Anti-SLAPP Legislation Nowhere in Sight
Picture this: a new large-scale development project is proposed for your community, and you are worried about the potential impacts of the project on the environment. You attend a public information session about the proposal and ask some tough questions of the developer or voice strong opinions. Perhaps you encourage your neighbours to join you in opposing the project. Maybe you place a sign on your lawn, organize a group of concerned citizens, circulate a petition or write letters to the editor of the local newspaper expressing your views on the project. The next thing you know, you are served with a multi-million dollar lawsuit by the developer. You don’t want to back down, but you don’t have the resources to defend the lawsuit, so what choice do you have?
You’ve just been SLAPPed.
Defining the Problem
A "SLAPP suit" (strategic lawsuit against public participation) is a civil action brought without merit against citizens or organizations to stifle public participation in a matter of public interest. SLAPP suits, which are usually advanced as defamation suits, may be intended to intimidate, punish, divert or deplete the resources of, and — most importantly — silence citizens engaged in legitimate public discourse.
In our 2008/2009 Annual Report (see pages 23-25), the ECO drew attention to the imbalance of power in planning disputes between developers and local residents who oppose development proposals in their communities. We identified a need for provincial legislation that would put both sides of development disputes on equal footing and halt SLAPP suits in their tracks. The ECO called on the Ministry of Municipal Affairs and Housing (MMAH) to "take the lead in developing legislation to discourage developers from using cost applications and similar tactics to frustrate public participation in the planning approval process."
Progress: the Anti-SLAPP Advisory Panel
In May 2010 — just months after the ECO released our report recommending the development of anti-SLAPP legislation — Ontario’s Ministry of the Attorney-General (MA-G) announced that it had convened a three-person Anti-SLAPP Advisory Panel (the “Panel”). The Panel was tasked with reporting to the government on “how the Ontario justice system should be designed to prevent the misuse of the courts and other agencies of justice without depriving anyone of appropriate remedies for expression that goes too far.”
The Panel invited written submissions from the public and held two meetings to allow the public to make oral presentations. The Panel received submissions from 31 organizations and individuals, and heard eight oral presentations. The Panel reported that 27 of the 31 submissions received (one of which was signed by 46 individuals and organizations) “supported the introduction of specific legislation against SLAPPs.”
The Panel’s 26-page report was released on December 21, 2010. The Panel recommended that Ontario enact anti-SLAPP legislation, stating that:
The Panel was persuaded that threats of lawsuits for speaking out on matters of public interest, combined with a number of actual lawsuits, deter significant numbers of people from participating in discussions on such matters. The Panel believes that the value of public participation … is sufficiently weighty that the government should take active steps to promote it by enacting targeted legislation.
The report provides specific advice on the content of such legislation, including recommendations about the scope of activity that should be protected, a multi-step test for identifying a SLAPP suit, and appropriate remedies and defences.
|Anti-SLAPP Laws: Not a Novel Idea|
|Anti-SLAPP legislation is nothing new; it has existed in other jurisdictions for years. Roughly half of American states have enacted some form of anti-SLAPP legislation. In Canada, however, Quebec is currently the only province with an anti-SLAPP law; that province’s Code of Civil Procedure was amended in 2009 to allow the courts to impose penalties on those who use the courts for SLAPP-type purposes.
British Columbia enacted anti-SLAPP legislation in 2001, but it was quickly repealed following a change in government. Other provinces have introduced anti-SLAPP bills, but never passed them into law; most recently, a private members’ bill introduced in the Ontario Legislature in late 2008 (Bill 138, the Protection of Public Participation Act, 2008) never made it past First Reading.
To address the issue of abusive lawsuits, such as SLAPPs, the Uniform Law Conference of Canada adopted a Uniform Prevention of Abuse of Process Act in 2010; the purposes of that model law are “to prevent the improper use of the legal system” and “to promote the exercise of the freedom of expression by discouraging proceedings that risk hampering or inhibiting public participation.” To date, no jurisdiction in Canada has adopted the model statute.
Almost two years since the Panel’s report was released, barely a whisper has been heard from the government about its next steps. When the report was released, MA-G stated that the ministry “will review the report and the recommendations of the panel,” and that it continued to welcome public input. On enquiry to MA-G in early 2012, the ECO was simply informed that the ministry continues to study the report. It is not clear what role, if any, MMAH might play in ensuring that any anti-SLAPP legislation (or other measures) introduced by the government addresses problems in the planning context, such as those the ECO identified in 2008/2009.
In February 2012, the chairs of the Ontario Bar Association’s (OBA) environmental law, municipal law and civil litigation sections wrote to the Attorney General to express the OBA’s support for the Panel’s report (subject to two minor issues regarding costs awards). The OBA urged the Attorney General to adopt the Panel’s report and introduce anti-SLAPP legislation in Ontario, noting that the Panel has provided Ontario with “an effective blueprint” for “protecting legitimate legal rights while avoiding the chill on public participation and drain on public resources that ill-motivated law suits can exact.”
The ECO is discouraged that this initiative, which had so much initial momentum, seems to have stalled. There is clearly public appetite for legislation to protect against SLAPP suits, and the Panel laid a firm groundwork for the government to move forward.
Public participation is a fundamental component of a democratic society and is worthy of protection. Ontario recognized this in enacting the Environmental Bill of Rights, 1993 (EBR) almost 20 years ago. The ECO hopes that the province is carefully considering the Panel’s recommendations and that it develops and implements an action plan without further delay.
Anti-SLAPP legislation will no doubt be of great interest to the EBR’s wide range of stakeholders. The ECO urges MMAH and the Ministry of the Environment to work with MA-G (which is not prescribed under the EBR) to ensure notice of any proposed anti-SLAPP legislation (or similar measures) is posted for full public comment on the Environmental Registry. It would only be fitting.