Civil Procedure – Law is Cool http://lawiscool.com The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.6 1338880 Not all marriage licences are the same http://lawiscool.com/2014/06/02/not-all-marriage-licences-are-the-same/ http://lawiscool.com/2014/06/02/not-all-marriage-licences-are-the-same/#comments Mon, 02 Jun 2014 04:52:29 +0000 http://lawiscool.com/?p=3624 If you are planning on getting married anytime soon, then keep reading as you need to know that not all marriage licences are created equal.

By: Pagan Cheung, Paralegal Student. Published: Sun Jun 01 2014

unique-wedding-portrait-Kim-Seidl-Photography-550x366

Photo Credit: Kim Seidi Photography via Stacy & Jeff’s wedding


As according to the Star, the secret to saving for your wedding starts with the marriage licence. To begin planning for your wedding, the first thing you have to do is to obtain a marriage licence and the price is different for some Ontario municipalities.

According to the Ontario Marriage Act, municipalities are required to charge a minimum of $75 for a licence and $48 of this ends up back in the pockets of the province. Other than that, the municipalities can charge whatever administrative fees they feel are necessary to cover their expenses.

For instance, the city of Toronto charges $140 that “covers staff and infrastructure costs, including searches through historical records. The city issued 14,375 licences last year.”

Although it seems unfair that each municipality has the autonomy to charge different administrative fees as one would assume that the work involved for staff is basically the same, the statute does allow municipalities this flexibility in their differing fee schedules.

For better prices on marriage licences, couples should consider venturing into small towns in rural areas. They can purchase their marriage licence anywhere in Ontario no matter where they are living or where the wedding will take place.

Here is a breakdown of the prices for a marriage licence in Ontario.

Price list for Purchase of a Marriage Licence in Ontario Municipalities
 Ajax    $125
 Aurora    $145
 Brampton    $135
 Brock      $75
 Burlington    $145
 Caledon    $120
 Clarington    $125
 East Gwillimbury    $125
 Georgina    $100
 Hamilton    $141
 Markham    $147
 Milton    $161
 Mississauga    $140
 Newmarket    $125
 Niagara Falls    $125
 Oakville    $145
 Oshawa    $125
Toronto    $140

 

The best bargain seems to be located in the township of Brock where a marriage licence is still only the required minimum of $75 as set out in the Ontario Marriage Act.

While the drive and the cost of gas may not seem to be worth the effort for some couples, keep in mind that the licence is valid for three months from date of purchase and they can plan ahead to host their wedding near the township. While a savings of $50 may not seem like much but why not spend the money for other things, like your honeymoon?

This is exactly what many couples are doing; for instance, “Ingersoll (population of 12,000) sold 227 licences in 2013 with three-quarters of them going to out-of-town couples.”

Do you think that all Ontario municipalities should charge the same minimum rate of $75?

Please leave your comments below.


SOURCE:  Toronto Star

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Update on SLAPPs http://lawiscool.com/2011/10/18/update-on-slapps/ Tue, 18 Oct 2011 11:57:48 +0000 http://lawiscool.com/?p=3244 In response to last week’s post on the report of the Advisory Panel to the Attorney General on strategic litigation against public participation (SLAPP), one relevant case was brought to my attention. On July 20, the Superior Court of Justice released its newsworthy decision in Morris v. Johnson, 2011 ONSC 3996 (CanLII). As many of you may recall, the ire of many bloggers was incited by the plaintiff’s motion for an order requiring bloggers to disclose the identity information of anonymous defendants who had allegedly defamed her through their comments on a blog. The plaintiff was a former mayor of Aurora and the allegedly defamatory comments were made in relation to her re-election campaign After applying the three factors established in Warman v. Fournier, 2010 ONSC 2126 (CanLII), Brown J. ultimately denied this motion.

For those of you that have not read the decision, the motion reflected many of the qualities of a SLAPP.[1] As indicated in the decision, the plaintiff’s motion was without substantial merit. For example, the plaintiff did not set out the allegedly defamatory words in her statement of claim, despite being an element of the tort. The court noted that she could have obtained the verbatim defamatory statements through the impugned blog. The claim did not appear to have been brought in good faith since the identities of the anonymous bloggers may have been revealed during documentary discovery or examination for discovery yet the plaintiff did not employ those procedural steps. Like many SLAPPs, the claim was brought against individuals exercising their right to freedom of speech in relation to a political event. Notwithstanding the plaintiff’s failure in the courtroom, the SLAPP has achieved its ulterior purpose: the chilling effect on free speech by bloggers who, despite the court’s denial of the motion, may be hesitant to publicize their opinions in fear of being sued. Even after the determination of this motion, its SLAPP-like effect is ongoing with the plaintiff’s application for leave to appeal at the Ontario Court of Appeal, which is anticipated to be heard next week.

Brief Summary of the Decision

The courts have developed a body of case law which provides that the right to free speech is limited to the extent that it is abused to ruin the reputations of private citizens or individuals in public office. This case law reflects the court’s responsibility to “balance the competing interests of privacy, the public interest in promoting the administration of justice by providing [a plaintiff] with the information sought to pursue her claim and the underlying values of freedom of expression and political speech.” In other words, the courts cannot favour the interests of either plaintiffs or defendants and must avoid drawing arbitrary lines in the sand to appease one group over the other.

To fulfill that responsibility, the court applied the factors developed in Warman, which are as follows: (i) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (ii) whether the plaintiff has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (iii) whether the plaintiff  has taken reasonable steps to identify the anonymous party and has been unable to do so; and (iv) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

Brown J. applied the Warman factors to hold that the motion should not be granted. In relation to the first factor, she found that the anonymous bloggers had a “reasonable expectation of anonymity in the particular circumstances, given that they were free to identify themselves, to write under a pseudonym or remain anonymous with respect to the website, and, in this case, the anonymous [bloggers] chose to write under a pseudonym.”

The second factor was not satisfied because the plaintiff had not set forth the specific words complained of as being defamatory, and thus did not establish a prima facie case of defamation.

The third factor was also not satisfied because the plaintiff did not proceed to either documentary discovery or examination for discovery pursuant to the discovery process under the Rules of Civil Procedure, in the context of which she could have obtained those identities sought.

Finally, since the plaintiff did not establish a prima facie case, the public interest favouring disclosure did not outweigh the legitimate interests in freedom of expression and the right to privacy of the persons sought to be identified.

A Blessing in Disguise?

Although the plaintiff’s application for leave to appeal is arguably a SLAPP tactic, the granting of leave to appeal by the Court of Appeal may actually provide a benefit to the public at large. At the very least, a pronouncement by the province’s highest court will provide the public with greater insight on how the courts will approach SLAPP-like civil litigation.  This insight would be instrumental given the absence of any momentum on the part of the government to address SLAPPs. As well, a pronouncement by the Court of Appeal will circumscribe the limits on the right to free speech so to provide private citizens and individuals in public office some protection against defamation.


[1] For a definition of a SLAPP, see my previous post, available online here.

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Renewing the Debate on Anti-SLAPP Legislation in Ontario http://lawiscool.com/2011/10/06/renewing-the-debate-on-anti-slapp-legislation-in-ontario/ http://lawiscool.com/2011/10/06/renewing-the-debate-on-anti-slapp-legislation-in-ontario/#comments Fri, 07 Oct 2011 01:02:59 +0000 http://lawiscool.com/?p=3233 October 28th of this month will mark the one year anniversary of the publication of the Anti-SLAPP Panel’s Report to the Attorney General on anti-SLAPP legislation. Since then, the chatter on the issue of strategic litigation against public participation (SLAPP) appears to have died down. With the intent of renewing the debate on this issue, the following article, although long overdue, will summarize and discuss the Advisory Panel’s report.  It is hoped that the new provincial government will address the issue of SLAPPs during its four year term.

