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Grassroots Cedar Hill Eight SLAPP back

Times Colonist February 5, 2000

By Chris Tollefson and Bram Rogachevsky

FOR A SMALL group of Saanich residents who have come to be dubbed the Cedar Hill Eight victory was sweet. It came on May 31, 1999, in a B.C. S Supreme Court judgment that vindicates rights of citizens to engage in lawfull democratic expression without fear of retaliatory lawsuit.
This decision recognizes for the first time in Canadian legal history, the spectre of Strategic Lawsuits Against Public Participation (SLAPP suits). In response to the case, and a six year-long grassroots anti-SLAPP campaign, British Columbia is now poised to become the first Canadian jurisdiction to pass legislation to counter the anti-democratic threat of SLAPPs.

The Cedar Hill Eight did not set out to be champions for democratic rights, let alone litigants in a precedent-setting test case. They were sued for doing what most of us take for granted: exercising their right to participate in local government decision-making.

Concerned about the adverse impact of a development proposal on their Cedar Hill neighbourhood, they drafted a petition and lobbied their local councillors. When Saanich council took steps that effectively blocked the proposed development, the developer sued eight of the local residents whose names. appeared on a petition that had been submitted to council. The developer's lawsuit alleged that the eight residents had, among other things conspired to injure business by opposing, its development plans. The suit sought damages for economic losses from each of the eight residents.

Like most Canadians, the Cedar Hill Eight had probably never heard of SLAPP suits. Fortunately, their lawyers, John Finlay and Cathie Parker, had. They persuaded B.C.. Supreme-Court Justice T.M. Singh to dismiss the suit and order the developer to pay their client's special costs.

In his decision, Justice Singh reprimanded the developer for trying to "stifle the democratic activities of the defendants," conduct which he concluded was "reprehensible and deserving of censure." But the significance of Justice Singh's decision goes much further. He held that the developer's claim bore the unmistakable hallmarks of a SLAPP suit; the first time that a Canadian court has been prepared to reach such a conclusion.

SLAPP suits have been a troubling feature of our legal system for some time. The term refers to civil actions, usually brought by powerful corporate interests, aimed at deterring and penalizing citizen participation in public decision making processes. The more these processes have been opened to include citizens, the more frequently entrenched interests. have responded with SLAPPs.

SLAPPs are founded on exaggerated and unsupportable legal claims, that have little or no chance of succeeding at trial. But to the SLAPP filer this is beside the point. Their goal is not to win the lawsuit in court, but to deter opposition and achieve community acquiescence. Faced with the prospect of steep lawyer's bills and the ongoing anxiety of fighting a lawsuit that could drag on for years, many citizens and cash-strapped community groups settle rather than fight.
Compounding the problem is that the Canadian Charter of Rights and Freedoms does not protect citizens facing abusive lawsuits brought by other "private" parties. In the end, whether the SLAPP target decides to fight or settle, our shared interest in free lawful democratic expression is undermined.

Hundreds if not thousands of SLAPP suits are filed each year in the United States. As a result, developing a legislative SLAPP antidote has been a key legislative priority. During the 1990s, 13 U.S. states passed anti-SLAPP legislation, including California, New 'York and Washington state. Many more states are about to follow suit.

While SLAPPs, have yet to become a household word in Canada, concern about the phenomenon has been building since the early 1990s. In B.C., where several of the most notorious SLAPPs have been filed, anti-SLAPP legislation is officially supported by an impressively diverse coalition of organizations.
They include the Union, of B.C. Municipalities, the B.C. Federation of Labour, the B.C. Civil Liberties Association and a host of local community and environmental groups. The legislative solution endorsed by this coalition is simple: a law that guarantees the right of citizens to engage in lawful democratic participation - including letter writing, petitioning and community organizing - and that empowers our courts to swiftly identify and penalize suits that infringe or undermine this right.

It would seem that finally that B.C. politicians are listening

In mid-January, B.C. Attorney General and NDP leadership candidate Ujjal Dosanjh publicly committed, if elected premier, to introducing Canada's first anti-SLAPP law - the Public Participation Act - in the next legislative session. To their credit, the other leadership candidates have made the same commitment.

The Cedar Hill Eight and thousands of other British Columbians concerned about protecting the integrity of our democratic processes from the scourge of SLAPPs, will be watching this next session with keen interest.

Chris Tollefson is an associate professor of law. at the University of Victoria and is executive director of the Environmental Law Centre;
Bram Rogachevsky is a UVic, law student and member of the ELC.

http://www.fonvca.org/agendas/sep2001/slapp.pdf

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