Ontario considering SLAPP legislation!! ACT NOW!

[Connie Fournier]

I just found this report, but it has been out for well over a year! The Ontario Government formed an anti-SLAPP Advisory Committee and they produced a report with EXCELLENT recommendations about the need for and the proposed content of legislation to protect Ontarians from SLAPP suits!

We need to get on this RIGHT NOW! I don't know if anything has been done about this or if it has been sitting on the back burner for the past year, but we need politicians on both sides of aisle to pick up the ball and run with this.

Read the recommendations of the Advisory Board, and think about how much this would benefit freedom of political speech in Ontario. This HAS TO become law! We need it now!

http://www.attorneygeneral.jus.gov.on.c ... nti_slapp/

[J.B. Stone]

An excellent chance to put Little Dickie Warbaby and her friends out of business.............

I'm a bit out of the realm, but I STRONGLY encourage everyone to take some action..........

[Connie Fournier]

Under this legislation, we'd have gotten full costs from Baglow, and Warman's crap would have been thown out within 60 days (with full costs to us).

I don't know how this has been out there for over a year and I didn't know about it!!

[Connie Fournier]

I love this part. This is the test that would be used in determining if a suit was a SLAPP:

As a result, the Panel proposes a test with several steps:
i) Does the expression that is the subject of the lawsuit involve a communication on a matter of public interest? The defendant should have the burden of proving this to the court on the balance of probabilities, failing which the special procedure will have no application.

ii) If the subject matter of the action is shown by the defendant on a balance of probabilities to be communication on a matter of public interest, the onus should shift to the plaintiff to show that:
a. On the factual record before the court, the plaintiff’s claim has substantial merit; and
b. There are substantial grounds to believe that the defendant has no valid defence.

iii) If the plaintiff meets these tests, the court should also consider whether, in all the circumstances, the action seeks a remedy for only insignificant harm to reputation, business or personal interests. Where this is so in the court’s view, and permitting the action to proceed would have a clearly disproportionate impact on freedom of expression on a matter of public interest, the court should dismiss the action.

[Connie Fournier]

Here is a list of current Cabinet Ministers and Opposition Critics. I already wrote to John Gerretsen because he is the Attorney General so this is his baby...and he's my MPP.

http://www.ontla.on.ca/web/members/memb ... ?locale=en

[WestViking]

SUMMARY OF RECOMMENDATIONS

1. Ontario should adopt “anti-SLAPP” legislation.
2. The legislation should include a purpose clause for the benefit of judicial interpretation.
3. The language of the legislation should not include the term “SLAPP” but rather emphasize the importance of (a) protecting expression on matters of public interest from undue interference, and (b) promoting the freedom of the public to participate in matters of public interest through expression.

Issue 1: A test for courts to quickly recognize a SLAPP

4. Protection of public participation does not require the creation of a new ‘right’
5. Instead, new legislation should broadly define a sphere of activity to be protected by a special procedure. The protected activity should include all communications on matters of public interest, and not be limited to communications directed to a public body.
6. The lawsuits to be subjected to remedies should be judged by their effect, not their purpose or the motive of the plaintiff.
7. The test has several steps:

a. Defendant has to show that the case involves the protected activity of public participation.
b. Burden then shifts to plaintiff to show that:

i. The case has substantial merit
ii. There are substantial grounds to believe that no valid defence exists, and
iii. The harm it has suffered outweighs the harm done to the public interest (especially in freedom of expression) by allowing the action to continue.

Issue 2: Appropriate remedies for SLAPP suits

8. A motion for a remedy for a suit against public participation should be heard within 60 days of filing.

a. No further steps in the proceeding may be taken until the motion is decided.
b. A fast track appeal should be provided.

9. If a suit fails to meet the test, the case should be dismissed.
10. If the case is dismissed, full indemnity costs should be awarded to the defendant.

a. If the case is not dismissed, the court should in its discretion consider whether costs should be awarded in favour of the plaintiff, whether an award of costs should await the outcome of the proceeding, or whether there should be no award of costs.
b. If the case is dismissed, there should be a presumption that the pleadings may not be amended.

11. If the court finds bad faith or improper motive on the part of the plaintiff, the court should award damages to the defendant in such amount as is just.
12. While the motion is pending, related proceedings before public bodies involving the plaintiff should be suspended.

a. This rule is subject to the discretion of the court to relieve against this provision to avoid substantial hardship in a particular case.