Introduction

In June 2010 the Attorney General of Ontario created the Advisory Panel to advise him on potential anti-SLAPP legislation. Arguably, this move was in response to what has been described as the “most down-and-dirty development fight in Ontario’s recent memory”.[1] After gaining approval from the Ontario Municipal Board (OMB) to build a resort and marina on the shores of Big Bay Point, a developer made a costs application for $3.2 million against a community group and its lawyers that had opposed its plans.[2] Although the OMB declined to award the developer its costs, the latter did not come away from the proceedings empty-handed. The notion of suing the lawyers of defendants to a SLAPP lawsuit sent shockwaves throughout the Ontario legal community. While the Advisory Panel was still in the process of developing its recommendations the insurer for Ontario lawyers warned its members that representing public interest groups was risky because those groups may become the target of a SLAPP lawsuit that involves great unanticipated cost consequences.[3]

Having reached that critical point, it was not a great surprise that the final report released by Advisory Panel to the public in December 2010 recommended that anti-SLAPP legislation should be created. Instead of endorsing the creation of new statutory rights to public participation and to “SLAPPback,” the Advisory Panel opted for a procedure-based approach for filtering out SLAPP lawsuits and made recommendations on the different types of provisions that should be included in the legislation.

This article reviews those recommendations with the objective of providing a “fresh set of eyes” perspective on the issue. While the Advisory Panel’s support for anti-SLAPP legislation is a sign of progress, particularly in regards to its recommendation that a special expedited procedure be created, its approach as a whole may not have the teeth necessary to address SLAPP lawsuits, especially environmental ones, in an effective manner. This article takes the position that an approach that couples substantive rights with an expedited procedure should be adopted because it would deter SLAPP lawsuits and ensure that defendants receive adequate protection, regardless of whether the litigation involves an element of government action or not.

Unlike the final report, this article will primarily focus on environmental SLAPPs because public interest groups and ordinary middle-class citizens that speak out on environmental issues tend to be the targets of SLAPPs.[4] Ordinary middle-class citizens are particularly vulnerable targets because of their personal liability, as well as their lack of financial support and ideological dedication to defend against a SLAPP lawsuit.[5] This focus on should not be taken to imply that anti-SLAPP legislation should exclusively address environmental SLAPPs, as SLAPP lawsuits are in general considered to be weapons against public participation that must be disarmed.

Part I: SLAPPS – A Weapon Against Public Participation

During the 1970s SLAPPs were recognized for the first time as a legal phenomenon in the United States. They became part of the “corporate offensive” against activism[6] in response to the increase of American citizens speaking out on environmental and other social issues.[7] This phenomenon migrated to other jurisdictions such as Canada and Australia due to a similar rise in activism. Consensus has yet to be reached on the specific elements of a SLAPP lawsuit though it is generally accepted that a SLAPP lawsuit is a civil action without substantial merit that is brought against individuals, community and public interest groups, or local government officials for communicating with government or others on issues that affect the public’s interests.[8] They can be distinguished from other meritless and retaliatory civil litigation in that they are a reaction to political action.[9] Correspondingly, SLAPPs are designed to stop citizens from exercising their political rights and punish them for doing so.

The ultimate goal of initiating a SLAPP lawsuit is not necessarily a judgement in favour of the plaintiff. In fact, the most extensive study on SLAPPs to date, which was conducted in the late 1980s, found that plaintiffs did not succeed 77-82% of the time.[10] SLAPP lawsuits primarily wreak their mischief through the litigation process.[11] The plaintiff uses the various steps in the litigation process to waste the time and drain the financial resources of the defendant. An oft-cited passage that is used to describe the function of SLAPP lawsuits is provided in the following excerpt:

SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success… The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent.[12]

The expression and dissemination of different viewpoints in civil society are necessary conditions for democracy. By chilling participation in public decision-making and policy-making SLAPPs undermine democracy. This sentiment is shared by the Panel, who also notes that it is “crucial to encourage public participation [since] as voter turnouts decline, society’s needs become ever more complex and individuals feel increasingly powerless to effect meaningful change.”[13] Civil society is further disempowered with the “privatization of public debate” that occurs when a SLAPP lawsuit transfers a public political debate to the private, sometimes confidential, forum of the courtroom.[14] In the absence of any safeguards built into legislation, the common law on torts is used to subvert the democratic process.

Plaintiffs cannot directly sue people for exercising their democratic right to participate in the political process, though they can frame those activities perceived to be contrary to their interests as torts.[15] Common torts that are used by plaintiffs include: defamation, inducing breach of contract, conspiracy, trespass, nuisance, and interference with contractual relations.[16] Examples of SLAPP lawsuits include framing boycotts as intentional interference with economic relations[17] and opposition to land development as conspiracy and inducing breach of contract[18].

Given the aggressive use of SLAPPs it is possible that statutory participatory rights such as those built into Ontario’s Environmental Bill of Rights could be undermined by the fear of retribution.[19] Lawmakers have made an effort to incorporate rights to public comment and take legal action in environmental legislation. However, the unrestrained ability of a plaintiff to frame legitimate communications or conduct as torts can make those statutory rights to public participation impotent. The lack of legislative safeguards means that SLAPPs can transform public participation in the democratic process into a risky activity that attracts liability, even when condoned by the legislature.

Part II: Summary and Criticisms of the Advisory Panel’s Recommendations

1. Purpose of the Legislation

The report of the Advisory Panel starts off on the right track with its recommendation that the legislation include a purpose clause for the benefit of judicial interpretation.[20] It recommends that the purpose of the legislation should be to “expand the democratic benefits of broad participation in public affairs and to reduce the risk that such participation will be unduly hampered by fear of legal action.”[21] The Panel explains that this formulation is desirable because it will provide the courts and litigants with notice of appropriate uses of the legislation, and by doing so, it will deter litigation that does not fall within the appropriate uses.[22] As well, a purpose clause will help litigants differentiate between SLAPPs and non-SLAPPs, the latter of which is subject to the limited remedies for traditional civil actions.[23] An effective purpose clause plays the crucial roles of interpretation and gate keeping.[24] It is for those reasons that the lack of detail in the purpose clause is troubling.

While it is conceded that the mandate of the Panel was not to develop model legislation, it should have recommended that more principles be embodied in the purpose clause for the aforementioned reasons. As well, more principles would facilitate a more focused debate in the legislature. The experience in other jurisdictions such as British Columbia and Australia has shown that draft legislation tends to be watered-down in the final product due to strenuous opposition to anti-SLAPP legislation. While the responsibility of drafting the bill lies with the legislature, the Panel still should have provided more principles to assist the former’s debate and to avoid the risk of the bill being too general in the first place, and then being watered-down in the Third Reading. Further, providing more principles will crystallize the Advisory Panel’s vision and narrow the appropriate uses of the anti-SLAPP legislation so to avoid abuse.

Existing legislation and failed bills by provincial legislatures provide a source from which the provincial government can mine for principles. For example, the purpose clause which was used in Ontario and Nova Scotia’s failed bills and B.C.’s repealed legislation stated that the two main purposes of the legislation was: (i) to encourage public participation and deter claims brought for an “improper purpose”; and (ii) to preserve access to justice for claims not brought for an “improper purpose”. In relation to the first main purpose, legislation was to provide:

  1. an opportunity… for a defendant to allege that… the proceeding or a claim within the proceeding is brought or maintained for an improper purpose,
  2. a means by which a proceeding or claim that is brought or maintained for an improper purpose can be summarily dismissed,
  3. a means by which [defendants]…may obtain reimbursement for all reasonable costs and expenses that they incur as a result,
  4. a means by which punitive or exemplary damages may be imposed in respect of a proceeding or claim that is brought or maintained for an improper purpose, and
  5. protection from liability for defamation if the defamatory communication or conduct constitutes public participation [.]

