A Look at the Use of SLAPP Suits to Silence the Citizenry

by Ed Johnson, citizen reporter

“A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics…”, according to Wikipedia.

Opposition justice critic Leonard Krog, further defines it as “…often a baseless lawsuit which targets organizations and individuals purely to force them to waste resources and time to defend themselves from these baseless attacks and thus constrain their continued
active public participation.

“These lawsuits also act as further intimidation of other citizens who might be wanting to also demonstrate their concerns on issues such as the protection of agriculture land, water quality and broader environmental issues.”

It is a scenario that has been played out in several municipalities in the region where the resulting urban sprawl has become a hot topic.  Citizens who align themselves against
unwanted development projects have to determine if the financial and legal challenges they may face are worth the personal sacrifice necessary to achieve their goal.

It is common for the playing field to be uneven. Developers may have access to significant resources as well as the ablity to underwrite the costs of a suit as a business expense.  It then becomes a game of whose resources outlast the others.

In one case in Vancouver a citizens group was successful in its bid to stop development of a nearby forest. They were even awarded costs for their attorney.

The BC Supreme Court judge had this to say about the case (Scory V. Krannitz, May 2011):
“…there is no evidence that the statements made by [the defendants] concerning the possible negative consequences of the proposed fill deposit were represented as absolute certainties. It is apparent that the respondents’ statements were opinions about what could happen. These opinions are on a matter of public interest, were recognizable as comment by any objective standard, and not actuated by malice. Thus the defence of fair comment is also available to the respondents even if the statements are proven to be false.”

While the citizen group was finally victorious in their battle to save the forestland, they still lost.  Their lives were so changed by the three-year-long battle that many say that they no longer join citizen groups or speak out publicly on any issue for fear of the great costs of litigation.

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While things are moving forward on this front in Ontario with their passing of their Protection of Public Participation Act, BC has in fact gone backwards.  In 2001 BC, under the NDP government, did pass a similar bill to Ontario’s. Weeks later The BCNDP were defeated in a provincial election and the BC Liberals immediately axed the SLAPP legislation. Despite repeated requests to reinstate the legislation that would give BC judges greater powers to evaluate the merits-or lack thereof-of these types of lawsuits, the BC Liberals have so far refused to do so.

Protective legislation would greatly please Alan Dutton, one of five Kinder Morgan defendants who were threatened with a multi-million dollar lawsuit last year for opposing the 5.4 billion dollar Trans Mountain pipeline expansion.  While Kinder Morgan ‘discontinued’ the action, this merely meant that it could be resumed at a later time.

Closer to home, there are several pending legal actions that may qualify for the ‘SLAPP’ moniker. Perhaps if the anti-SLAPP legislation had been in place these may have never come about, or at least would have been speedily resolved – if a judge deemed them to be strategic lawsuits with the goal of thwarting public participation.

Whether there is an active SLAPP suit going on or not, one should consider what effect the very threat of these malicious acts has on our community’s ability and willingness to voice opinion and engage. The threat is real, as long as the Province refuses to protect our democracy through legislation.

SLAPP Protection Legislation may be discussed during the next legislative session, or not, depending on the whim of the majority government or an outpouring of support from the
citizenry.