Judicial heavyweights call for B.C. to introduce anti-SLAPP legislation

A judicial who's who including two retired Supreme Court of Canada justices and a pair of former B.C. attorneys general are calling on British Columbia to introduce laws to deter strategic lawsuits against public participation — also known as SLAPPs.

In an open letter to B.C. Attorney General David Eby, former NDP premier and attorney general Ujjal Dosanjh, former Liberal attorney general Wally Oppal and former Supreme Court justices Frank Iacobucci and Ian Binnie say anti-SLAPP legislation is needed to keep deep-pocketed plaintiffs from discouraging free speech by threatening critics with costly legal action.

"Defendants of SLAPPs are exposed to onerous financial and emotional costs incurred in a process that attacks their individual right to speak on matters of public interest and chills citizen engagement more broadly," says the letter, which was obtained by the CBC.

"British Columbia needs to safeguard the administration of justice by enacting effective anti-SLAPP legislation."

It all starts with Oprah

The two-page letter was also signed by former B.C. Supreme Court justice Lynn Smith, former B.C. provincial court Chief Judge Carol Baird Ellan and University of B.C. law school dean Catherine Dauvergne. Other signatories include lawyer Joseph Arvay, novelist William Deverell and a handful of law professors.

The issue of SLAPP lawsuits has confounded courts around North America for decades, with perhaps the best known example being a 1996 lawsuit filed by cattle ranchers in Texas against Oprah Winfrey after the popular American TV host aired a show in which she said she wouldn't eat another hamburger.

B.C. introduced anti-SLAPP legislation under the last NDP government in 2001, but the Liberals repealed it shortly after taking office months later.

The authors of the letter point to "defects" in the old legislation, "which required defendants who attempted to use the mechanism to demonstrate an improper motive on the part of the plaintiff."

"As motive is very difficult to prove in civil suits such as the ones at issue, this threshold would generally be insurmountable," the letter says.

The letter instead cites legislation introduced in 2015 in Ontario as a model for B.C.: "Ontario's legislation supports the proper operation of the court system in providing an expeditious vetting of abusive suits and proper protection for meritorious suits."

Taseko and Trans Mountain

The SLAPP issue was highlighted in a defamation suit brought by Taseko Mines against the Wilderness Committee which rose all the way to the B.C. Court of Appeal.

In siding with the Wilderness Committee, the original trial judge issued a penalty against Taseko as a rebuke. But he found that it was up to the legislature to decide on special costs for SLAPP suits.

The appeal court upheld the victory for the Wilderness Committee, but overturned the special costs in part because the judge didn't find that the suit was actually a SLAPP.

The issue also arose in a multimillion-dollar lawsuit launched against five Kinder Morgan protesters in 2014 by Trans Mountain. One of the protestors applied to the Supreme Court to have the suit dismissed and declared as a SLAPP but he was denied.

Trans Mountain ultimately discontinued the claim.

'More urgent ... than ever'

University of Victoria professor Chris Tollefson says the time is right for anti-SLAPP legislation. He points to the growth of protest movements through social media and a parallel gap between the resources of ordinary citizens and the wealth of the corporations they might want to criticize.

"The need for SLAPP legislation is an access to justice issue and it is, I think, now a more urgent issue than ever before," he says.

"Really, I think this is unfinished business for many of us who are concerned about protecting democracy and ensuring that the legal system isn't abused by frivolous and abusive suits."

Tollefson said possible legislation should begin with a recognition of the right of citizens to express themselves in a legitimate and lawful way.

"Any lawsuit which targets or complains about that lawful democratic expression, that would immediately be identified as subject to an anti-SLAPP fast track," he says.

The target of the suit would then have to gather to argue that the suit is a SLAPP and if successful, special costs might be awarded. Other options might require the plaintiff to post a bond to cover legal expenses for the defendants in the event that a trial judge deems it to be a SLAPP suit.

Read the letter