Similarly, the purpose stated in the preamble of existing legislation in Québec is to promote access to justice, prevent “improper use” of the courts, and balance the financial strength of the parties. Québec’s legislation differs from that of the other provinces because it recognizes the “importance [of] promot[ing] freedom of expression affirmed in the Charter of human rights and freedoms”, while the above mentioned trio’s legislation failed to make reference to any human rights legislation.[25] As well, the trio’s definition of “improper purpose” had an intention element while Québec’s “improper use” does not. This subtle difference in terminology has a significant effect on the operation of the legislation.

The concept of improper use reflects the scope of the legislation; the legislation is to address a broad range of litigation beyond attempts to chill public participation and applies to reprehensible legal practices that are unrelated to public participation.[26] In comparison, the concept of improper purpose is incorporated into a threshold test for accessing the protection of the trio’s legislation. By forgoing an intention requirement Québec’s legislation avoids all the problems associated with proving intention in the context of an expedited procedure.

The intention element in the trio’s legislation placed a heavy burden on the defendant to show that the “principal purpose” for which the plaintiff brought its action was to prevent or dissuade public participation. That burden is difficult to satisfy because the plaintiff may have brought the action with the principal purpose of protecting its interests. It might be difficult for defendants to have access to documents that would demonstrate the plaintiff’s intent since such documents might  be privileged.[27] Proving intent would  entailed extensive and expensive discovery.[28] More importantly, a focus on intention distracts from the key issue regarding SLAPPs: the effect on free speech.[29] The Advisory Panel was prudent in not only avoiding an intention element in its recommendation, but, as will be discussed below, it was also prudent in developing a threshold test for accessing its proposed expedited procedure that focuses on the effect of the lawsuit on public participation.[30]

While its avoidance of an intention requirement reflected a well-researched and analysed thought-process on the part of the Panel, the failure to provide a more detailed purpose clause is the primary reason why the new provincial government should not adopt the Advisory Panel’s recommendation wholesale. The other provinces’ attempts to legislate demonstrate the lack of detail in the Panel’s recommendation regarding the purpose clause. The two principles provided by the Panel should be expanded so that they include the principles outlined in the trio’s common purpose clause, but should exclude any reference to intention. The preamble in Québec’s legislation seems to reflect this recommendation, and thus is provides a convenient model to incorporate into the Panel’s recommended purpose clause.

2. The Threshold Test

As mentioned above, the Panel prudently developed an effects-based threshold test for accessing the expedited procedure.  First, the defendant must show that the plaintiff’s action involves a communication on a matter of public interest on a balance of probabilities. Second, if the defendant satisfies that burden, then the burden shifts to the plaintiff to show that: (i) its case has substantial merit; (ii) there are substantial grounds to believe that no valid defence exists; and (iii) and the harm it has suffered outweighs the harm done to the public interest by allowing the action to continue.[31] In its comments the Panel states that the expedited procedure should apply if the effect of the action is “likely to have an adverse effect on the ability of the defendant or others to participate in discussions on matters of public interest” [32] (emphasis added). The subtle sophistication of the test is reflected in its application to adverse effects on third parties’ public participation. By including the adverse effects on third parties’ public participation the Panel acknowledges the chilling effect that SLAPPs can have on the greater public.

For the purpose of assessing the merits of the threshold test recommended by the Panel, it is useful to look at an alternative threshold test called a “special motion to strike” that places the burden initially on the plaintiff. An example is provided in § 425.16 of the California Code of Civil Procedure[33], which allows for a plaintiff’s alleged SLAPP lawsuit to be struck out unless it can show that there is a probability that its claim will succeed. This test presumptively applies where the plaintiff’s action involves the right to petition or right to free speech in connection with a public issue. Due to corporate abuse of this provision the California legislature enacted § 425.17, which creates two exemptions to § 425.16. These exemptions help ensure access to justice for legitimate plaintiffs.

One exemption applies where a plaintiff brings an action solely in the public interest or on behalf of the general public, but also seeks relief greater than or different from the relief sought for the general public. As well, private enforcement of the alleged wrong must be necessary and place a disproportionate burden on the plaintiff in relation to its stake in the matter. A plaintiff that would satisfy this exemption would likely be a public interest non-for-profit or nongovernmental organization (NGO) with few financial resources. Corporate plaintiffs would be hard-pressed to show that they suffer a financial burden and are acting solely in the public interest.

The second exemption also ensures access to justice for legitimate plaintiffs. It applies where the plaintiff brings an action brought against a business for false representations made to potential customers about the former’s products or services or a competing business’ products and services.

In addition to being a feasible alternative that ensures access to justice for legitimate plaintiffs, the California provisions also seem to possess the capacity to protect common law and statutory causes of action. Individuals that have been wronged by corporate environmental infractions have initiated common law tort actions such as nuisance and trespass. The Environmental Bill of Rights provides a statutory right to bring an action for public nuisance causing environmental harm[34] or to protect a public resource[35]. Those rights could be undermined if anti-SLAPP legislation was abused. Unfortunately, the final report does not appear to explicitly address anti-abuse provisions.

The special motion to strike also has the advantage of presumptively protecting the rights to petition and free speech whereas the Panel’s test requires the defendant to prove that it made a communication on matter of public interest. As will be discussed later on, the Panel’s refusal to endorse a right to public participation explains why it places the burden on the defendant. If there was a right to public participation, then there would be no need for the defendant to prove that it made a communication on a matter of public interest. Ignoring for the moment the Panel’s justifications for not endorsing such a right, there does not appear to be any convincing reasons provided by the Panel as to why the burden in the threshold test should be initially placed on the defendant.

The Panel could have recommended that a special motion to strike apply presumptively whenever a communication on a matter in the public interest is made and provided a definition of the term “communication in the public interest”. That approach would avoid the creation of a new right and place the burden on the plaintiff initially. Further, access to justice for the plaintiff would not be negatively impacted and the parties’ interests would be balanced in a manner similar to that in the Panel’s threshold test. In a special motion to strike, the defendant’s interests would be embodied in the definition of communication in the public interests. If the plaintiff’s cause of action involved a communication on matter in the public interest, then it would have the opportunity to show that its claim is viable through pleadings and affidavits. Consistent with the Panel’s recommendation, the court would evaluate the plaintiff’s claim based on its effect on the defendant’s communications on a matter in the public interest. This exercise demonstrates that the main problem with the Panel’s test is the absence of any justification for placing the burden initially on the defendant.

3. Substantive Rights

a. A Right to Public Participation

The most disconcerting recommendation by the Advisory Panel is its explicit rejection of a statutory right to public participation. According to the Panel, such a right is unnecessary because its proposed procedure-based solution, coupled with existing rights, are sufficient to address SLAPP lawsuits. The Panel states:

Canadians’ constitutional freedom of expression, and the recognized importance of constitutional values for the development of the law applicable in civil litigation, provide a firm foundation for the procedural remedy recommended in this Report… [This remedy] will better protect and promote freedom of express on matters of public interest while having regard to the values at stake on both sides of cases involving such expression.[36]

The main criticism of the Panel’s position is that the constitutional right to freedom of expression outlined in s. 2(b) of the Charter of Rights and Freedoms [37]  does not apply litigation between private parties.[38] In Dolphin Delivery Ltd v RWDSU, Local 580 the Supreme Court of Canada (SCC) held that the Charter applies where there is an element of government action.[39] Since the Charter does not apply to litigation between private parties there appears to be no protection for defendants against private plaintiffs.  The Panel’s reliance on the judiciary’s duty to develop the common law in a manner consistent with the Charter neglects the requirement that any such development must not upset balance between judicial and legislative action.[40]  No explanation is provided to address these issues, and yet the Panel is willing to find without reservation that a right to public participation is unnecessary.

