapter 2, operate as a form of dispute transformation; they function to change a political dispute into a legal dispute, cloaking its political roots within the language of tort law. A strategic approach to defending the case offers the potential for reframing the case once again and re-emphasizing its political nature.

Defending the Case

A deliberate, purposeful approach to defending a slapp case provides several opportunities for reframing it. Moreover these can be nicely linked to broader objectives of movement-building and resource management. slapp litigation offers the potential to educate and highlight the grievances and issues that gave rise to the lawsuit. It also offers the possibility of highlighting the practices of the plaintiff. Once plaintiffs file their statements of claim, even if they are claiming defamation, the statements

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and issues that gave rise to the lawsuit are in the public domain. Similarly, the responses to those allegations, as set out in statements of defence also become a matter of public record. They can now be commented on, discussed, analyzed, and profiled in the media and in the broader public sphere. In this sense, slapp lawsuits can be a double-edged sword for plaintiffs. The stages of a lawsuit offer a number of opportunities for movement- building and for raising the profile of an issue. It is often the case that defendants consider litigation to be a closed system. While to a very great extent it is true that courts and legal processes have a logic and structure of their own, nevertheless it is important to consider how these processes can advance a group’s broader political interests. If the defendant is a local individual, the lawsuit provides an opportunity to connect with broader movements of individuals concerned about the same issue. It becomes a vehicle to leverage resources for the political struggle, in addition to mobilizing resources for the legal struggle. This is not to underestimate the difficulties of combining political and legal objectives. Nor is it to recommend that activists encourage or invite lawsuits by their actions. It is, however, to emphasize that, to the extent that slapps force activists into a defensive posture, there may be ways to reclaim a certain degree of initiative and control over the dispute.

The Lawyer’s Letter and Initial Pleadings

The first indication that a slapp might be forthcoming is a letter from the plaintiff’s lawyer. Such a letter often includes a broad allegation of how the defendant’s activities allegedly have injured the plaintiff, what remedy the plaintiff is seeking (both in the short term and long term), and an indication that if the defendant does not comply a lawsuit will be initiated. It is at this stage that defendants should consider their position carefully. Are they able to withstand a lawsuit? Have they actually committed defamation or some other tort? What are the odds of success or failure should there be a lawsuit? How much public support exists for their cause? It may be very important for defendants to secure legal advice at this point, so that a careful assessment of potential liability can be made. For social movement groups, obtaining legal advice may even be advisable long before litigation seems imminent.1 Consulting with counsel as one develops a political strategy can serve to insulate and protect a group from future slapp lawsuits. For example, designing pamphlets or promo-

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tions in ways that are more likely to avoid allegations of defamation, while not a guarantee that slapps will not be launched, certainly makes their defence easier. Being able to demonstrate to a judge that due diligence was pursued, and that every effort was made not to engage in defamatory practices, will be of great assistance. It is thus important to be relatively certain that one comes to the struggle from a position of strength. After all, if the goal of fighting the litigation is to build support, even where the broader political issue is a just one, the public may be unwilling to tolerate behaviour that it considers inappropriate or wrong. Structuring one’s activities to avoid, or at least minimize, the success of a slapp lawsuit, therefore, is prudent. Even after receiving a lawyer’s letter, it is important to assess whether changes in one’s activities should be implemented. One might not be willing to comply with all the demands of an initial lawyer’s letter, which may well involve a demand for a complete cessation of activities; however, if one can alter one’s strategies at that point so that potential future claims are minimized, then one can reasonably hope that further activism and expression will not be restricted. This may require a careful analysis of the allegations of wrongdoing, and a careful response. Legal assistance will likely be necessary to do this effectively.

Retaining a Lawyer

If an individual or group is going to effectively respond to a slapp suit, the first task is to seek legal representation (Pring and Canan 1996, 154–56). In general, while it is certainly possible to represent oneself, it is rarely advisable. The strength of a slapp lawsuit is in its capacity to tie the defendants up in legal manoeuvring, prolong the litigation, and drain resources. Representing oneself certainly will avoid the costs of a lawyer, but in the long run it may leave the defendant vulnerable. Effective ways to respond to the plaintiff’s claims might be missed, and motions that might be made to dismiss the case could be overlooked or ineffectively argued. Moreover, while it may be possible to combine the political and the legal in responding to the case, this needs to be done carefully. If a self-represented defendant simply pleads before the court that they were politically motivated, without actually responding to the tort claims, the court may simply choose to ignore the political dimension. Ideally, one needs a lawyer who can help reformulate and reframe the case. It requires an understanding of the limits of the tort law claims, but also the political issues that underpin the case.

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Given this, finding a lawyer is not necessarily as simple a task as one might hope. Public interest law is a highly specialized area of legal practice. Most lawyers do not engage in it. As a result, finding a lawyer to act in a slapp case is not simply a matter of going to the Yellow Pages. Rather, there are a number of factors that need to be considered. First and foremost, a defendant needs to think about the extent to which their goal is simply to win the case and end it as quickly as possible or to develop the case and integrate it with their political strategy, or some combination of the two. These questions will vary depending on the defendants and their capacity. An individual being sued may opt to deal with a case as expeditiously as possible. A social movement organization or an individual with ties to a broader network of community and activist groups may choose to approach the case differently. At the heart of “choosing a lawyer,” therefore, is resolving the question of how to conceptualize the case in political and legal terms (Sheldrick 2004, 100; Wilts 2002, 11). If slapps transform political disputes into legal issues, the question for defendants is whether to deal with the case as a legal issue, or as a political issue. Take, for example, the situation where a defendant is sued for defamation over his or her activities protesting a development project. In this situation, one might choose an expert in defamation law. However, that individual may know very little about environmental issues, environmental regulations, and/or public interest law generally. On the other hand, one could choose a member of the environmental bar, who would understand the broader political and legal context that gave rise to the defamation suit, but might know relatively little about defamation law. In an ideal world, one might have a team a lawyers including experts in both areas; however, such an approach could be prohibitively expensive. In general, if one wants to emphasize the political nature of the case, it is important to find a lawyer who understands and is sympathetic to thinking about law in these terms. This will likely mean preferring a public interest lawyer over a private law lawyer with a specialization in defamation or torts. Increasingly, lawyers with a specialization in environmental law or land-use law will have experience dealing with slapp situations. Specialized legal centres such as the Canadian Environmental Law As- socation, and Ecojustice, can sometimes provide advice and assistance.2 The Canadian Environmental Law Association (cela) is a specialty legal clinic funded in part through the Ontario legal aid system. Ecojustice is a national charitable organization funded by donations from supporters. It evolved out of the Sierra Legal Defence Fund and has offices in Vancouver,

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Calgary, Toronto, and Ottawa. Ecojustice offers free legal assistance to individuals and groups “on the front lines of the environmental movement.” In addition to providing advice and representation in litigation contexts, the group also engages in outreach campaigns, research and investigation, and the preparation of reports for government bodies and the public. It employs both lawyers and scientists, and has tremendous expertise in the legal, technical, and political aspects of environmental cases. Of course, one of the problems facing specialized legal centres is capacity. There are often insufficient resources to take on every case. Nevertheless, organizations such as this are extremely helpful in providing advice, guidance, and recommendations for lawyers who are both knowledgeable regarding and sympathetic to defending slapp cases. Earlier, the resource imbalance between plaintiffs and defendants was noted. This often makes it tempting to explore the possibility of retaining counsel from a “high-powered” law firm. Indeed, this is an excellent option if resources permit or if those services are provided on a pro bono basis. This means that the lawyer involved offers their services free of charge. In effect, they provide a donation of their time because they support your cause or feel the issues it raises are important. While some lawyers are prepared to engage in pro bono cases, overall they are likely a minority. Moreover, it must be kept in mind that when one retains a lawyer on a pro bono basis, that case will always take a back seat to fee paying clients. Moreover, if the case becomes lengthy or overly complicated, the cost of carrying the case forward for the law firm may become too great. The danger with any pro bono case is if the lawyer involved withdraws because it is consuming too much of their time. Unfortunately, this is often the situation when the need for legal representation is most critical. In choosing a lawyer it is important to seek advice and recommendations from others. Consult with other social groups or individuals that have been slapped. Communication with your lawyer is also vitally important. Discuss all the dimensions of your case. If your lawyer only wants to speak about the defamation element, for example, and considers other issues irrelevant, he or she may not be appropriate for defending a slapp. In an economic tort case, if the lawyer does not see the importance of the free expression issue one might want to rethink the choice. It is important to remember that the client is in control of the relationship with the lawyer, rather than vice versa. Ultimately, however, both lawyer and client need to be in agreement about how the defence should proceed. Therefore, it is important that clients be very clear about their expectations and what they

