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SLAPP Suits: Taseko, WCWC And Potential Legislation

The British Columbia legislature may soon enact legislation designed to address strategic lawsuits against public participation, otherwise known as 'SLAPPs.' A SLAPP suit is a claim filed with the aim of censoring, intimidating or silencing those who

The mere fact that a person, entity or local government may be sued for expressing views can create a chilling effect on discourse around matter public interest

are expressing views on a matter of public interest. Lawsuits can be extremely time-consuming and expensive, even where a defendant is eventually vindicated. SLAPP suits may be initiated by organizations or individuals with significant resources against organizations or individuals with limited resources. The lawsuit need not ultimately succeed to be an effective SLAPP; the process of defending the action, in and of itself, acts as a form of punishment. In addition, the mere threat of being sued can dissuade critics from expressing their views. SLAPP suits, by their very nature, run contrary to the freedom of expression protection provided under the Canadian Charter or Rights and Freedom.

A recent BC Court of Appeal decision, Taseko Mines Limited v. Western Canada Wilderness Committee, 2017 BCCA 431, has re-ignited discussion about the lack of anti-SLAPP legislation in this province. The case arose when Taseko unsuccessfully sued the Western Canada Wilderness Committee ("WCWC") for defamation in relation to five articles posted on its website regarding the building of an open-pit mine; WCWC alleged that the lawsuit was a SLAPP. At trial, the court awarded special costs to WCWC on the basis that Taseko ought to have dropped its claim for punitive damages and that its failure to do so was "an economic threat, and in a defamation case it may have had the effect of silencing critics." The Court of Appeal overturned the portion of the judgment related to the award of special costs.

British Columbia previously had in force anti-SLAPP legislation, albeit only briefly from April 11, 2001 to August 16, 2001 (this legislation was repealed by the new provincial government of the day: Protection of Public Participation Act, 2001 S.B.C. c. 19. rep. by the Miscellaneous Statutes Amendment Act, 2001, S.B.C. 2001, c. 32, s. 28). Currently, Ontario and Quebec have legislation to address SLAPP suits, as do many jurisdictions in the United States. In a letter dated February 7, 2018, several prominent legal minds, including former Justices of the Supreme Court of Canada, wrote to the Attorney General of BC expressing the need for effective anti-SLAPP legislation, and suggesting that the Ontario legislation may provide a model to follow. Under the Ontario legislation, a person being sued (the defendant) may bring a motion to have the claim against them dismissed. The Ontario legislation provides:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

The Ontario anti-SLAPP legislation, therefore, provides a mechanism whereby claims may be quickly dismissed, saving legal expenses and time, and conserving court resources.

The B.C. Attorney General replied that his government is committed to introducing legislation on lawsuits that unduly limit expression on matters of public interest and that "British Columbians should have the right to participate freely in public debates without fear of retribution."

For local governments, anti-SLAPP legislation may provide peace of mind in certain situations, for example where a local government wishes to express views against a certain project or developments. Case law demonstrates that local governments are not immune from litigation brought for an improper motive. In Macmillan Bloedel Ltd. v. Galiano Island Trust Committee, 10 BCLR (3d) 121; 63 BCAC 81, the plaintiff brought an action alleging bad faith and seeking to declaration that certain bylaws were void for illegality. The defendants asserted that the entire action was without merit and, among other things, was improperly motivated in an attempt to stifle public debate. This lawsuit consumed vast legal resources and the defendants, although ultimately successful on appeal, were embroiled in litigation for years.

Anti-SLAPP legislation may also encourage public participation with respect to local government matters. In Scory v. Krannitz, 2011 BCSC 1344, an action was commenced that alleged several causes of action against the respondents, arising out of the respondents' statements and written material, circulated in response to the claimant's permit application. The court concluded that there was no evidence to support any of the causes of action. The claimant had made very serious, unproven allegations against the respondents but provided no evidence to support many of the assertions. The court also found that the claimant greatly exaggerated the statements made by the respondents and fabricated other allegations concerning their conduct and statements.

Strategic lawsuits against public participation can, and do, arise from debate at the local government level. Moreover, the mere fact that a person, entity or local government may be sued for expressing views can create a chilling effect on discourse around matter public interest. The BC government has expressed that it seeks to enact new legislation to address SLAPP suits, and local governments are encouraged to keep an eye on this matter.

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