The inapplicability of constitutional protections to litigation between private parties seems to be indirectly addressed via the Panel’s recommendation that one of the threshold tests for accessing the proposed procedure-based remedy should be whether the communication is on a matter of public interest.[41] If the defendant can show that the subject of the lawsuit against it involves a communication on a matter of public interest on a balance of probabilities, then the burden will shift to the plaintiff to satisfy the aforementioned three-part test.[42] The Panel also recommends that the new procedural remedies should apply to a broad scope of activities regardless of whether an activity involves public or private forums of discussion.[43] By framing the issue in terms of whether a communication on a matter of public interest and erasing the distinction between public and private forums, the Panel is attempting to create the perception that the distinction between governmental and private litigation is not a problem.

Regardless of how the Panel frames the issue, the problem of different treatment for defendants between governmental and private litigation still persists. Defendants involved in litigation with a private party will not have the benefit of the Charter’s protections. That argument is not meant to imply that a right to public participation should be constitutionalized so that the same protections exist in governmental and private litigation. Instead, it is meant to highlight the disparity in protection and different burden that a defendant in non-governmental litigation must endure. Instead of shielding itself with a positive right to public participation, the defendant must show that its communication is on a matter of public interest. As above, the Panel does not justify why the defendant should carry that burden. A statutory right to public participation would allow for parallel protection as well as avoid the issue of which party must carry the burden.

The advantages of a statutory right should not be taken to imply that the expedited procedure proposed by the Panel should not be adopted. On the contrary, there is support for coupling the procedure with a statutory right to public participation. In a article referred to by the Panel, Susan Lott from the Public Interest Advocacy Centre supports the creation of a right to public participation. She supports an approach that involves an expedited procedural process, which is consistent with the Panel’s recommendations, but goes further by advocating for a right to public participation.[44] Lott explains that legislation that involves procedural and penalty considerations only work if there is a clear way to identify a SLAPP lawsuit like creating a right to public participation.[45] The latter “would provide the courts with direction to assess the facts of the case in the context of determining the impact of the lawsuit on the defendant’s right to express and exercise their democratic rights.”[46] In agreement, Chris Tollefson, a leading Canadian scholar on the issue of SLAPPs, argues that the right should have a broad scope so that it encompasses the variety of ways that citizens participate directly or indirectly in the processes of government.[47] He also argues that the right should protect communication to all levels of government on matters of public policy as well as communications directed at the public at large.[48]

Despite tremendous support for a statutory right in academic circles, lawmakers in various jurisdictions have yet to create such a right. To understand their reluctance to do so, one must look to the experiences of jurisdictions that enacted anti-SLAPP legislation.

b. British Columbia’s Failed Experiment with Anti-SLAPP Legislation

Possible explanations for the Advisory Panel’s reluctance to endorse the creation of a right to public participation are provided by a review of B.C.’s experience of anti-SLAPP legislation. After the first bill proposed by the government, Bill 29, was found to be too extreme, a second, more watered-down bill was proposed. The fierce debate over the proposed legislation influenced the government to ultimately enact the latter, which vainly attempted to create a compromise between the competing factions involved.

When Bill 29 was proposed in 2000 the provincial government was receptive to anti-SLAPP legislation based on then-Premier Ujjal Dossanjh’s perception of the need to gain public support by prioritizing environmental and community interests.[49] Opposition came from two fronts: business and industry interests coupled with the criticisms of the Liberal Party of Canada. Given the slew of environmental disputes between developers and environmental groups in B.C., it was no surprise that industry and business groups opposed the legislation. Political opponents criticized the proposed legislation based on their view that SLAPPs were not a problem that required legislation and that existing procedural remedies were capable of addressing SLAPPs.[50] As well, they argued that legislation would preclude access to justice by plaintiffs and could be subject to abuse.[51] Bill 29 ultimately died on the legislative table and a new bill was proposed. The substantially different Bill 10 ultimately passed Third Reading and the Protection of Public Participation Act was enacted by the B.C. legislature in April 2001. Political and private interest opposition influenced the government to reach a compromise that essentially watered-down the legislation.

The critical difference between the two bills is that Bill 29 contained a statutory right to public participation. Section 2(1) of the bill stated that “a person may make any communication or engage in any conduct if the communication or conduct is genuinely aimed at promoting or furthering lawful action by the public or by any government body in relation to an issue of public interest.” Unprotected communication or conduct is that which resulted in property damage or physical injury, was in breach of any law or court order, or is considered by a court to be an unwarranted inference with a person’s property or rights.[52] This right would have provided a complete defence to a SLAPP lawsuit, while its exceptions would have maintained the court’s “discretion to refuse protection to behaviour that overstepped the bounds of what would be considered reasonable in a democratic society.”[53] However, the aforementioned criticisms influenced the lawmakers to bow to the multitude of competing interests. The content of the resulting legislation demonstrates the consequence of governments attempting to appease all of the interested stakeholders above the greater public interest in addressing a legal problem: a watered-down legislative regime that does nothing to change the status quo.

c. Australia’s Experience with Anti-SLAPP Legislation

Australia’s experience with anti-SLAPP legislation parallels that of B.C. Similar to B.C.’s experience, a bill that included a right to public participation was proposed in the Australian Capital Territory (ACT).  Bill 40 established a right to public participation that was tailored to exclude from its protection activities outside legal democratic activity such as property damage.[54] A lawsuit would be summarily dismissed where the defendant showed that its activity was a legitimate act of public participation.[55] However, like its B.C. counterparts, the ACT lawmakers ultimately rejected a substantive rights approach for a procedural one.

Like the Canadian trio’s legislation, the resulting Protection of Public Participation Act 2008 used an “improper purpose” threshold test to filter out SLAPPs.[56]  Like the trio’s definition of improper purpose, the ACT’s legislation imposed the onerous burden of satisfying intention and primary purpose requirements.[57] In a similar fashion, the legislation was watered-down in response to fierce opposition that echoed the criticisms that were raised in B.C. The Australian experience with SLAPP legislation reinforces the effect that pandering to a multitude of competing interests can have on the content of legislation.

The experiences in B.C. and Australia demonstrate one of the many ironies of the legal system. While democracy is reflected in the legislative process through the expression of the competing interest groups’ viewpoints, it is not necessarily engendered in the content of the resulting legislation. Specifically, in both of these jurisdictions, a proposed right to public participation that would have protected activities that facilitate the democratic process was deleted out of legislative bills after lawmakers bowed to the opposition’s pressure. Although democratic decision-making necessarily entails the consideration of a variety of viewpoints, the lawmakers seemed to have forgotten that the means of democracy do not necessarily entail compromise. There are some circumstances where the means of democracy such as a right to public participation need to be established so that a variety of viewpoints can be raised throughout civil society. In other words, a right to public participation would facilitate and reinforce the expression of various viewpoints in various contexts. By successfully advocating for the exclusion of the right, the opposition was able to express its viewpoint, but the greater public was hindered in its overall ability to do so because of the exclusion of the right from the resulting legislation. The failure to perceive this relationship means that the Advisory Panel is perfunctorily following in footsteps of its peers towards a situation where democracy does not function properly.

d. A SLAPPback Right

One issue that the Advisory Panel cannot be said to have replicated is that of a SLAPPback right because its report does not even address it. A SLAPPback right is a “countersuit in which targets [of a SLAPP lawsuit]… sue the filers for injuries and losses caused by the SLAPP.”[58] Penelope Canan and George W. Pring concede that it is ironic that “the cure [to a SLAPP lawsuit] is a dose of the same disease”, but maintain that SLAPPbacks are different from SLAPPs. Writing from an American perspective, they argue that a SLAPP lawsuit is an abuse of the court system, a violation of constitutional rights, and an unconstitutional effort to chill public participation.[59] In comparison, SLAPPbacks are an acceptable use of the court system because they defend constitutional rights and create accountability for filers that cause injuries to others.[60] They address situations where the defendant receives a costs award for its legal expenses yet is uncompensated for bad faith or abuse of process by a plaintiff.[61] Finally, many American scholars have endorsed SLAPPbacks based on the deterrent effect they have on the initiation of SLAPP lawsuits.[62]