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hope to gain from a case, both in political and legal terms. Planning and strategizing must be something that is collectively undertaken by both the client and the legal representative. Of course, once one has retained a lawyer, the next issue is payment. Generally, legal aid in Canada is unavailable for civil cases. While organizations such as cela and Ecojustice may be able to assist, there is a very real likelihood that individuals or groups will have to find the resources to fund the litigation themselves. While securing resources for a potentially expensive legal fight may be one of the most daunting challenges facing a slapp defendant, it is also in this context that some of the most important movement-building opportunities are to be found. Litigation offers the possibility of raising the profile of a political dispute. Of course, in some instances, the issue may already have a high profile regionally or nation- ally. As our survey of slapp cases has illustrated, however, slapps often arise in local conflicts. Litigation offers the chance to engage local, provincial, and national media attention, and to reach out to a broader network of activists and social movement organizations. In part, doing so is critical in order to secure the resources necessary to wage the legal battle. This can involve traditional fundraising vehicles, including mass appeals, pro- motions for sale, concerts, etc. It can also involve the use of social media such as Twitter and Facebook to profile the case and reach a wider audi- ence, providing them with information and updates about the case, and an inexpensive and effective means to donate to the cause. Creating a legal defence fund can be time consuming, but it is also a critical step in movement building. This is precisely why broadening the base of those involved in the dispute can be so important. The logistics of the lawsuit, and the need to defend it, can contribute to the creation of a network of activists that goes far beyond the numbers initially involved in the controversy.

The Pleadings: Statements of Claim and Defence, and Counterclaims

The first stage in the actual litigation process is the filing of a statement of claim by the plaintiff. This sets out the plaintiff’s allegations and must disclose an actual cause of action. Within a fairly short time frame, the defendant must respond to the allegations with a statement of defence. This is an important stage in the litigation. The statement of claim and the statement of defence define the issues that will be considered by the judge. Careful analysis of the statement of claim is very important, as is

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ensuring that the statement of defence fully addresses the alleged causes of action. Although it is only the beginning of the process it is an important moment in the litigation and several strategic and tactical decisions need to be made by the defendants. It is at this stage that defendants may move to have the action dismissed for not disclosing a cause of action. The difficulty in securing this remedy in slapp cases has already been discussed at length. Nevertheless, it is an important tactical motion that should be made. In structuring the statement of defence, the target of the slapp must also decide whether or not to launch a countersuit. Countersuits provide an opportunity to turn the tables on the plaintiff, and re-assume the initiative. This kind of lawsuit, often called a “slapp-back” (Pring and Canan 1996, ch. 9), provides a vehicle to reassert the values of political expression and put the political issues at the heart of the litigation back in the forefront. At the very least, a countersuit makes it more difficult for the court to simply ignore the issues.3 One possible basis for a countersuit is the tort of abuse of process. This tort is sometimes used by slapp plaintiffs, particularly where activists have either sought recourse to the courts or other quasi-judicial regulatory forums to oppose development plans. However, it is often quite possible to make the argument that the slapp lawsuit is itself an abuse of judicial procedures. In order to make a claim of this sort it is necessary to demonstrate that the plaintiff instituted their lawsuit for a “collateral and improper purpose” (Pelletier 2008, para. 38). While it might seem self-evident, at least to the slapp defendant, that the plaintiff’s actions are abusive, this may be a difficult assertion to substantiate. Once again, in this context, the slapp defendant must confront the court’s general unwillingness to circumscribe access to judicial processes. The courts have been quite consistent in ruling that invoking judicial processes and launching a lawsuit with “bad intention” or for self-interested motives is insufficient to establish liability for this tort. In some instances, courts have said that the pursuit of meritless litigation does not establish an abuse of process unless there is some additional proof of malice (WestJet Airlines Ltd. v. Air Canada 2005). It is generally far from clear what will constitute an improper purpose. It is in this context that Charter values of free expression and political engagement may be brought to bear. While it is one thing for a court to say that a meritless case designed to frustrate a business competitor does not constitute an abuse of judicial process, it is somewhat different to say

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that a lawsuit deliberately oriented towards frustrating political engagement is not abusive. Nevertheless, the fact that slapp cases are couched in legitimate causes of action, and may even have some factual basis to support those claims, makes the abuse of process argument a difficult one. But if one understands the countersuit as a tactical step in placing political engagement and free expression before the courts, this strategy has much to commend it.

Discovery

Once the initial pleadings are finished, the next step in a civil lawsuit involves discovery. Discovery is a process by which each party sets out the evidentiary basis for his or her claim. Parties must file statements of all documentary material in their possession that is relevant to the litigation. Each of the opposing parties will then have an opportunity to examine those documents as part of the discovery process. The purpose of the discovery process is to put each party in a position to assess the strength of their opponent’s case. This helps to eliminate the possibility of “trial by surprise,” where one party holds back strong evidence and springs it on their opponent at trial. Additionally, the discovery process encourages the settlement of cases by ensuring full disclosure of relevant material in advance. Discovery is an important part of the trial process. It can also be time- consuming, and in the slapp context, it can provide plaintiffs with an opportunity to slow down the trial process and permit a degree of intimidation of the defendants. Much academic literature on slapps points to the discovery process as a significant tool in the plaintiff’s slapp arsenal (Pring and Canan 1996, 163–64 and 174–75). While this is definitely true, it is important to keep in mind that the discovery process can also work in the defendant’s interests, and particularly where they have filed a countersuit. Discovery is traditionally divided into two components: documentary disclosure and oral and witness disclosure (Campbell 2003, pt. 3). Docu- mentary disclosure is relatively straightforward. The parties must disclose every document related to matters that are in issue as part of the lawsuit. This is usually done through an affidavit listing all of the documents. While rules vary from jurisdiction to jurisdiction, in general the other side must be provided with an opportunity to inspect those documents.4 If a party fails to produce documents listed in their discovery affidavit, the

