Civil Litigation

Anti-SLAPP legislation needed to avoid David v. Goliath cases

By Mia Clarke, Associate Editor

Anti-SLAPP legislation could help avoid David and Goliath court battles like one currently before the British Columbia Court of Appeal, says Fredericton litigator Matthew Pearn.

“There's a call in certain jurisdictions for legislation that would prevent large corporations from pushing lawsuits through the courts as a way to silence criticism,” says Pearn, an associate with Foster & Company.

In the British Columbia case, a large mining company accused an environmental group of defamation for online comments that criticized the company’s operations.

The environmental group spent five years fighting the claim before the British Columbia Supreme Court dismissed the case in 2016.

The company then filed an appeal, which the British Columbia Court of Appeal heard on June 7 and 8. The court reserved judgement.

The CBC says Taseko Mines accused the Wilderness Company of defamation after the environmental group alleged the company's open-pit gold and copper mine would turn nearby Fish Lake into a "dump site for toxic tailings."

The environmental organization then posted two more articles, alleging the company specifically filed a Strategic Lawsuit Against Public Participation (SLAPP) lawsuit as a means to silence its opposition when faced with the spectre of a costly court battle.

While the judge didn't use that term in awarding special costs, he did issue the company a rebuke, says the CBC.

"In this case, seeking punitive damages was an economic threat," the judge wrote.

"In the context of a defamation action, seeking punitive damages may serve to silence critics."

A defamation lawsuit is daunting enough for an organization, says Pearn. For an individual, whose home and life savings could be on the line, such cases can be sufficiently dissuasive.

“For individuals and organizations trying to raise the alarm, a SLAPP lawsuit creates a real financial burden because they have to defend the suit that’s been brought against them,” says Pearn.

“Those are big costs for smaller organizations or news media. So, when the circumstances suggest that a large corporation is making efforts to essentially drain the resources of a small publication, that’s contrary in some respects to democratic values.”

Pearn says such cases could be prevented with anti-SLAPP legislation like those enacted by Ontario and Quebec. British Columbia has no such protection.

As the Toronto Star reports, Ontario passed the Protection of Public Participation Act to stop lawsuits which are used by individuals or companies specifically to silence critics. The province has said it wants to ensure residents — as well as bloggers and reporters — are able to speak out on issues without fear of costly litigation.

Often, says Pearn, those who file such lawsuits have no expectation of winning. They simply have the financial means to continue the suit until the defendant gives up.

With anti-SLAPP legislation, “if the lawsuit isn’t meritorious, it wouldn’t proceed. It could entitle the individual to a summary trial instead of a full trial or require further proof from the plaintiff beyond the bare-bones pleadings for the lawsuit to proceed,” explains Pearn.

“It’s like having to certify a class in a class-action lawsuit.”

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