There are different approaches to the content of a SLAPPback provision. Tollefson suggests a provision that allows the defendant to recover costs as well as actual and punitive damages for bad faith or abuse of process by the plaintiff without having to initiate a separate claim for abuse of process.[63] In some U.S. states defendants must exercise the SLAPPback either in a separate claim or as a cross-claim or counterclaim in the original proceeding.[64]

An example of one jurisdiction that adopts the latter approach is the State of New York. According to §70-a(2)(a) of the Civil Practice Rules, a defendant that seeks costs and legal fees must show that the SLAPP action lacked substantial basis in fact and law, and cannot be supported by a “substantial  argument  for  the  extension, modification or reversal of existing law”.[65] Other compensatory damages may be recovered if the defendant shows that the action was commenced “for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.”[66] The defendant may also be able to recover punitive damages if the action was commenced solely for any of the aforementioned purposes.[67] This type of provision is superior to existing tests located in the Ontario Rules of Civil Procedure because it explicitly addresses the nature of SLAPPs. While opponents to anti-SLAPP legislation argue that civil procedure rules provide an existing, albeit unexploited, remedy to SLAPPs, it has been conceded by many that, in practice, the scope of those rules are too limited to address SLAPPs.[68] Further, a SLAPPback has a deterrent effect while subsidiary claims provided for in provincial rules of civil procedure do not.

4. Expedited Procedure

The main thrust of the Advisory Panel’s approach to anti-SLAPP legislation is a special expedited procedure that would address the mischief that SLAPPs wreak through the various steps of the litigation process. It maintains this position despite big business’ arguments that existing law offers satisfactory remedies against abusive litigation.[69] In B.C. and Australia the same argument was raised by big business and the law society, respectively. However, like its counterparts in those jurisdictions, the Panel recognizes that an expedited procedure will make it easier and cheaper for defendants to challenge SLAPPs.

The expedited procedure proposed by the Advisory Panel addresses the shortcomings in existing procedural rules by providing for short timelines and reduced evidentiary requirements via motions for relief and appeal. In its recommended procedure, the defendant shall be allowed to serve on the plaintiff notice for relief accompanied by affidavit evidence.[70] Then the plaintiff has fourteen days to respond to the motion by filing affidavit evidence.[71] Out of court cross-examination of the affidavits by the parties is to occur within seven days after the plaintiff delivers its affidavit evidence.[72] Further, there is a one day maximum for each side to conduct cross-examination.[73]

At least three days prior to the hearing of the defendant’s motion, factums are to be delivered.[74] The actual motion is to be heard within sixty days of the filing.[75] The Advisory Panel’s expertise is reflected in its clever recommendation that the plaintiff be barred from taking any further step in the SLAPP proceeding until the defendant’s motion is decided.[76] This recommendation prevents the plaintiff from undermining the efficiency of the expedited process by engaging in other tactical steps. The process balances the integrity of the process with access to justice for the plaintiff with the exception that the latter may apply for an injunction where serious harm has occurred or there is a threat of serious harm.[77]

The consequences of the motion reflect deterrence against filing SLAPP lawsuits. The most obvious deterrent is the dismissal of cases that fail to meet the public participation test discussed above. Other benefits of dismissal include awarding full indemnity costs to the defendant[78] and a presumption that the pleadings cannot be amended.[79] As well, the defendant could receive damages where the court finds bad faith or improper motive on the part of the plaintiff.[80] These components of the expedited procedure establish the foundation for a potentially effective deterrent effect. Unfortunately, these components are only procedural in nature. They can filter out SLAPP lawsuits but they do not go far enough.

A filtering mechanism does not proactively prevent SLAPPs; it still allows them to function, albeit in a reduced capacity, by giving the plaintiff access to the courts. Defendants require a positive right to public participation that insulates their lawful conduct and communication from challenge. That right, in conjunction with the procedure proposed by the Panel would serve as a comprehensive mechanism for deterring SLAPPs

5. Costs

Another component of a comprehensive mechanism for deterring SLAPPs is special rules for advance cost orders. The Panel acknowledges that common law advance cost orders for matters of public interest are rare, though refuses to endorse statutory provisions providing for them because of its belief that the speed of the procedure coupled with full indemnity costs for successful defendants will be an effective remedy for the imbalance of resources between the parties.[81] These short timelines and reduced evidentiary requirements will counteract some of the damage-inflicting components of SLAPPs.

A potential weakness of the Panel’s approach to cost awards is that cost awards in general can be ineffective in deterring SLAPPs. Costs awards, even full indemnity costs, are perceived to be a cost of doing business for large corporate plaintiffs.[82]  As well, the requirement that a defendant be successful in its motion for relief in order to access those full indemnity costs may be impractical in light of the lack of accessible advance cost orders. If a defendant lacks crucial financial resources during the actual proceedings, then the likelihood of its success is significantly reduced. The speed of the proceedings will alleviate the overall time and financial resources considerations, but a quick proceeding that is ill-defended will not serve to remedy the financial imbalance between the parties when it really matters. Even more damaging to the Panel’s position is the observation by Sharon Beder that if a defendant cannot afford legal counsel, then it may lose for not following the proper procedure.[83] At the risk of underestimating the capabilities of self-represented defendants, it must be acknowledged that the latter may not understand the proposed expedited procedure regardless of its relative simplicity.

6. Funding

The Panel does not make any recommendation about the funding for defendants,[84] it does make some related comments that are worthy of criticism. First, it states that the prospect of a full indemnity award could encourage legal counsel to represent defendants on a contingency fee.[85] While there is willingness for some legal counsel engage in contingency fee arrangements, the Panel seems to have forgotten the effect of the notorious application for $3.2 million in costs at the OMB that extended to the defendants’ lawyers. Coupled with the recent confirmation by the insurer for Ontario lawyers that SLAPPs present the risk of large unanticipated cost consequences, it is reasonable to expect that some lawyers will be deterred from taking on clients notwithstanding the possibility of a full indemnity award. The Panel’s comment appears to be naive in light of these recent events.

Second, the Panel’s “hope” that its expedited procedure and remedies will reduce the need for a legal aid fund for impecunious defendants may not pan out. [86] In all fairness to the Panel, it does state that a fund would be “attractive” but at the same time, recognizes that “public money is scarce”.[87] The Panel adds that it lacks the expertise to address this issue and that the matter is properly within the government’s responsibility. While these conclusions are proper for the Panel to make, the Panel could have addressed alternative sources of funding for a legal aid fund.

For example, the plaintiff with an illegitimate claim could be required to repay the amount of money that the defendant had to request from a fund that is initially established by government or private funding. In the alternative, the entire fund could be self-funded by unsuccessful plaintiffs for the use of future defendants.  These suggestions demonstrate that there are several creative recommendations that the Panel could have made, and yet failed to, in order to address the issue of funding of legal aid for impecunious defendants.

7. Personal Liability for Directors and Officers

The Panel’s recommendation regarding personal liability for directors and officers for costs and damages leaves a lot to be desired. This issue is relevant in the context of a plaintiff corporation that has insufficient assets or is judgement proof. The Panel notes that personal liability for directors and officers would require processes similar to that in corporate law. It states that “[s]ome method might have to be found to record directors’ dissent from the decision to sue, to avoid penalizing those who have opposed the commencement of the action found to have been unmeritorious.”[88] Since such a method would be “unduly complex and unnecessary to provide a full remedy for the defendant”[89], the Panel does not recommend personal liability for directors and officers.