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court can order their production. Activists in litigation often have a difficult time gaining access to documents, scientific reports, and other material that might be in the possession of governments and corporations. The discovery process provides an opportunity to require disclosure of those items. If, for example, activists are sued for defamation as a result of allegations that a company’s products are unhealthy, then scientific reports in the company’s possession around the health impacts of its products would be relevant and would require disclosure through the discovery process. Such documents might otherwise be impossible to obtain. Several caveats must be made here. First, discovery cannot be used as a “fishing expedition.” Unless one knows a specific document exists, or has a reasonable basis for believing it exists, one has to accept what is included in the list. Second, the disclosure of documents is not the same as surrendering them. The plaintiff may only have to provide access to the documents and the opportunity to inspect them. Finally, documents that are privileged are not subject to disclosure. These documents will be listed in a party’s affidavit of documents, but with an indication that the party is refusing to disclose them and the reason why. The most important privilege in this regard is the solicitor–client privilege. Generally, any communications between a party and his or her lawyer are protected by the privilege and do not need to be disclosed. A related privilege is sometimes referred to as the “litigation privilege.” This privilege extends to communications with third parties that are made as part of the preparations for litigation. In terms of documents, the privilege applies to any documents prepared “in contemplation of litigation.” Some corporations will prepare documents well in advance of a case as part of their general strategy of avoiding or preparing for litigation, and thereafter will seek to claim the privilege to protect documents from disclosure. For slapp defendants, this is another reason why it is highly advisable to seek legal counsel early in the process, thereby gaining the maximum benefit of solicitor–client privilege for one’s own communications. The second stage in the discovery process is oral discovery. Oral discovery provides an opportunity for each party to question the other under oath. Questions may relate to any matter or issue that is raised by the litigation. Parties under discovery must answer to the best of their “knowledge, information and belief” (Rules of Civil Procedure (Ontario) 1990, Reg. 194, sec. 31.06). Any answer given during the discovery can be used at trial to impeach the credibility of a witness, should he or she subsequently testify under oath in a different fashion. The individuals

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who are subject to discovery include the opposing party in the case of an individual, and may include an officer, director, or employee in the case of a corporation (Rules of Civil Procedure (Ontario) 1990, Reg. 194, sec. 31.03). This provides an important opportunity for slapp defendants to place corporate plaintiffs in a position where they actually have to answer questions under oath. There may be no such opportunity at trial since defendants cannot control which witnesses a plaintiff will call. Even if the case does not proceed, this can be an important opportunity to gain information. And once again, it speaks to the possible importance of filing a countersuit, as this broadens the scope of the issues at play and thereby increases the scope of permissible questioning in discovery. Utilizing discovery processes in this sort of tactical fashion, however, is certainly not without its potential drawbacks. It is for good reason that much of the slapp literature identifies discovery as one of the stages of the litigation process that is most antithetical to defendants and most open to manipulation by plaintiffs to their own advantage. Discovery is a process that can bog down the trial process. Parties can refuse to disclose documents or refuse to answer questions at oral discovery. Where there is a refusal, the party conducting the discovery has a number of possible options, which include seeking to compel the opposing party to answer the question or disclose the document. This, however, means going to court and arguing a motion to require the objecting party to comply with discovery. It can result in costly delays because a motion needs to be scheduled, argued, and then decided. In many instances, motions are decided immediately, but in some instances the judge hearing the motion may decide to reserve judgment. All of this involves time and, more importantly, ap- pearances by counsel, which increases the overall costs of litigation. The process can be so fraught with difficulties and delay that some litigators argue it is hardly worth attempting to force a reluctant party to answer discovery questions. Rather, a consistent refusal to be cooperative on discovery may be so damaging to the credibility of a party that it is preferable to allow the refusals to stand on the record and proceed to trial (Davis and Hughes 2008). In any event, discovery does provide an opportunity to seek information and disclosure of documents. It also provides an important opportunity to test the limits of the plaintiff’s case and thereby to make an assessment as to whether proceeding to trial is worthwhile. It has the potential to be used tactically, but this is not without its pitfalls.

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Going to Trial

Many of us gain our impressions of courtroom processes from television. Unfortunately, this creates the impression that trials can be resolved in a relatively short period of time—fifteen minutes at the end of an hour drama—and that they usually involve a dramatic admission or concession by a party who is subjected to a particularly devastating cross-examination. Of course, nothing could be further from the truth. Trials are frequently long-drawn-out affairs, where witnesses are led through the presentation of evidence in a methodical and careful fashion by the lawyers for the two sides. Rarely is there a “knockout” punch. Civil trials are governed by a variety of rules that help to determine the outcome. The standard of proof that a party must reach is a “balance of probabilities.” The burden of proof, which determines who must prove what, usually rests on the plaintiff. This means that the judge (for juries are rarely used in civil cases in Canada) must decide that the facts alleged by the plaintiff are “more likely than not” to be true. Defamation cases, which comprise the largest proportion of slapp lawsuits are somewhat different, in that once the plaintiff has established, on a balance of probabilities, that the statements made by the defendant were defamatory (i.e., damaging to reputation), then the burden shifts to the defendant to establish that the words were either true or covered by some sort of privilege. In certain cases, particularly those involving environmental issues, health and safety matters, or product safety, expert evidence may play a crucial role. The utilization of expert evidence introduces a dynamic into the trial that often operates against the interests of slapp defendants, especially those with limited resources. For example, if one’s political campaign involves assertions that a developer’s plans will be harmful to the environment, then it is quite likely that the developer will hire expert scientific witnesses to argue in court that environmental concerns have been taken into account and that there are no, or only limited, environmental consequences. This is a critical point in a defamation case. In the face of expert testimony that there are no environmental issues, defendants will need to introduce their own experts to provide testimony to the contrary. Given that it is the defendant’s burden to demonstrate the truth of their allegations of environmental concern, failure to call experts will be disastrous to their chances of success. The problem, of course, is that experts are expensive. Plaintiffs, as repeat players in the litigation process and with ample resources, are able

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to retain numerous experts to provide support to their position. Defen- dants, by contrast, may not have the resources to hire any experts, relying on pro bono support from sympathetic academics and/or other members of the scientific community. This is well demonstrated in the Staniford case discussed in Chapter 3. The plaintiff in that case proposed to call a large number of experts. Staniford, on the other hand, had very few experts that he was in a position to call. Of course, at the end of the day it should be the quality of the testimony, rather than the number of experts testifying, that determines the outcome. However, judges are rarely well trained in understanding and assessing scientific evidence. As a result, it is often the case that the court will side with their understanding of the preponderance of scientific opinion. This also raises another difficulty. If the defendant’s political campaign is based on new scientific approaches, or scientific evidence that is not widely accepted within the mainstream scientific community, it will be far more difficult to muster the expert evidence necessary to convince the court (Sheldrick 1999). slapp defendants must appreciate that trials are lengthy and expensive procedures. In addition, they will most likely have to take the stand themselves, testify, and be subjected to cross-examination. They need to know that their testimony might be reported in the press, and that plaintiffs may raise issues from their past in order to try and discredit their testimony. The decision to take the slapp case forward must involve a careful assessment of these things and a willingness to be subjected to very close scrutiny.

Utilizing the Media

If a case goes to trial, this provides the most public and visible opportunity to profile the political issues that gave rise to the case before the press and other media. It is at this stage that one can mobilize the media, provide courthouse interviews and press conferences, and generally try to rally public opinion around the case (Wilts 2002, 18). One needs to be careful in pursuing this strategy. In general, it is dangerous to “compound” the allegations of defamation by repeating the statements before the media while the case is ongoing. Judges will generally take a dim view of this sort of behaviour. It is also the case that courts do not appreciate parties trying to argue their case before the media, rather than in the courtroom. Doing so in an overly aggressive fashion may lead to a finding of contempt of court. Canada’s courts are, in general, more conservative than American courts, where media scrums on the courthouse steps are more common