13. The Panel makes no recommendation about funding for defendants.
14. There should be no special rules about advance cost orders.
15. There should be no special rules about case management.
16. There should be no special remedies against directors and officers.
17. There should be no special remedies against lawyers for plaintiffs.

Issue 3: Appropriate limits to the protection of anti-SLAPP legislation

18. There should be no prescribed statutory limitations on the expression on matters of public interest protected by the legislation. The limits of freedom of expression on matters of public interest are already the subject of extensive Canadian jurisprudence. The specific limits of expression on matters of public interest should continue to be a matter for the courts, to be determined on a case by case basis.
 
Issue 4: Appropriate parties to benefit from the protection of anti-SLAPP legislation

19. No one should be excluded automatically from the protection of the legislation.

a. Any party seeking protection of the legislation will have to show that its communication in issue has been on a matter of public interest.

Issue 5: Methods to prevent abuse of anti-SLAPP legislation

20. There should be no special safeguards to prevent abuse. The balancing of interests at the heart of the remedy will allow appropriate disposition of cases. Cost sanctions against parties who bring frivolous motions for protection will be available to provide a remedy against any such abuse, and to deter it.

Other related matters

21. Qualified privilege should be extended to persons with a direct interest in a matter of public interest communicating to others with a direct interest, even if media are present or report on it.
22. Although there is a wide variety of administrative tribunals, the general cost rules in the Statutory Powers Procedure Act already reflect appropriate principles.
23. The SPPA should provide that applications for costs must be in writing, unless this would cause significant prejudice to a party.
24. An unsuccessful applicant for costs before an administrative tribunal should pay to interveners a full indemnity for the costs relating to the application.
25. Corporations’ right to sue for defamation should not be limited at this time.
26. Corporations’ right to deduct litigation costs from taxable revenue should not be affected at this time.
27. Politicians’ right to sue for defamation should not be further restricted at this time.

Full Report in PDF Form

[T.G.]

Good eye.

[styky]

Connie did you catch this?

http://lawiscool.com/2011/10/06/renewin ... n-ontario/

[J.B. Stone]

[Mark Fournier]

Connie did you catch this?

http://lawiscool.com/2011/10/06/renewin ... n-ontario/

I really feel like I'm playing catch up on this.

Good find, styky. Lawiscool did a great analysis and their recommendations are excellent. This type of legislation would bring lawfare in the blogosphere to a screeching halt.

[styky]

Connie did you catch this?

http://lawiscool.com/2011/10/06/renewin ... n-ontario/

I really feel like I'm playing catch up on this.

Good find, styky. Lawiscool did a great analysis and their recommendations are excellent. This type of legislation would bring lawfare in the blogosphere to a screeching halt.

I thought you might have missed that.
I'll keep my ear to the ground for anything further.

[WestViking]

BTTT

[styky]

Code of Silence
http://www.walrusmagazine.com/articles/ ... f-silence/

[backhoe]

From the link:

There is not yet a public will to exterminate the careers and reputations of all persons who threaten SLAPP suits, but that is coming next if the law does not do its duty and stop these suits immediately as they are filed.

May extermination come soon.

I denounce Mah'Sef'!

[WestViking]

Code of Silence

An academic book, a multimillion-dollar lawsuit, and a question: is Canadian law failing free speech?

BY CANDICE VALLANTIN
FRONTIER
FROM THE NOVEMBER 2011 MAGAZINE

In 2008, Les Éditions Écosociété, a tiny Montreal publishing house, released a 348-page treatise on human rights and environmental violations by Canadian mining companies overseas. Noir Canada: Pillage, corruption, et criminalité en Afrique (Black Canada: Plundering, Corruption, and Crime in Africa) presents evidence for Barrick Gold’s alleged complicity in the deaths of fifty-two miners in Tanzania, and for Banro Corporation’s fuelling of violent conflict in the Democratic Republic of the Congo. The book, based on previously published accounts from the international press and UN reports, was intended as a study, not a bestseller. “We were expecting to sell 700 copies at $34 each,” says Elodie Comtois, Écosociété’s head of communications.

Immediately after the book’s launch, Barrick Gold sued Écosociété and the three authors — Alain Deneault, Delphine Abadie, and William Sacher — for a cool $5 million in damages to its reputation and $1 million for malicious intent. Banro followed suit six weeks later, citing $5 million for libel (both companies claim the allegations are false). Significantly, as this goes to press, at least one of the trials is under way in Quebec.