The Panel’s position is untenable given that corporate law statutes already adequately address personal liability for directors and officers in other contexts. For example, in corporate law statutes an individual director may not be held personally liable for a decision of the majority of the board where he or she registers his or her dissent.[90] There are also provisions that address corporate governance issues such as the standard of care and defences for directors, as well as indemnification and insurance for both directors and officers. Unless there is some reason why plaintiffs that initiate SLAPP lawsuits would be excluded from the application of corporate law statutes then it is unclear why the Panel considers this issue to be so difficult to address that it refuses to recommend personal liability for directors and officers. Closer scrutiny of existing corporate law statutes may reveal to the Panel that it is unnecessary to exclude personal liability provisions when there may be existing legislation to either deal with the intricacies of this issue or act as a model for developing anti-SLAPP legislation.

Given that the Panel did not recommend personal liability for directors and officers, and thus did not provide any suggestions as to the type of statutory language that would be used in such a provision, it is useful to look to existing provisions for guidance. In the Code of Civil Procedure of Québec s. 54.6 states:

If a legal person or an administrator of the property of another resorts to an improper use of procedure, the directors and officers of the legal person who took part in the decision or the administrator may be ordered personally to pay damages.

As mentioned above, the use of the “improper use” device is problematic given the difficulty of proving intention and primary purpose of the plaintiff was to deter public participation. Further, there does not appear to be any discretion for the court to exercise in s. 54.6 where the plaintiff has sufficient assets. If that is the case, then it may be unnecessary for a successful defendant to turn to the directors and officers. The advantage of s. 54.6 is that it somewhat addresses the Panel’s concern about holding directors and officers personally liable where they dissented to a decision of the majority of the board through the requirement that the person take part in the decision. Section 54.6 also demonstrates that one legislature was able to navigate through the perceived complexity of personal liability and directly legislate on the issue.

8. Qualified Privilege

The Panel’s recommendation in favour of a statutory defence of qualified privilege to the tort of defamation is suitable for anti-SLAPP legislation in Ontario, though with some caveats. In order to explain these caveats, the common law on qualified privilege must first be explained. Qualified privilege is a defence the tort of defamation. The latter is a “strict liability” tort, in that it can be proved in the absence of intention to do harm when three requirements are satisfied:

  1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
  2. that the words in fact referred to the plaintiff; and
  3.  that the words were published, meaning that they were communicated to at least one person other than the plaintiff.[91]

Once the plaintiff satisfies all three requirements, the burden then shifts to the defendant to assert the defence. Qualified privilege only attaches to the occasion upon which the communication is made, and not to the communication itself.[92] In Hill v. Church of Scientology of Toronto the Supreme Court of Canada quoted the following passage from the House of Lord’s decision in Adam v. Ward[93] to explain the difference:

a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.[94]

By focusing on the occasion on which the communication is made, the defence ensures that communications that benefit the greater good of society are made freely. If the occasion is privileged, then the communication is presumed to be bona fide and thus can be freely published with impunity. However, the privilege is “qualified” and not absolute; the privilege can be defeated if the defendant acted with malice.

In light of the key role that qualified privilege plays in protecting communications that promote the well-being of society, the Panel recommends that a statutory version of the defence be included in the legislation. The statutory defence would apply “where a person with a direct interest in a subject of public interest makes statements on that subject to persons who have a direct interest in that subject.”[95] Like its common law counterpart, the defence would be defeated by proof of malice. As well, the communication must be made between people that have an interest in the matter. This requirement of common interest or “reciprocity” is particularly attractive to the Panel, who uses it to justify the wholesale adoption of the common law formulation of the defence. Freedom of expression in favour of the defendant is balanced by the circumscription of the scope of the defence through the direct interest requirement. Correspondingly, the Panel is able to achieve its mandate of creating a balanced response to SLAPPs.

Notwithstanding the benefits of this balanced response, the wholesale adoption of the common law formulation of the defence may be problematic in the context of environmental matters. In particular, the requirement that the defendant have a direct interest seems at odds with case law on public interest standing in relation to environmental matters. Specifically, the case law indicates there is judicial willingness to consider NGOs that lack proximity to the matter to have a direct interest.

A case in point is the decision of MiningWatch Canada v Canada (Minister of Fisheries & Oceans).[96] MiningWatch sought to challenge a decision regarding an environmental assessment of a mining project, but the issue arose whether it had standing. The latter was an issue because s. 18.1(1) of the Federal Courts Act states that an application for judicial rule may be made by “anyone directly affected by the matter in respect of which relief is sought”[97] (emphasis added). The Federal Court held that the phrase “directly affected” should not be given a narrow meaning so to restrict the pool of applicants for judicial review of a federal administrative decision-maker. In exercising its discretion to grant standing, the Court noted that the purpose of the Canadian Environmental Assessment Act was to ensure that timely and meaningful public participation and consultation occurs in relation to projects that require an environmental assessment. In circumstances where a NGO and not local citizens apply for standing, a court will consider whether the applicant has a “long standing reputation and … must do significant work on the subject-matter of the challenge, and its interest must be greater than that possessed by a member of the general public”.[98] The Court’s grant of standing to a NGO seeming to have no direct interest in the matter in MiningWatch demonstrates judicial willingness to facilitate public participation, notwithstanding the lack of immediate interest in environmental matters. There is recognition that in the absence of local representation, there would be no one to advance the public’s interest in environmental matters without the involvement of NGOs.

Caselaw on NGO public interest standing is relevant to qualified privilege because it indicates that the Panel’s requirement for a direct interest may be unduly restrictive. These organizations, which have taken on a leadership role on environmental issues, will be excluded from the protection of the statutory defence in the absence of a direct interest. As indicated in the MiningWatch decision, it is harsh to deny this defence when there does not appear to be any one from the community to advance the public interest. Especially since the financial toll and waste of resources associated with SLAPPs can deter individuals from communicating on issues that are directly interested it, it seems counterintuitive to create a statutory defence that ignores that effect. It is for that reason that the balance that the Panel wishes to achieve in a statutory defence may not in fact be achieved effectively.

Conclusion

The current provincial government has taken the first step towards disarming weapons against public participation with the creation of the Advisory Panel. Now that the latter has fulfilled its mandate, the responsibility rests with the new provincial government to assess which of the Panel’s recommendations are suitable and to take the initiative to legislate in a creative and effective manner. This article has attempted to facilitate that process by reviewing and making recommendations. Having completed this “fresh eyes” review of the recommendations, it is concluded that the Panel’s blueprint for anti-SLAPP legislation provides some of the basic elements of anti-SLAPP legislation, but is in need of substantial revision on key issues.

The basic criticism of the recommendations is that it lacks the teeth necessary to deter SLAPPs. While an expedited procedure for SLAPPs would undermine the damage-inflicting components of SLAPPs, which are to waste the resources of defendant, there is glaring lack of substantive rights that would affirmatively protect public participation. Cutting down on the cost and time for adjudicating SLAPP lawsuits will not necessarily deter plaintiffs when litigation is seen as a cost of doing business. It is for that same reason that full indemnity cost awards for successful defendants will not effectively combat SLAPPs alone. The only way to truly disarm SLAPPs is to couple the expedited procedure proposed by the Panel with substantive rights. Among other optional rights, a right to public participation is necessary to create a safe space for the dissemination of a variety of viewpoints in civil society. Without such right, the public participation in issues of public concern will continue to decrease and the democratic process will become an institution for advancing corporate interests over that of the public good.


[1] Jeff Gray, “Ontario looks to smack down SLAPPs”, The Globe and Mail (6 July 2010) online: The Globe and Mail <http://www.theglobeandmail.com>.

[2] Kimvar Enterprises Inc. v Nextnine Limited (30 January 2009), OMB PL050290, online: OMB  <http://www.omb.gov.on.ca>.

[3] Norman MacInnes, “Practice Pitfalls” (2010) 9:2 LawPRO 1 at 3, online LawPRO <http://www.practicepro.ca/default.asp>.

