Ontario urged to take on silencing lawsuits

TheGlobeandMail.com – ROB/IndustryNews/theLaw
Published Tuesday, Dec. 21, 2010. Last updated Wednesday, Dec. 22, 2010.   Jeff Gray And Law Reporter

The Ontario government should crack down on lawsuits filed by developers or corporations that are designed to silence opposition from activists or the public, a blue-ribbon panel of legal experts says.

Concern over the lawsuits, known as SLAPPs — strategic litigation against public participation — has risen in Ontario in the wake of fights over development projects in which activists or local residents faced lawsuits and legal bills after speaking out.

The recommendations for Ontario Attorney-General Chris Bentley, released to Tuesday, say the province should follow in the footsteps of Quebec and about half of the states in the U.S. and craft anti-SLAPP legislation.

Under the recommendations, the proposed law would protect “all communications on matters of public interest.”

For example, if a libel lawsuit was filed against activists fighting a development project, the lawsuit would be subject to a special procedure.

At a hearing within 60 days, the defendants would have to show that the lawsuit involves the “protected activity” of public participation. The plaintiff would be then have to demonstrate that the case has “substantial merit” and should be allowed to go ahead, despite its impact on freedom of speech.

If the suit failed this test, it would be dismissed, and the plaintiff would have to pay the defendants’ legal costs.

Environmentalists welcomed the proposals, and urged the Liberal government of Premier Dalton McGuinty to draft and pass legislation before next year’s provincial election.

Hugh Wilkins, a staff lawyer with the national advocacy group Ecojustice — one of several groups that submitted reports to the panel — said the recommendations did not go as far as he had hoped but were a good first step.

“The thing about SLAPPs is they are very effective. They are so effective that you never hear about them, because, the whole thing about them is, they are trying to shut people up,” Mr. Wilkins said.

The development industry has opposed anti-SLAPP legislation, arguing it could cast too wide a net and make it difficult to launch legitimate lawsuits against activists who engage in smear campaigns.

“There’s got to be some accountability both ways. This proposal, in our view, would create an imbalance,” said Stephen Dupuis, the president and chief executive officer of the Building Industry and Land Development Association (BILD), which represents the Toronto area’s residential development business,

The advisory panel, struck in May, was chaired by Mayo Moran, dean of the University of Toronto’s law school, and included Peter Downard, a lawyer with Fasken Martineau DuMoulin LLP and Brian MacLeod Rogers, a veteran Toronto media lawyer.

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