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and intense media coverage of judicial proceedings more widespread. This reinforces the need to be careful in choosing one’s lawyer in a slapp case. As indicated above, one wants a lawyer who is competent in the substantive area of law, but who is also skilled and experienced in the political aspects of the case. Dealing with the media is a skill that, in an ideal world, the slapp defendant’s lawyer possesses. Having the lawyer speak on the defendant’s behalf to the media provides some insulation from allegations of further tortious wrongdoing or contempt of court. The lawyer will be in a better position to judge where the line should be drawn, and to know the tolerance of the court with this sort of behaviour. The trial also provides an important opportunity for movement building. As already discussed, the development of a legal defence fund and strategizing around the defence can involve a variety of movement-building activities. Indeed, this is critical if one hopes to move past the litigation and maintain a focus on the political activities that gave rise to the lawsuit. Many of these activities will take place before the actual trial, but the trial also provides an opportunity to continue them. Members of a broader network can engage in courthouse blogs and Twitter reports on the trial, and generally use social media as a way of reporting on the proceedings in real time. If the movement around the issue has been successfully established, there may even be the potential for it to continue independent of the defendant. This is the best way to provide coverage of the trial, and information for the media, as the defendant is insulated from any allegations regarding inappropriate dealings outside the courthouse. Even mainstream media outlets are now very much in tune with Twitter and other social media as sources of information and opinion about news events. Developing the capacity for a movement to exploit these forms of communication and dissemination provides a critical tool for transforming the trial from merely a “courthouse event” into a broader vehicle for political mobilization and issue framing. In many respects, however, it is the legacy of a legal struggle that may prove to be most significant (McCann and Silverstein 1993, 139). The legal struggle provides an important opportunity to highlight the political injustices that may underpin a case. The highlighting and framing of issues can supply the impetus for reshaping public opinion, and for pushing decision- makers, both inside and outside the state. The fact that the litigation itself is a tactical device to block public participation is a powerful commentary on the underlying power relations and inequities revealed in slapp litigation. As such, the litigation presents a potentially significant opportunity to

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continue to highlight injustices. It becomes part of the frame in which the original issues are communicated and revealed. In Chapter 5, we discussed efforts to implement anti-slapp legislation. The success of such efforts in Quebec depended very much on a broad and focused public campaign, and the building of a movement pressing for legislative change in the area. Often, the movements that emerge out of slapp cases become oriented towards the phenomenon of slapps themselves, but there is no reason why these cases cannot also operate in a way that supports movement building around the specific environmental and planning issues that gave rise to the litigation. The difficulty, however, is in broadening the scope of the issues at play in the litigation, and not getting bogged down in the myriad details of actually defending a lawsuit. Of course, this is easier said than done, and it is frequently the case that the litigation becomes an all-consuming enterprise. It is precisely for this reason that building broad coalitions to support the litigation is important as a mechanism for ensuring that the lawsuit does not silence underlying political issues.

Conclusion: Assessing the Opportunities for Resistance

The filing of a slapp lawsuit, as we have demonstrated, is a particular type of strategy within a political dispute. It is a tool that slapp plaintiffs have at their disposal to resist and confront political activists. It is particularly problematic in that it operates to block and constrain public participation, rather than engaging with public concerns. In this chapter, we have attempted to examine how defendants can utilize the forum of a lawsuit in order to continue to be politically engaged, while at the same time defending themselves. This involves a two-pronged strategy. On the one hand, it is important to prevent the lawsuit from shutting down political participation and engagement. Developing broader networks of support and continuing to press on the political front are extremely important. The vulnerability of slapp defendants to litigation often rests in their lack of resources and their relative isolation. This is particularly true where the defendants are individuals or small-scale community organizations. Con- sequently, the second element of the strategy is to broaden the political context and form a network of supporters. This helps decrease the defendants’ isolation and vulnerability. The high-profile nature of many slapp cases can assist in developing broader networks of support. It is not easy, however, to develop a strategy that can successfully strad- dle the legal and political realms. The reality of lawsuits dictates that deci-

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sions must be made that respond to immediate substantive and procedural legal matters. Necessarily, this involves surrendering a certain amount of control over one’s time and direction to legal counsel. No matter how sensitive a lawyer might be to the underpinning political elements of the case, at the end of the day they need to provide sound advice with respect to the management of the lawsuit. Again, organizations with institutional resources, or broad networks of support, are better able to balance these conflicting demands. slapp defendants who can shift carriage of the political struggle to other individuals or groups will be better able to face the complexities of the litigation. At the end of the day, however, every slapp defendant must assess the degree to which he or she can withstand the difficulties of defending a lawsuit. Settling a case early, while appearing like capitulation, may be in the best interests of both the individuals and groups involved. Again, it is important not to underestimate the importance of legal counsel, even in negotiating the settlement of a slapp case. Ensuring that the settlement does not restrict future political engagement is vitally important. It is also important to remember that judicial rules of civil procedure can serve the defendant even in settlement negotiations. Many jurisdictions in Canada have rules that punish parties that reject reasonable settlement offers. Plaintiffs in slapp cases often insist on “gag orders” as part of a settlement, which would have the effect of unduly constraining the defendant’s future freedom of expression. The defendant might reject such a settlement, but propose instead an alternative basis for settling the claim. Should this be rejected by the plaintiff, and the plaintiff in the end loses the case, or wins but receives a damage award that is less that the rejected settlement, the plaintiff could be penalized by the court in terms of its awards of costs. In some cases, the plaintiff’s behaviour in settlement negotiations could provide the basis for a special order of costs in favour of the defendant. As- sessing these possibilities is difficult, however, and legal advice is critical. In the final analysis, while slapp litigation may provide important political opportunities for the defendant, the latter are not without costs. The financial toll, even if a legal defence fund can be established and sympathetic lawyers retained, will likely be substantial. In general, it is always preferable to avoid the costs of litigation in favour of ongoing political expression and action. It is for this reason that the regulation and limitation of slapps is so very critical to fostering and protecting political debate and engagement.

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The phenomenon of slapps as a feature of our political system fundamen- tally challenges many of our assumptions regarding the nature of political participation and the operation of the legal system. In the first place, we often think of political activism and political expression as defined by the institutions of our political system. Political expression takes place through parties, interest groups, and electoral politics. We also assume that there are few restrictions on political expression and that those limitations that do exist can be relatively easily justified. Hate speech, racist speech, violent forms of expression, all go beyond the legitimate sphere of protected political speech. Of course, ideas about where the line between permissible and impermissible speech should be drawn are hotly contested. Nevertheless, we tend to assume that commenting on public issues, protesting, demonstrating, lobbying government, and criticizing public officials are all permissible, subject to some of the above restrictions. Limitations on those forms of speech, while rare, should generally be established in law—in other words, through legislation duly debated and enacted by democratically elected representatives. Using violence to make a political point, for example, violates the criminal code. A protest demonstration is different than a riot. Hate-mongering, while arguably politically motivated, breaches statutory provisions and is considered criminal behaviour. While one has every right to protest the fur industry, smashing storefront win- dows or spray-painting fur coats is impermissible.

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slapps, however, establish a different sort of limitation on political expression. With these, courts are asked to restrict politically expressive activity on the basis it has somehow harmed another individual’s or group’s economic or personal rights. The law of torts, which generally underpins slapp cases, is a branch of law that is almost entirely judge-made. It has developed over time through the judicial resolution of disputes. The adap- tive element of the common law is one of its great virtues; it can evolve in order to meet changing social conditions. With respect to political participation, however, this can be dangerous. Effectively, in the case of slapps, the law of torts has been used to shift attention away from the political context of disputes and recast them as legal issues. The use of the language of civil law, whether framed as defamation or the interruption of contractual relations, effectively places the judicial process at the heart of an attempt to limit and curtail political expression. In this context the courts, which usually perform the task of protecting freedom of expression, become an agency of the state operating to limit expression. Of course, judges and courts do not do this intentionally. Rather, the doctrines and principles of the common law operate to place the courts in this position. The rule of law protects access to the judicial branch. More- over, the adversarial process posits courts as neutral arbiters of disputes between parties with relatively equal capacity to advance their interests. The motives that underpin a lawsuit are rarely considered to be a relevant factor in determining whether a lawsuit should be permitted to proceed. While the courts have long had mechanisms and tools for preventing abuses of the judicial process, they overwhelmingly prefer to judge the merits of a case only after both parties have been able to present evidence and a full hearing of the matter has been held. As a result, courts have been particularly bad at policing slapp litigation. Rules of civil procedure dealing with frivolous or vexatious litigation, for example, establish standards for the dismissal of a lawsuit that are very difficult to meet. Similarly, the rules for judging whether a case should be dismissed for failing to disclose a cause of action proceeds on the basis that all of the facts alleged by the plaintiff are true, thereby making it extremely difficult to have a slapp suit dismissed on this basis. Only a very poor lawyer would draft pleadings that failed to meet this basic standard. Defamation laws are particularly well suited to slapps because they shift the burden of proof onto the defendants, who must then establish the truth of their words. Essentially, once it is established that the words were in fact uttered, it is largely irrelevant that they caused no “real” injury,