[4] Sheila R Foster, “Public Participation” in Michael B Gerrard &  Sheila R Foster,  eds,  Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks (Chicago: ABA Publishing, 2008) 225 at 247.

[5] Sharon Beder, Global Spin: The Corporate Assault on Environmentalism (Vermont: Chelsea Green Publishing Company, 1997) at 69.

[6] Rob White, “Stifling Environmental Dissent” (2005) 30:6 Alternative LJ 268 at 268.

[7] Supra note 5 at 64.

[8] British Columbia, Ministry of the Attorney General of British Columbia, Developing a Response to Strategic Lawsuits Against Public Participation in British Columbia, (2000) at 3.

[9] Penelope Canan & George W Pring, SLAPPs: Getting Sued for Speaking Out (Philadelphia: Temple University Press, 1996) at 8.

[10] Pamela Shapiro “SLAPPs: Intent or Content? Anti-SLAPP Legislation Goes International” (2010)19:1 Rev of European Community & International Environmental Law 14 at 14.

[11] Samantha Brown & Mark Goldowitz, “The Public Participation Act: A Comprehensive Model Approach to End Strategic Lawsuits Against Public Participation in the USA” (2010) 19: 1 Rev of European & International Environmental Law 3 at 4.

[12] Gordon v Marrone 590 NYS (2d) 649 at 656 (1992).

[13] Ontario, Anti-SLAPP Advisory Panel, Report to the Attorney General (2010) at para 44 (Chair: Mayo Moran), online: AGO  <http://www.attorneygeneral.jus.gov.on.ca>.

[14] Supra note 5 at 66.

[15] Ibid at 64.

[16] Michaelin Scott and Chris Tollefson, “Strategic Lawsuits Against Public Participation: The British Columbia Experience” (2010) 19: 1 Rev Of European & International Environmental Law 45 at 46.

[17] Daishowa v Friends of the Lubicon (1998), 39 OR (3d) 620 (Gen Div) (QL).

[18] Fraser v Saanich (District) (1999), 5 MPLR (3d) 80 (BCSC) (QL).

[19] Environmental Bill of Rights,1993, RSO 1993, C-26 ss 15(1),16(1), 21(1).

[20] Supra note 13 at para 18.

[21] Ibid.

[22] Ibid, at para 17.

[23] Ibid.

[24] Supra note 16 at 50.

[25] Québec, Code of Civil Procedure, RSQ c C-25, Preamble to s 54.1.

[26] Supra note 10 at 55.

[27] Ibid, at 43.

[28] Ibid, at 25.

[29] Greg Ogle “Anti-SLAPP Law Reform in Australia” (2010) 19:1 Rev Of European Community & International Environmental Law 35 at 35. See note 12 at note 42; note 11 at 25.

[30] Supra note 13 at para 35.

[31] Ibid, at para 38.

[32] Ibid, at para 35.

[33] California Code of Civil Procedure, Cal CCP.

[34] Environmental Bill of Rights, 1993, SO c 28, s 103(1).

[35] Ibid, s 84(1).

[36] Supra note 13 at para 27.

[37] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 2(b), [Charter].

[38] Chris Tollefson, “Strategic Lawsuits Against Public Participation: Developing a Canadian Response” (1994) 73:2 Can Bar Rev 200 at 224.

[39] RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573 at para 33 (QL).

[40] R v Salituro, [1991] 3 SCR 654 at para 48 (QL).

[41] Supra note 10 at para 29.

[42] Ibid, at para 38.

[43] Ibid, at para 29.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Supra note 11 at 230.

[48] Ibid.

[49] Supra note 8 at 49.

[50] Supra note 16 at 50.

[51] Ibid, at 51.

[52] Bill 29, Protection of Public Participation Act, 4th Sess, 36 Leg, British Columbia, 2000, s 2(2).

[53] Supra note 8 at 53.

[54] Supra note 29 at 40.

[55] Ibid, at 41

[56] Ibid.

[57] Ibid.

[58] Supra note 5 at 168.

[59] Ibid.

[60] Ibid.

[61] Supra note 11 at 232.

[62] Supra note 5 at 168–87. See also supra note 6 at note 56.

[63] Supra note 11 at 232.

[64] Supra note 13 at note 56.

[65] Actions Involving Public Petition and Participation, NY CIV RIGHTS § 70–a(a).

[66] Ibid, § 70–a(b).

[67] Ibid, § 70–a(c).

[68] Supra note 4 at para 11.

[69] Supra note 13 at para 9.

[70] Ibid, at para 41.

[71] Ibid.

[72] Ibid.

[73] Ibid.

[74] Ibid.

[75] Ibid.

[76] Ibid, at para 42.

[77] Ibid.

[78] Ibid, at para 44.

[79] Ibid, at para 45.

[80] Ibid. at para 46.

[81] Ibid, at para 51.

[82] Chris Tollefson, “Strategic Lawsuits and Environmental Politics: Daishowa Inc. v. Friends of the Lubicon” (1996) 31:1 J of Can Studies at 121.

[83] Supra note 5 at 69.

[84] Supra note 13 at para 50.

[85] Ibid, at para 44.

[86] Ibid, at para 50.

[87] Ibid.

[88] Supra note 13 at para 53.

[89] Ibid.

[90] Section 135(1) of the Ontario Business Corporations Act requires a director to register his or her dissent or be deemed to have consented to a decision of the board.

[91] Grant v Torstar Corp, 2009 SCC 61 at para 28.

[92] Ibid, at para 141.

[93] Adam v Ward, [1917] AC 309 (HL) at 334.

[94] [1995], 2 SCR 1130 at para 143.

[95] Supra note 13 at para 74.

[96] MiningWatch Canada v Canada (Minister of Fisheries & Oceans), [2007] FCJ No 1249 (QL) [MiningWatch].

[97] Federal Courts Act, RSC 1985, c F-7, s 18.1(1).

[98] MiningWatch, supra note 96 at para 179.

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How not to sue Dragons’ Den http://lawiscool.com/2011/08/31/how-not-to-sue-dragons%e2%80%99-den/ http://lawiscool.com/2011/08/31/how-not-to-sue-dragons%e2%80%99-den/#comments Thu, 01 Sep 2011 01:15:48 +0000 http://lawiscool.com/?p=3214 Every time I see the Dragons belittle a sweating contestant from their raised TV studio platform that reminds of Olympus I catch a breath. It’s not Jerry Springer but what if one of the scorned pitchers loses it and throws his heavy business idea right at a Dragon’s head? Thankfully, I’ve never seen such a sight, but at least one unlucky show participant did sue the CBC for defamation after a particularly nasty broadcast. His litigation imploded at the summary judgment motion teaching us something about both the defamation law and the inner workings the famous TV show.

In his judgment, Justice Lofchik summarized well what happened between the plaintiff, Mr. Turmel, and the CBC. A Dragons’ Den producer recruited Turmel for his public speaking skills. No business idea was on the table at that time. Turmel signed a bulletproof consent and release. Then his unsuccessful pitch for “a local currency system for Brantford, Ontario” was taped on May 31, 2009. Dragons showed no mercy. Nine months later, the CBC broadcast Mr. Turmel’s pitch in a one-minute version. A week later, he sued the CBC for defamation.

The CBC brought a summary judgment motion. The rule for summary judgment is that “there is no genuine issue requiring a trial with respect to a claim or defence.” Summary judgment is serious because it deprives one or more parties to a lawsuit of a trial. But if there is no doubt about the outcome of a trial, the court should grant summary judgment to save everyone’s time and money.

