Speaking out without the fear of being SLAPP ‘ed’

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Given the importance of citizen participation in our society, the last thing needed is the possibility that those who speak out should be subject to frivolous lawsuits.

New legislation currently before the Ontario Parliament aims to change that.  Bill 52, the Protection of Public Participation Act, is an Anti-SLAPP lawsuit bill designed to encourage individual expression on matters of public interest and discourage the use of litigation as a means to suffocate expression on public matters.  SLAPP is short for Strategic Lawsuit Against Public Participation.

If Bill 52 is enacted, it will allow defendants the opportunity to prove before a judge that legal proceedings brought against them arise from a communication they made in good faith regarding the public interest.  When the judge is satisfied that this is the case, the legal proceedings would be dismissed as it would be determined to be a SLAPP lawsuit.  If the judge is not satisfied, legal proceedings could continue.

My first awareness of SLAPP tactics goes back to 2008 when I sat on a committee holding public hearings on the Lake Simcoe Protection Act.  At that time, there were was a bitter feud between cottagers and developers on Lake Simcoe, involving $255 million in lawsuits.  One person who testified before the committee was subject to a $1-million lawsuit and explained how it negatively impacted his attempt to fight a large development.

I realized these lawsuits were intended to shut people up or perhaps to punish them for holding an opposing view.

Part of what defines a SLAPP is that it is a meritless case and is intended more to intimidate or punish the defendant, rather than to seek justice for any wrong suffered by the plaintiff.  Typically, SLAPPs are withdrawn shortly before going to trial, but by that time they’ve already served their purpose.  The purpose is for the defendant to go through an extended period of duress, and often at a great cost financially in lawyer’s fees to prepare for an impending court case.

If you think the concept of somebody sued for speaking out doesn’t seem realistic, let me assure it is.  I have first-hand knowledge.  I and other area elected officials are named in a $260-billion lawsuit in connection to the Six Nations/Caledonia scandal – that’s $260 billion with a ‘b’.

Last spring, the premier filed a lawsuit against former Opposition leader Tim Hudak and MPP Lisa MacLeod for accusations that the premier “oversaw and possibly ordered the criminal destruction of documents” related to the $1.1 billion gas plant scandal.  Changes have since been made to make Bill 52 not retroactive and thus not applicable in the Hudak MacLeod lawsuit.

At time of writing, the bill remains before the Legislature in second reading debate.  It is expected to pass and be referred to committee.  I encourage anyone concerned with these kinds of frivolous lawsuits to make a submission.  For more information on this process, contact me at toby.barrett@pc.ola.org

I support Bill 52 but feel appropriate safeguards are needed so we don’t go too far the other way – taking away any ability to sue.  We do have to achieve some balance to ensure legitimate lawsuits can go forward, because in our society we also do have the right to have our day in court.

Toby Barrett is a Progressive Conservative member of the Legislative Assembly of Ontario representing the district of Haldimand—Norfolk.  Follow Toby Barrett on twitter: @TobyBarrettMPP

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