Two years ago, Quebec enacted legislation against SLAPPs, or strategic lawsuits against public participation. These actions are difficult and sometimes dangerous to define (just identifying a suit as such can get you sued for libel), but they often have this much in common: the plaintiff is usually a large corporation suing over defamation; and the defendants are citizens, consumers, or activists who can barely afford legal advice. “A SLAPP is fundamentally abusive,” says Normand Landry, an expert on SLAPPs at TÉLUQ, l’université à distance de l’UQAM, “Both in its intentions — the plaintiffs want to quiet their political opponents — and in its judicial practice; maybe they ask for 200 experts, or ask the defendants to produce documents that are hard to obtain. The debate is no longer about whether Company X is polluting a river, but whether some activists defamed Company X by claiming it is polluting a river.” The effect is silence — even if the suit never makes it to final judgment.

It took a $5-million lawsuit by a metals company — which sued an environmental association over lost income after it stopped the unlicensed construction of a car salvage yard near the Etchemin River in eastern Quebec — to mobilize a campaign against SLAPPs. Three years and one parliamentary commission later, the Quebec National Assembly unanimously passed Bill 9, which allows judges to throw out legal proceedings they deem abusive. The defendants must file a motion proving this is so; if they cannot, then judges may force the plaintiffs to pay the defendants’ legal costs, to even the playing field. So far, Bill 9 has helped judges shut down at least four separate trials. But the Noir Canada case is the first to involve a book, and it has attracted international attention, striking a nerve with such public figures as Naomi Klein, Noam Chomsky, and Yann Martel.

The case may highlight the fact that to date Quebec remains the only Canadian province to enact anti-SLAPP legislation. In April 2001, British Columbia’s NDP enacted the Protection of Public Participation Act, but it was repealed by the provincial Liberals just five months later. In New Brunswick and Nova Scotia, private members’ bills calling for similar legislation failed to pass. Last year, an independent panel released a report to the Attorney General of Ontario that strongly supported the creation of anti-SLAPP laws, but the province has yet to act on it.

Meanwhile, other nations have surged forward. Since a landmark 2006 ruling, large for-profit companies in Australia can’t sue for defamation. In the United States, twenty-eight states have some kind of SLAPP protection, and many others are considering similar measures. California’s legislation is the most renowned; if judges find that cases have the effect of stifling public debate, they can be thrown out — and the plaintiffs can be fined.

So why is Canada so far behind? It’s all in the fine print. In the US, freedom of speech has precedence over other rights under the First Amendment. In the Canadian Charter of Rights and Freedoms, however, freedom of expression is limited by the right to protect one’s reputation. To further complicate the situation, Quebec is the sole province with its own charter that governs rights between private citizens; the federal Charter of Rights and Freedoms, by which the other provinces abide, only governs relationships between citizens and the state. Finally, SLAPPs are difficult to identify and impossible to count: Who knows how many Canadians received a threatening letter from a hotshot lawyer last year? And of all the cases that made it to court, how many were abusive? The upshot is a lack of political will; few politicians risk tackling an issue they can’t even prove exists.

In August, the Quebec Superior Court declared that Barrick’s case against Noir Canada did appear abusive, but because the book’s assertions were so damning the trial would go ahead in the fall, with Barrick Gold responsible for the defendants’ legal fees. (As of this writing, the authors are anxiously awaiting news on whether the Banro suit will be relocated from Ontario — where fewer than 100 copies of the book are circulating — to Quebec.) Regardless of the outcome, the authors have effectively been SLAPPed. “We’ve lived these suits like permanent censure,” William Sacher says. “That they even exist has obliged us to avoid expressing ourselves during public events. We’ve been constrained to a state of auto-censorship, contrary to our principles.”

The verdicts may affect all Canadians. In December, the same week the Noir Canada lawyers filed their motion for the court to declare Barrick Gold’s case abusive, Pierre Noreau, a law professor at L’Université de Montréal, published an editorial in Le Devoir. Co-signed by more than two dozen law professors from around the country, it laid out the stakes. “Behind [this case] remains a fundamental question: Can we still be critical in our society? Should power (and money) always prevail over the right to know, or at least the right to question publicly?… The future of thought rests on this case.”

SOURCE