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NDP calls for anti-SLAPP law: Would prevent lawsuits being used as financial weapons

By the time Kinder Morgan dropped its civil lawsuit against him three months after filing it, Burnaby resident Alan Dutton was already out over $50,000 in legal fees.

"An ordinary person who gets sued just simply because they happened to be on a mountain, didn't do anything at all but simply happened to be there, can get named in a civil suit like this," Dutton said. "And it'll cost them tens of thousands of dollars and they'll have no other way out [but defending themselves in court]."

Dutton was one of five people named in a civil lawsuit filed by Kinder Morgan accusing them of preventing survey and study work from being carried out on Burnaby Mountain for its proposed Trans Mountain pipeline expansion. The company sought millions of dollars in damages and many criticized it as merely an intimidation tactic, aimed at hurting the defendants financially.

Dutton was buoyed by a bill introduced in the legislature Tuesday by New Democrat justice critic Leonard Krog which aims to prevent "strategic lawsuits against public participation" (SLAPP) which are intended as a way to counter defendants' right to free speech.

“British Columbians have a strong and wonderful tradition of expressing themselves regarding matters of public interest,” said Krog, in a press release. “Sometimes this public expression is inconvenient and problematic for companies and governments too. But it is not acceptable that a wealthy party pushing a particular agenda can try to shut down that expression or intimidate the public.”

The proposed Anti-SLAPP Act would allow the defendants in such a lawsuit to ask the court to dismiss the action and award costs. Judges would be given greater flexibility to evaluate such malicious lawsuits and dismiss them in a more timely fashion.

British Columbia had such a law until 2001 when the then-newly-elected BC Liberal government rescinded it. Quebec already has a similar law while Ontario has introduced an anti-SLAPP bill of its own.

SLAPP suits are meant to silence critics, said Dutton, who now serves as spokesperson for the Environmental Defense Working Group. He said there are currently 15 to 20 such lawsuits ongoing in B.C., and some can take upwards of 10 years before they're settled.

"We're not saying that every suit is a SLAPP suit. And we're not saying that those people who commit violence or break the law should have their cases dismissed under the rules … What we're arguing is that when there's no evidentiary basis then the judge has to have greater flexibility to be able to dismiss the charges and to be able to award special costs."

In the Kinder Morgan case, the company claimed damages it estimated at more than $5 million per month of delay in its work on Burnaby Mountain. It dropped its suit in January, filing a unilateral discontinuance, which doesn't require agreement from the defendants. As a result, it was required to pay special costs to the three defendants who had not yet settled with the company, said Dutton.

But that was only about 15 to 20 per cent of what he'd already paid out to lawyers, he stressed. He credited a crowdfunding campaign and Burnaby-Lougheed NDP MLA Jane Shin's fundraising support for helping keep the defendants afloat financially.

Many of Shin's constituents are "speaking out peacefully about the Kinder Morgan pipeline," she said in a press release.

“People must be able to have their voices heard without the threat of an expensive, cynical attack," Shin said. "The rights of free speech and peaceful assembly are absolutely fundamental to any democratic society.”

As for Dutton, he hasn't given up fighting Kinder Morgan.

"My good name that I built over many years is still tarnished by the charges levelled against me by Kinder Morgan and I'm not going to let that drop. I'm going to sue for defamation."

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