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and the broader political context in which the statements were made is not considered to any great extent. Recent developments in the law of defamation have created a defence of responsible communication. This offers greater possibilities for slapp defendants to win a trial. However, this does little to eliminate the constraints on participation and expression that slapp lawsuits create. The broader political context of these cases, of course, is that they generally involve efforts by the defendant to engage in political expression on matters of public importance. That expression almost invariably involves criticism of the plaintiff’s activities or business practices. Sometimes the issues are very local, but they may also have broader provincial or national significance. As a result, the insertion of a judicial procedure into this political context has serious democratic implications. It is, however, somewhat perplexing that slapps have been given so little attention within the Canadian academic setting. The enactment of the Charter of Rights and Freedoms in 1982 prompted intense scrutiny of the democratic implications of judicial review. This involved not only criticism of the appointed and unaccountable nature of courts as institutions, but also questions about the legitimacy and capacity of judges to make decisions on important issues of public policy. At the heart of these scholarly arguments was a preference for democratic politics, rather than judicialized politics. slapps highlight the problem raised by scholars about the Charter in a stark fashion. However, they do so in a way that interrogates and problematizes private exercises of power, rather than public exercises of power. When social movement organizations go to court to challenge the constitutionality of legislation, the public dimension of the issue is clear. It is the government and government policy that is being confronted. In this context, those that warn against the undemocratic nature of judicial review argue that the legitimacy of government policy should be debated and discussed within institutions that are subject to democratic mechanisms of public accountability. slapp lawsuits, by contrast, often involve instances of political mobilization and expression that occur within civil society. The state, therefore, is frequently not involved in the initial political dispute. However, it often is the case that the state is involved indirectly. Frequently this occurs because the defendants have filed complaints against the plaintiff, or have appeared before state agencies and regulatory boards to testify about the dealings of the plaintiff. In other instances, however, the defendants may simply be trying to publicize and draw attention to an issue of importance

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with the hope of mobilizing a greater segment of the public around the issue. Of course, these actions will have consequences for the plaintiff. The slapp lawsuit, however, transforms the public dimensions of the case into issues of private power and private interest. It is important, then, to pay attention to the implications of strategic litigation on political expression, and to assess this type of litigation within a framework that goes beyond thinking of such developments as simply part and parcel of the operation of the legal system. Of course, ensuring individuals and groups have access to the courts is important, but it is necessary to distinguish between those cases that are legitimate and those that are a veiled attempt to avoid political accountability or to silence political critics. In this regard, Galanter’s understanding of the resource differences between parties to public interest litigation is particularly sa- lient. Individuals suing individuals will rarely have major implications for the quality of democratic practice. Such lawsuits are frequently private in nature. Nevertheless, it is important to look at the representational aspect of litigation. Is the individual truly suing as an individual, or as a representative of a corporate interest? Is the defendant being sued because of their individual actions, or because they were participating in a collective political exercise? In general, where the defendants of slapps are members of collective groups, there is greater cause for concern over the democratic implications of the litigation. There is much discussion in Canada, and elsewhere, of the democratic deficit; the notion that people are increasingly apathetic and uninterested in politics. If participation in collective exercises of political expression can put individuals at personal and financial risk, the willingness of people to get involved and actively participate in their communities will be even further diminished. The chilling effect of slapps, then, is a significant anti-democratic phenomenon. The resource differential between slapp plaintiffs and slapp defendants is a critical factor that permits this litigation to both proceed and be effective. It also explains, at least to a certain extent, why courts have generally been unable to effectively deal with slapps, despite having many tools at their disposal. The effectiveness of slapps at blocking political expression is directly tied to the willingness of plaintiffs to forge ahead with these cases, despite knowing that they likely will not succeed. The fact that they are largely groundless means that success for plaintiffs is difficult to obtain. The vast majority of slapp cases that go to trial are won by defendants. The resource differential between plaintiffs and defendants,

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as well as the political context of the litigation, turns the usual economics of lawsuits on their head. The adversarial process proceeds on the assumption that both parties are rational actors and that the costs and benefits of a lawsuit are contained within the four corners of the suit itself. Externalities—costs or benefits that may exist outside of the lawsuit—are generally assumed not to exist. The decision to proceed with litigation, therefore, is based on a rational assessment of the likelihood of success and the potential damages that might be obtained. If the costs of litigation are greater than the damages suffered, a rational actor would not proceed. Similarly, if the damages might be great, but the likelihood of success is very low, again a rational actor might not proceed. However, in this instance, some plaintiffs might judge it to be worth proceeding as long as they have the resources to hedge against a possible defeat. In a slapp case, however, both the chances of victory and the likely damages are frequently quite low. Damage claims in slapps are often highly inflated (as part of a strategy of intimidation) and very unrealis- tic. The actual damage award likely to be granted is considerably smaller than the amount claimed. Where both chances of success and damages likely to be awarded are low, rationally one would expect few cases to be brought. In slapp litigation, however, it is the externalities of the case and the resource differential between plaintiffs and defendants that make the litigation both rational and attractive. For the plaintiff, it is the broader political context that makes the litigation important and worthwhile. The impact of a defendant’s political activities on the plaintiff, expressed in terms of lost business opportunities, development delays, or the costs involved in a major environmental hearing or cleanup, is potentially far greater than the costs of a lawsuit. A defamation case, while likely to produce a small amount of damages, or to be completely unsuccessful, is a relatively small expense for many slapp plaintiffs. The courts depend on plaintiffs acting rationally in terms of the procedures associated with civil litigation. Even cost awards, designed to punish those that turn down reasonable settlement offers or unduly delay cases, assume a rational party for whom such awards will operate as a deterrent. When these considerations are irrelevant to the party’s overall interests and plans, however, judicial techniques for policing their own processes fail to operate effectively. Judicial remedies are rarely able to reverse the economic logic that makes slapps attractive as a strategy to block political opposition.

