Ian Mulgrew: Perfect time to make a strong judgment against SLAPP

Opinion: ‘Strategic Lawsuits Against Public Participation’ are legal actions brought to silence a critic rather than remedy some ostensible grievance.


Thank Oprah and mad cow disease for a citizen empowerment law resurrected in 2019 and significantly explained last week by the British Columbia Supreme Court in time for the fall election.

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Use the law to To protect public debate, Judge Jan Brongers dismissed 24 separate libel claims against the Qualicum Nature Preservation Society and its president for comments made during a controversial land-use dispute involving environmental concerns.

In dismissing the developer’s lawsuit, Brongers said it exemplified the type of litigation the legislature sought to avoid in 2019 by unanimously passing the Protection of Public Participation Act.

The law aims to stop litigation called “Strategic Lawsuits Against Public Participation” or “SLAPP”, legal actions brought to silence a critic rather than remedy any ostensible harm.

It is a duplicate of a law passed in the last days of the last NDP provincial government of the 20th century and irresponsibly scrapped by the incoming Liberal administration in 2001.

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An anti-free speech tactic, SLAPP lawsuits first appeared in the US in the late 1980s to censor, intimidate, or gag critics by burdening them with legal fees and undermining procedural claims.

In 1996, after Oprah declared she would never eat another hamburger due to mad cow disease, Texas ranchers filed a US$12 million lawsuit to intimidate her.

They should have known better. The idol of American television grilled those cowboys.

Today, laws against SLAPP lawsuits exist in most states and the District of Columbia, as well as in other parts of the world, such as Guam and Australia.

BC was the first province to adopt such a law due to its experience with take-no-prisoner struggles over resource extraction, the environment, and urban development.

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One of the first cases to raise these issues in Canada occurred in 1992 after the then MacMillan Bloedel filed a lawsuit against Galiano Island authorities who opposed his development plans.

Although the Galiano Conservancy Association successfully fought the lawsuit, it hurt the organization by siphoning off its time and efforts.

Another high-profile case followed in 1999 in which the British Columbia Supreme Court overturned a hospital director’s lawsuit against the Saanich district. The court held that his lawsuit was without merit and designed to quell opposition to the hospital’s development plans.

These cases prompted the original legislation passed by the outgoing NDP government. The incoming Liberal Prime Minister, Gordon Campbell, immediately ruled it out.

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He insisted that the original Public Participation Protection Act, the first of its kind in Canada, was unnecessary and would lead to a provincial “culture of protest”.

Quebec has since adopted a similar law in 2009 and Ontario in 2015 to “allow the public to participate more freely in public debate without fear of reprisal.”

In 2017, Taseko Mines appealed a BC Supreme Court decision that dismissed its libel action against the Western Canada Wildlife Committee for harsh criticism of its proposed New Prosperity copper and gold mine near Williams Lake.

That and another case later dropped by Trans Mountain Pipeline against five people linked to the Burnaby Mountain protests prompted BC to review the need for anti-SLAPP legislation.

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In this Qualicum Beach dispute, the society launched a grassroots campaign against the Todsen Design and Construction development for potentially threatening a sensitive forest and wetland.

Brongers, a former senior general counsel at Justice Canada in Vancouver, appointed just two months before the case was handed over to him, held a four-day hearing in February and issued his ruling on Tuesday.

It will be useful throughout the province as a 57-page guide to analyzing and understanding the law for all those preparing for public battles in municipal elections this fall.

Here, Todsen Design, a small family business with three employees and a part-time assistant, purchased 16.4 acres on Qualicum Beach, just north of Parksville.

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He built a house on the parcel’s two 8.2-acre strata lots: Richard and Linda Todsen lived on one and their partner on the other.

In June 2019, the Todsens asked the city to rezone the remaining 6.4 acres into 16 separate, subdivided properties on which they planned to build 14 single-family homes, 10 secondary garden suites, and two sets of duplexes.

In April 2020, Ezra Morse and two others founded the Qualicum Nature Preservation Society and stridently attacked the Todsens and their supposedly environmentally damaging proposal.

The Todsens filed their civil lawsuit on May 14, 2021, alleging that the society and Morse, its president, were responsible for two dozen defamatory statements.

Morse and the company requested that the lawsuit be dismissed pursuant to statutory procedure to summarily dispose of claims that could silence political debate in the public interest.

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“Ultimately, the court must consider whether ‘what is really going on’ in a plaintiff’s lawsuit is an attempt to strategically silence the defendant’s speech on a matter of public concern, or whether it actually remediates the harm suffered as a result of defendant’s communication,” he explained.

Therefore, the judge must decide if the lawsuit should proceed or if it qualifies as a SLAPP. If a SLAPP lawsuit is found to have no malicious intent, such as this one, no damages are imposed.

“I do not find that (Todsens) brought his claim in bad faith or for an improper purpose,” Brongers concluded in Your decision which, however, annulled the claim.

In Brongers’ view, the lawsuit appeared to be more about what kind of public discussion and degree of opposition to the rezoning request were permissible rather than whether the Todsens should be given legal recourse.

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He endorsed the entire public debate in clear language that should energize this year’s municipal candidates and their supporters across the province.

The decision should give citizens the confidence and encouragement to speak clearly and freely, and not shy away from using strong, even accusatory, rhetoric on issues of public interest for fear of legal repercussions.

Jason Gratl, an attorney for the defendants, thought the law restored the primacy of community discussion: “Developers who feel their projects are beyond criticism cannot take advantage of the courts to shut down democratic debate.”

While the Todsens were not required to pay damages, a decision on the defendants’ legal fees has yet to be made.

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