Published on March 5, 2011
Posted in: Blog
One of the best and worst features of our civil justice system is that basically anyone can sue anyone else, for anything, at any time. Eventually, the bad lawsuits will be thrown out and the winner may collect some of its costs from the other side. But that is cold comfort for people forced to defend frivolous lawsuits. It is even less comfort when the lawsuit is brought by a powerful plaintiff more intent on inflicting costs on the defendant than righting an actual wrong.
If the recommendations of a panel created by Ontario’s Attorney-General are accepted, there may soon be limited relief for people targeted with a specific type of lawsuit known as a Strategic Lawsuit Against Public Participation, or SLAPP.
SLAPPs are typically brought by corporations or powerful individuals against volunteer organizations and ordinary citizens who speak out on public policy issues. A typical example is a defamation suit against an individual who speaks out against a proposed development at a municipal council or zoning hearing. Another example is a suit against an environmental group for opposing a coal-fired generating plant or oil sands mine, or for lobbying for restrictions on the cosmetic use of pesticides.
In each case, the plaintiff’s goal is to use the court system to intimidate or punish citizens for speaking out against the plaintiff’s interests. Rarely do these types of cases get to trial. The point is to force the defendant to defend a costly suit or issue a coerced retraction. Most of the time, such actions accomplish their objectives without ever seeing the inside of a courtroom.
The panel, chaired by University of Toronto Law Dean, Mayo Moran, found a need for legal protection against such suits. The panel recognized that the mere threat of a SLAPP can stifle public debate and lessen public participation in the democratic process. The civil justice system is currently ill equipped to identify and weed out SLAPPs quickly. Yes, there are ways to stop a frivolous lawsuit in its tracks by bringing a request to a judge. But, as most lawyers know, rarely will a court dismiss a case before full evidence is presented. Our system puts a high premium on the plaintiff ’s right to have its “day in court.”
Sophisticated plaintiffs know this. They also know the financial and emotional costs that prolonged litigation can have on a defendant. For a large corporation, the costs of litigation are the costs of doing business. For individuals or community groups, those financial and emotional costs can be crushing. Without assurances of payment, it can even be difficult to find a lawyer willing to take up their defence. All of that will hopefully change if the proposed law is enacted.
The main feature of the proposed law is a quick and efficient procedure to have a SLAPP dismissed at an early stage. The target of the suit would have the initial onus to show that the lawsuit is directed at its public participation, which includes involvement in the legislative or policy-making process. Once this is shown, the onus shifts. The plaintiff must then show that the claim has substantial merit and the defendant does not have a valid defence.
This is a reversal of the usual test for the dismissal of an action. If the plaintiff cannot satisfy the test, the suit will be tossed out and the plaintiff will be forced to pay the full costs of the defendant.
Anti-SLAPP laws exist in a number of American jurisdictions even though American citizens have constitutional freedom of speech protection from suits by individuals and corporations. In Canada, though, the Charter of Rights and Freedoms protects citizens only from government intrusions on freedom of speech, not from suits by individuals or corporations.
If the proposed law is passed, Ontario will join Quebec as the only Canadian provinces to have an anti- SLAPP law. The panel’s recommendations strike a delicate balance between preserving a plaintiff’s access to the courts, and protecting citizens from the crushing costs of illegitimate lawsuits. The proposed law will deter anyone considering using the legal process to silence legitimate public discourse. It will offer targets of SLAPP suits an effective way to nip the suits in the bud. It will encourage lawyers to represent wor thy defendants who might otherwise be unable to pay legal fees. For these reasons, it is a law worth passing.