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In some respects this is not surprising. Judges and lawyers are trained to separate legal issues from broader political contexts. Feminist and critical legal studies scholars have long argued that legal education is oriented towards extracting facts from context and obscuring, or at least dimin- ishing, the importance of the underlying political nature of cases.1 Legal training leads to a focus on the narrow range of facts that give rise to legal issues, rather than thinking about the broader policy and/or political aspects of cases. A consideration of human rights concepts, such as the freedom of expression protections of the Charter of Rights and Freedoms, forces a broadening of the court’s focus beyond immediate facts to the wider implications of the dispute. However, as discussed, the application of Charter provisions to the common law has been problematic at best. If courts have generally been unable to police their own procedure to deal adequately with slapp litigation, and if common law remedies have also proven to be inadequate, then legislation to deal with the problem is necessary. Ideally, that legislation must provide a quick and efficient mechanism that permits courts to decide which cases should be classed as slapps and which cases are legitimate lawsuits that should be allowed to go forward. Only through an expedited process, in combination with financial deterrents (costs and damages), can the economic incentives that underpin slapp litigation be overcome. The Quebec legislation, despite many progressive features, clearly demonstrates the limitations of legislation that does not provide for an expedited decision-making process. Despite the need for legislation, enacting anti-slapp legislation has proved extremely difficult. Only British Columbia and Quebec have successfully enacted anti-slapp regulations. The legislation in British Co- lumbia, however, was quickly repealed after the defeat of the ndp and the realignment of political forces that had led to the successful enactment of the legislation. In Quebec, the legislation has proved relatively limited in its scope and has not deterred slapp litigation to any great extent. Despite discussions of the need to enact anti-slapp legislation in other parts of the country, only in Ontario is legislation currently under consideration. One of the difficulties in successfully securing legislation in this area relates to the nature of the political communities that coalesce around it. As evidenced by the Quebec case, a sympathetic government, in combination with support from the legal community and a grassroots movement within the broader community, is necessary. slapps, however, are rarely focused on one particular substantive area of public policy. Rather, they can be launched around environmental issues, product safety concerns,

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land-use concerns, development issues, and a host of other problems and grievances. Consequently, there is no pre-existing constituency to press for government action. In those instances where legislation has been enacted, there has often been a very significant public case that has permitted the mobilization of a broader community of support. In the absence of that, however, slapps remain largely a concern of a relatively small group of activists and legal professionals. As such, there is rarely the movement strength or long-term organizational coherence to maintain sustained pressure on the government. Since lawsuits are directed towards specific, often local issues, movements are frequently divided. As a result, organizing around slapps as a concept is extremely difficult. It points to the importance, as discussed in Chapter 6, of activists organizing and forming coalitions of support when confronted by a slapp. The likelihood of slapp legislation being enacted in other jurisdictions in Canada is quite low. The introduction of legislation in Ontario may reflect the very specific political context of that province. In general, however, the economic decline since 2007 has meant that most governments are more firmly entrenched within a neo-liberal policy framework than ever before. The poor economic climate in Canada has produced austerity measures across the country. In this context anti-slapp legislation is very doubtful. Corporate and business interests have a predominant voice in policy circles during periods of economic crisis, and traditionally these groups are extremely opposed to any restrictions on their ability to access the courts. If anything, the current policy climate, particularly at the federal level, may encourage more slapps to be filed. The federal government’s 2012 budget was widely criticized by environ- mentalists and activists as one of the most hostile government measures in recent memory (Sierra Club 2012). In particular, the budget rolled back or eliminated many long-standing environmental legal protections. The need for environmental reviews of major industrial projects such as mines and oil pipelines were to be streamlined in the name of efficiency. The government also made it clear in a variety of ministerial statements that activism on environmental matters was generally unwelcome. In this context, the opportunity for activists to petition government and have a voice in regulatory processes has been narrowed and constrained. This results in a situation where activists will be forced to engage in other forms of direct political action and expression. These are the sorts of situations that give rise to slapp litigation. Moreover, given the government’s open hostility to social movement organizations, particularly in the environmental area, it

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is quite likely that one can expect many corporations to view slapp lawsuits as an increasingly attractive strategy. slapps, then, represent a very clear legalization of political life. They constitute a strategy of utilizing judicial processes to sideline political activism and block political expression. The targets of these lawsuits are often activists, but often they are also ordinary citizens who have been adversely affected by the exercise of political and economic power. The chilling effect of these lawsuits is difficult to assess, but it certainly cannot be discounted or ignored. Moreover, increasingly, there is evidence that slapp-type litigation has moved beyond what might be termed “private matters,” where both parties operate within civil society, to conflicts that take place within our institutions of democratic practice and accountability. In this context, slapps present an even clearer threat to standards of democratic participation and political expression. Certainly, due process, the rule of law, and access to justice are also important values of our democratic system. However, when judicial processes can be distorted and abused, in order for one party to constrain and silence the political expression of another, the values of access to justice have been ill served. For this reason, anti-slapp legislation is needed throughout Canada. The success or failure of governments to implement regulations will be a test of the quality of our democracy.

Sheldrick_Final_Proofs2.indb 148 14-01-29 12:28 PM Appendix: Legal Resources

General Legal Research Tools

Canadian Legal Information Institute: http://www.canlii.ca Clicklaw: http://www.clicklaw.bc.ca FindLaw (us): http://www.findlaw.com HeinOnline (requires subscription, but may be available through public or university library databases): http://www.heinonline.org Jurist Canada: http://jurist.law.utoronto.ca Legal Information Institute (us): http://www.law.cornell.edu Virtual Law Library (us): http://vlib.org/Law

Public Interest Law Centres

British Columbia Public Interest Advocacy Centre: http://bcpiac.com Manitoba Public Interest Law Centre: 610 – 294 Portage Avenue, Win- nipeg, Manitoba Ontario Community Legal Clinics: http://www.legalaid.on.ca/en/contact/ contact.asp?type=cl Public Interest Advocacy Centre: http://www.piac.ca/index.html

Public Legal Education

Community Legal Education Ontario: http://www.cleo.on.ca

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Law Central Alberta: http://www.acjnet.org/LawCentralAlberta/default .aspx People’s Law School: http://www.publiclegaled.bc.ca

Anti-slapp Resources

Canada Canadian Environmental Law Association: http://www.cela.ca Ecojustice: http://www.ecojustice.ca

United States

Anti-slapp Resource Center: http://www.thefirstamendment.org/ antislappresourcecenter.html California Anti-slapp Project: http://www.casp.net Public Participation Project: http://www.anti-slapp.org

Australia National Pro Bono Resource Centre: http://www.nationalprobono.org.au/ home.asp New South West Public Interest Law Clearing House: http://www .pilchnsw.org.au Public Interest Law Clearing House: http://www.pilch.org.au/ accesstojustice/publicinterestlitigation

Other Resources

American Civil Liberties Union: http://www.aclu.org Canadian Civil Liberties Association: http://ccla.org Pro Bono Law Ontario: http://www.pblo.org Pro Bono Students Canada: http://www.probonostudents.ca

Sheldrick_Final_Proofs2.indb 150 14-01-29 12:28 PM Notes

Notes to Chapter 1

1 See, for example, Baker (2010). 2 See Manfredi and Kelly (2009). 3 On issues of justiciability, see Sossin (1999). For an overview of standing rules in Canada, see Sheldrick (2004, ch. 5).

Notes to Chapter 2

1 See also the California Anti-slapp Project: http://www.casp.net. 2 For more details on the case, see http://www.mcspotlight.org.

Notes to Chapter 3

1 Subsequently, the Supreme Court of Canada significantly revised the law of defamation and provided an expanded defence of responsible communication in the case of Grant v. Torstar Corporation (2009), which is discussed in more detail in Chapter 4. As a result of that decision, it is questionable whether the Barrick case would have been successful had it gone to trial. However, the case demonstrates that, despite the state of the law on the main substantive issues raised in the statement of claim, it is still possible for plaintiffs to achieve their objectives. 2 See Tollefson (1996) for an excellent history of the case. 3 See Lott (2004, 36).

Sheldrick_Final_Proofs2.indb 151 14-01-29 12:28 PM 152 Notes

Notes to Chapter 4

1 See Loveland (2000) for a historical analysis of political libels and parliamentary privilege. 2 For very different accounts of the scandal, see Kaplan (1999) and Cameron (1995).

Notes to Chapter 5

1 Since addressing defamation in Australia is a state responsibility, the reform was the product of a uniform series of legislative amendments that were agreed to and implemented by all states. See Defamation Act 2005 (qld); Defama- tion Act 2005 (Vic.); Defamation Act 2005 (nsw); Defamation Act 2005 (Tas.); Defamation Act 2005 (sa); Defamation Act 2005 (wa). 2 See Wash. Rev. Code tit. 4. Sections 4.24.500–4.24.520 (1989); ny cls ny Civil Practice Laws and Rules, Section 3211(g) and 3212(h); Cal. Civ. Proc. Code tit. 6, sections 425.16, 425.17, and 145.18 (Cal. Code Civ. Proc.). 3 See Scott and Tollefson (2010) on bc, and Landry (2010) on Quebec, for excellent historical overviews. 4 See sbc [2001] ch. 19. This act was repealed by the Miscellaneous Statutes Amendment Act of 2001—sbc [2001] ch. 32, sec. 28. 5 See Landry (2010, 65ff.) for a fuller discussion of the provisions of the law.

Notes to Chapter 6

1 See Pring and Canan (1996, ch. 8) on managing a slapp lawsuit before the litigation happens. 2 See Appendix for a fuller list of resources. 3 See also Merriam and Benson (1993). 4 For a comparison of discovery rules in Canada, see Campbell (2003, pt. 3).

Note to Chapter 7

1 See, for example, Unger (1989) and Smart (1989).

Sheldrick_Final_Proofs2.indb 152 14-01-29 12:28 PM Works Cited

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Scory v. Krannitz, DeWitte, and the Glen Valley Watershed Society (2011), bcsc 1344 (Canlii). WestJet Airlines Ltd. v. Air Canada, [2005] oj No. 2310.

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Tables indicated by italics. Banro, 48, 49, 50 Barrick Gold, 48–49, 151n1 Abadie, Delphine. See Les Éditions Bass, Sam, 78–79 Ecosociété Bellamare, Marc, 76, 79–83 abuse of process, 16–17, 131–32 Bell v. Mazza (1983), 24 Act to Amend the Code of Civil Pro- Belmont Equities. See City of Guelph cedure to Prevent Improper Use of v. Hanlon Creek Protesters the Courts and Promote Freedom Big Bay Point case, 113–14 of Expression and Citizen Partici- Bilcon, 104 pation in Public Debate, An (Bill Bill 9 (An Act to Amend the Code 9), 110–13 of Civil Procedure to Prevent aim (American Iron and Metal), Improper Use of the Courts and 108–9 Promote Freedom of Expression Airbus scandal, 69–71 and Citizen Participation in Public American Iron and Metal (aim), Debate), 110–13 108–9 Bill 10 (Protection of Public Partici- American Taxpayers Alliance, 79 pation Act), 106–7 Anti-slapp Advisory Panel, 115–19, Bill 29 (Protection of Public Partici- 121 pation Act), 106 Association Québécoise de lutte Bill 83 (The Protection of Public contre la pollution atmosphérique Participation Act), 119–20 (aqlpa), 108–9 Bill 99, 110 Australia, reform of defamation laws, Bill of Rights (us), 8, 27. See also 98–99, 152n1 petition, right to Black, Nathan, 53

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Bowbrick, Graeme, 106 Clayoquot Sound, 44 British Columbia, attempted regula- Comité de restauration de la Rivière tion of slapps, 8, 105–7, 146 Etchemin (crre), 108–9 Committee for Public Participation Cadman, Chuck, 72 (cpp), 105, 106 Cadman, Dona, 72 common law, 7, 15, 59–60, 142 Cadman affair, 36, 71–76, 86 communication. See responsible California, regulation of slapps, 99, communication 101–3, 121 Community Air, 45 Campbell, Gordon, 107 Conservative Party of Canada. See Canada: emergence of slapps in, 40; Cadman affair; robo-call scandal lack of comprehensive judicial Constitution Act (1982), 59. See also recording system, 40; limited Canadian Charter of Rights and attention to slapps in, 2–3; media Freedoms (1982) in courts in, 136; regulation of corporations. See organizations, as slapps in, 90, 103, 121, 146–47; both plaintiffs and defendants right to petition vs. US context, Cosentino, Victor, 28, 90 12, 28; “right to reply” in, 84. See cost awards, 96–97, 114–15, 120, also British Columbia; Canadian 145. See also damages, monetary Charter of Rights and Freedoms countersuits, 131–32, 134. See also (1982); government, Canadian; slapp-backs New Brunswick; Nova Scotia; courts: on abuse of process, 131; Ontario; Quebec common law vs. Charter, 59–60; Canadian Charter of Rights and existing procedural remedies to Freedoms (1982), 3, 7–8, 12, 28, slapps, 93–96; existing substan- 58, 59–60, 143 tive remedies to slapps, 96–99; in Canadian Environmental Law As- favour of democratic participation, sociation, 128 55–56; less tolerance for slapps, Canan, Penelope, 12, 27 8; ligitimacy of decisions on state Carmanah Forestry Society, 44 policy, 3–4; and media, 136–37; cause of action: and dismissal of case, regulation of slapps, 142–43, 94–95, 142; for slapps, 13–15, 145–46; role in permitting slapps, 98–99; slapps lacking, 92; in 53; role in public interest issues, statement of claim, 130–31. See 7. See also Supreme Court of also defamation; exploitation of Canada personality; invasion of privacy; cpp (Committee for Public Participa- nuisance; trespass tion), 105, 106 Charest, Jean, 36, 76, 79–83 Creemore Area Residents’ Associa- Chee Soon Juan, 77 tion, 48 City of Guelph v. Hanlon Creek Pro- Crispo, John, 48 testers, 1, 51 crre (Comité de restauration de la Clark, Glen, 106 Rivière Etchemin), 108–9

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Daishowa v. Friends of the Lubicon Charter of Rights and Freedoms, (1998), 1, 18, 56–58, 61–62, 124 28, 58–59, 146; and gag orders, damages, monetary, 19, 21, 124, 145. 139; in parliamentary democ- See also cost awards racies, 63–64, 65; sub judice Davis, Gray, 79 convention, 75; violated by slapps, Dawson, Mary, 70–71 2, 79, 142. See also parliamentary defamation: Australian laws about, privilege 98–99, 152n1; burden of proof Friends of the Lubicon. See Daishowa in, 135; Canadian law revised, v. Friends of the Lubicon (1998) 151n1; and damages, 21; difficulty dismissing cases, 94, 95; gag orders, 139 and media, 34; in politics, 36, 52, Galanter, Marc, 22–23 64, 65; responsible communica- Galiano Conservancy Association, 44 tion and, 84, 85, 143, 151n1; in Galiano Trust Committee, 44 Singapore, 78; and slapps, 15–16, Garneau, Marc, 77 142–43; support for defence Geranium Corporation, 47, 113–14 against, 84–86. See also Langille v. Gill Farms Inc. v. Darrow (1998), 101 McGrath (2001) Glen Valley Watershed Society. See Deltell, Gérard, 76 Scory v. Krannitz, DeWitte, and democratic deficit, 144 the Glen Valley Watershed Society Denealt, Alain. See Les Éditions (2011) Ecosociété Goh Chok Tong, 77 Digby Neck quarry, 104 government, Canadian: 2012 budget, discovery, 20, 132–34 147; and Charter of Rights and Dosanjh, Ujjal, 106 Freedoms, 4, 8. See also Airbus Downard, Peter. See Anti-slapp Advis- scandal; Cadman affair; Canada; ory Panel organizations, as both plaintiffs and defendants; politicians, and Ecojustice, 128–29 slapps; robo-call scandal Éditions Ecosociété, Les, 48–50 Governor Gray Davis Committee v. Elections Canada, 67–68 American Taxpayers Alliance, 79 environmental legal protections, 147 Grant, Peter. See Grant v. Torstar exploitation of personality, 16 Corp. (2009) Grant v. Torstar Corp. (2009), 84, First Amendment (us). See petition, 85–86, 151n1 right to Guelph (Ontario). See City of Guelph Florida, regulation of slapps, 99 v. Hanlon Creek Protesters Flynn, Greg, 75 forum shopping, 50, 99 Harcourt, Mike, 105–6 Fraser, Ellen, 54–55 Harper, Stephen, 76. See also Cad- Fraser v. Saanich (1997), 54–55 man affair freedom of speech: in Canadian Hillsdale community group, 47–48

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Hillsdale Land Corporation, 47–48. Macdonald Commission, 109–10, 112 See also Geranium Corporation MacKay, Peter, 36, 76–77 MacMillan Bloedel, 44 Illinois, regulation of slapps, 99 Mainstream Canada, 1, 46–47 individuals, in slapps: as defendants, malicious prosecution, 16–17. See 25; individual vs. individual, 24, 30, also abuse of process 32, 41; self-representation by, 56 Mandel, Stephen, 52–53 injunctions, 21 Martin, Pat, 67–69 institutions. See organizations, as Martin, Paul, 76 both plaintiffs and defendants McDonald’s, 15–16 invasion of privacy, 16 McGrath, Odette. See Langille v. McGrath (2001) Kimvar Enterprises, 113–14. See also McLibel case, 8, 15–16 Geranium Corporation media, 34, 84–85, 136–37. See also Korpan, Gary, 51–52 social media Meir, Matt, 68 Langille v. McGrath (2001), 41–42, Miller, Gord, 114–15 52 Moran, Mayo. See Anti-slapp Advis- law: as double-edged sword, 8; inter- ory Panel action with politics, 4–5. See also Morris, Dave, 15–16 common law; public interest law; movement building, 125, 130, 137, rule of law 138, 147 lawsuits: assumptions inherent to, Mulroney, Brian. See Airbus scandal 145; political opportunities of, 124; municipal politics: and parliamentary representational aspects of, 144 privilege, 66; slapps involving, 6, lawyers, retaining, 127–30, 137 50–53 Lawyers’ Professional Indemnity Company, 115 Naqvi, Yasir, 120 Lee Hsien Loong, 78 ndp (New Democratic Party), 104 Lee Kuan Yew, 77–78 ndp government, of BC, 105–7 legal aid, 130 New Brunswick, attempted regula- legal education, 146 tion of slapps, 103–4 legalization of politics thesis, 3, 5, 14 New Democratic Party (ndp), 104 legal precedent system, 40 news media. See media libel. See defamation New South Wales Parliament, 83–84, Liberal government: of BC, 107; of 87 Ontario, 119–20 newspapers. See media Liberal Party: of Canada, 76 (see also New York (state), regulation of slapps, Airbus scandal; Cadman affair); of 101 Quebec, 76, 79–80 Noir Canada (Denealt, Abadie, litigation privilege, 133 and Sacher). See Les Éditions logging cases, BC, 44–45 Ecosociété

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Noreau, Pierre, 49–50 Protection of Public Participation Nova Scotia, attempted regulation of Act, The (Bill 83), 119–20 slapps, 104 public interest law, 2–3, 12, 128 nuisance, 19 public officials. See politicians, and slapps Ontario, attempt at regulation of public participation. See political slapps, 8, 115–20, 121, 146, 147 participation Ontario Bar Association, 119 Public Participation Act (New Bruns- organizations, as both plaintiffs and wick), 103–4 defendants, 24–25, 43–44. See also government, Canadian; mu- Quebec, regulation of slapps, 8, 49, nicipal politics; social movement 99, 108–13, 121, 138, 146 organizations RackNine, 67–69 Parliament. See Airbus scandal; Cad- resources: imbalance of, 22–24, 129, man affair; parliamentary privilege; 144–45; securing, 130. See also Roberts v. Bass (2002); robo-call movement building scandal responsible communication, 84, 85, parliamentary privilege, 64–66, 71, 143, 151n1 74, 83, 87 Retail, Wholesale and Department Pennsylvania, regulation of slapps, 99 Store Union v. Dolphin Delivery People’s Action Party, 77–78 (1986), 59–60 petition, right to, 12, 26, 27, 28, 34, “right to reply,” 83–84, 87 59, 116 Roberts v. Bass (2002), 78–79 Petter, Andrew, 106 robo-call scandal, 67–69 political participation: defining limits Rogers, Brian Macleod. See Anti- to, 141–42; expressions of, 6; slapp Advisory Panel slapps as threat to, 30, 31, 32–37, rule of law: access to courts as part of, 144 29, 142; in democracies, 89; indi- politicians, and slapps, 6, 34–36, vidual entitlements vs. collective 50–53, 78–79. See also Airbus interests, 7; and limits to expres- scandal; Bellamare, Marc; Cad- sion, 6; vs. public participation, 90 man affair; Charest, Jean; robo- rwdsu Local 558 v. Pepsi Cola (2002), call scandal 60–61 politics, interaction with law, 4–5 Pring, George, 12, 27 Sacher, William. See Les Éditions pro bono representation, 129 Ecosociété proof, standard of, 135 Schreiber, Karlheinz, 69–70 property right violations. See nuis- Scory v. Krannitz, DeWitte, and the ance; trespass Glen Valley Watershed Society Protection of Public Participation Act (2011), 42–43 (Bills 10 and 29), 106–7 settlements, 21, 97–98, 139

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Singapore, use of litigation in, 77–78 statements of claim/defence, 130–31 Singapore Democratic Party, 77 Steel, Helen, 15–16 slander. See defamation sub judice convention, 75 slapp-backs, 17, 80, 131. See also Supreme Court of Canada: on ap- countersuits propriate grounds for dismissing slapps (strategic litigation against lawsuits, 95; on common law vs. public participation): concerned Charter, 59–61; critiques of, 4; on with civil society, 143; current defamation, 151n1; against defama- context for, 147–48; defence tion lawsuits, 84–86; on freedom of against, 8–9, 138–39; defined by expression, 58. See also courts Justice Singh, 55; defined by Pring and Canan, 12–13; defining, 11, Tarrow, Sydney, 5 29; democratic implications of, 37, Thibault, Robert, 69–71 144; democratic implications of, Toronto Port Authority, 45 based on types of parties, 30, 31, Toronto Star. See Grant v. Torstar 32; existing remedies to, 93–99; Corp. (2009) financial costs of, 139; origins of, torts: economic, 17–18, 21; law of, 12, 40; participants in, 22–25, 23; 142 principles for regulation, 90–93, trespass, 18–19 99, 100, 116, 146–47; purposes of, trials, 135–36 1–2, 5, 13–14, 19–20, 36–37, 145; Turmel, Nycole, 77 quantifying, 39–40; reframing of by defendants, 125–26; regulation of, unions, trade, 17 8, 89–90, 110–12, 113, 121, 146– United States of America: attention to 47, 148; requirements for enacting slapps in, 2; First Amendment vs. regulations, 108; scope of advocacy, Canadian context, 12, 28; media 25–28; stages of, 20–21; success in courts in, 136–37; origins of rate of, 14, 20, 96, 124, 144 slapps in, 12; regulation of slapps social media, 34, 35, 84–85, 130, in, 89, 99–100, 121. See also Cali- 137. See also media fornia; New York (state); petition, social movement organizations: right to; Washington (state) challenging legislation by, 143; and law and rights, 4; litigation Waldman, Thomas, 27–28 as strategy, 124–25; mobilization Washington (state), regulation of of, 5; obtaining legal representa- slapps, 100–101 tion, 126–30, 137; public nature Weir, Elizabeth, 103 of disputes and, 32–33; threat to Western Canada Wilderness Com- public participation of by slapps, mittee, 44 33. See also movement building; witnesses, expert, 135–36 organizations, as both plaintiffs Wynne, Kathleen, 119 and defendants Youthdale Treatment Centre, 1 solicitor–client privilege, 133 Staniford, Don, 45–47, 136 Zytaruk, Tom, 72

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