The first issue at the motion was Mr. Turmel’s failure to notify the CBC of the alleged defamation in writing within six weeks of seeing the broadcast. Ontario’s Libel and Slander Act bars any claim for “libel in a newspaper or in a broadcast” if the plaintiff didn’t do that. Even serving a statement of claim a week after the broadcast didn’t help Mr. Turmel. The purpose of the written notice is to give the alleged defamer a chance to apologize and correct the record. The courts have held that you cannot expect a defendant to have such an opportunity once the litigation took off. If Mr. Turmel’s claim was for defamation, his ignorance of the (rather arcane) law killed his case.

The second issue was Mr. Turmel’s argument that his case was not only for defamation but also for breach of contract. If he was right, the Libel and Slander Act didn’t bar at least some of his claim. He was wrong. The judge held that even though “one might also glean the suggestion of a claim for breach of contract,” Mr. Turmel signed a rock-solid consent and release that was the whole contract between him and the CBC. Mr. Turmel wasn’t a vulnerable party deserving special treatment, and he could have consulted a lawyer when he signed the deal. The agreement was that the CBC could pretty much show or not show anything taped in exchange for giving him a chance to pitch to the Dragons.

So a procedural misstep in the defamation claim and a failure to plead another real cause of action caused Mr. Turmel to lose this summary judgment motion. Consulting a defamation lawyer could certainly have helped him, but who knows, maybe Mr. Turmel will launch a second salvo in his war with the CBC by pleading another cause of action. But which one?

Pulat Yunusov is a Toronto litigation lawyer.

 


(Post sponsored by AdviceScene)

 

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Julian Assange: Why the world needs WikiLeaks http://lawiscool.com/2010/12/11/julian-assange-why-the-world-needs-wikileaks/ Sat, 11 Dec 2010 19:14:59 +0000 http://lawiscool.com/?p=3042 For video click here

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Excerpts from Open Letter to the Head of Judiciary: the Islamic Republic of Iran re the imprisonment of 7 Iranian Baha’is on baseless and unproved charges and other human rights violations of followers of Iran’s largest religious minority http://lawiscool.com/2010/12/10/excerpts-from-open-letter-to-the-head-of-judiciary-the-islamic-republic-of-iran-re-the-imprisonment-of-7-iranian-bahais-on-baseless-and-unproved-charges-and-other-human-rights-violations-of-followe/ http://lawiscool.com/2010/12/10/excerpts-from-open-letter-to-the-head-of-judiciary-the-islamic-republic-of-iran-re-the-imprisonment-of-7-iranian-bahais-on-baseless-and-unproved-charges-and-other-human-rights-violations-of-followe/#comments Fri, 10 Dec 2010 21:52:27 +0000 http://lawiscool.com/?p=3044 7 December 2010

BAHÁ’Í

INTERNATIONAL

COMMUNITY

UnitedNationsOffice

866UnitedNationsPlaza, Suite120, NewYork, NY10017USA

Telephone: 212-803-2500, Fax: 212-803-2566, Email: uno-nyc@bic.org

Ayatollah Mohammad Sadeq Larijani

Head of the Judiciary

Islamic Republic of Iran

Your Honor,

You are undoubtedly aware of the outcome of the trial and the subsequent appeal of Mrs. Fariba Kamalabadi, Mr. Jamaloddin Khanjani, Mr. Afif Naimi, Mr. Saeid Rezaie, Mrs. Mahvash Sabet, Mr. Behrouz Tavakkoli, and Mr. Vahid Tizfahm—the seven individuals who before their arrest were responsible, as the members of the group known as the Yaran, for administering the social and spiritual affairs of the Bahá’í community in Iran…

Alongside their professional pursuits and family duties, they have rendered, on a purely voluntary basis, distinguished service to the people of that land, as, for example, in the advancement of women, in the promotion of literacy among the country’s general population, and in the provision of the means of education for the thousands of Bahá’í youth who have been denied admission to Iranian universities since the inception of the Islamic Revolution.

Convinced that they had committed no wrong, and as there existed no proof whatsoever to support the accusations leveled against them, they had every hope that the judicial proceedings would exonerate them.  Sadly, however, their hopes have thus far been frustrated, and the treatment they have received has unjustly violated every legal norm and every standard of fairness and equity.  As history bears witness, whenever innocent citizens are brought before show trials, it is the judicial system itself and those who wield authority within it that are on trial before the public gaze.  The case of these seven individuals, which from the outset has been watched with growing interest by Iranians and non-Iranians alike, has been marked by such egregious violations of the law at every turn as to call into question the adherence to the principle of justice by a system that claims to uphold Islamic values.

The blatant injustice of a sentence to ten years’ imprisonment handed down to such honest and law-abiding citizens impels us, as the representatives at the United Nations of one hundred and eighty-six national Bahá’í communities, to ask you to rectify this grave failure and accord the defendants the justice they have been denied…

The officials of the Ministry of Intelligence, resorting to many reprehensible measures—illegal detention, denial of proper access to legal representation, interrogation methods that contravene standards of civilized behavior and aim to extract false confessions—all of which transgress even the current law of the land, exerted every effort to build a case against them.

Despite this, the prosecutors were ultimately unable to present any credible evidence in support of their claims.  Instead, what was exposed was the nefarious schemes of certain officials, as well as the inhumane conduct and sinister motives of the interrogators…

The trial itself was so devoid of the impartiality that must characterize judicial proceedings as to render the process a complete mockery.  The defendants, certain of their own innocence and having nothing to hide, had asked for an open hearing.  What then, one might ask, was the reason for the judge to have declared the proceedings to be “open and public” and yet refuse requests for attendance from observers, including representatives of diplomatic missions?  Why was it made so difficult for the families of the defendants to attend the trial? Why were journalists excluded, while government cameramen were allowed an active presence?  What was the reason for permitting the menacing presence of the agents of the Ministry of Intelligence throughout the trial?  How was it that the verdict issued by the judges could refer to the religion of the defendants as a “misguided sect”?  Is this not a clear sign that the court has violated the legal principle of neutrality?  The obvious conclusion is that such actions have been motivated by blind prejudice and hatred against the Bahá’í community for its religious beliefs.  How can a just society, or a just world, be built on a foundation of irrational oppression and the systematic denial of basic human rights to any minority?  Everything your country overtly professes to seek on the world stage is contradicted by your treatment of your own people at home.

The 12 September 2010 ruling issued by the court of appeal overturned the verdict of the lower court in relation to the charges of espionage, collaboration with the State of Israel, and provision of classified documents to foreign nationals with the intention of undermining state security.  The lower court itself had already found the defendants not guilty of the charge of “tarnishing the reputation of the Islamic Republic of Iran in the international arena” and of “spreading corruption on earth”.  What remained of the case, therefore, were those charges that pertained to the activities undertaken by these seven individuals in administering the social and spiritual affairs of the Iranian Bahá’í community.  Meanwhile, the judges, well aware that there were no grounds whatsoever for the charge of acting against the interests of Iran and its citizens, were under pressure from officials bent upon a finding of guilt.  Consequently, the judiciary chose in essence to distort and present as illegal the religious beliefs of the defendants and their service to the Bahá’í community—a selfless service which their fellow Iranian Bahá’ís warmly acknowledged and appreciated.  Thus, the seven were each sentenced to ten years in prison.  This sentence has been strongly denounced not only by the defendants themselves, their families, and the Bahá’í International Community but by advocates of justice in Iran and the world over.

Given that for the past twenty years the government of the Islamic Republic of Iran has been fully aware of the work of these individuals in managing the affairs of the Bahá’í community, to accuse them now of illegal activities is as baseless and unjust as it is inexplicable.  Our open letter dated 4 March 2009 to the Prosecutor General of the Islamic Republic of Iran established in detail the spurious character of the charges leveled against the Yaran and we commend it to your attention.  An unbiased reading of that letter will confirm that there are no grounds whatsoever on which the Islamic Republic could assert that the Bahá’ís of Iran, including these seven individuals, represent the least threat to public order or to the common weal in that land.

There is not a shred of evidence to support the accusation that these Bahá’ís were seeking to compromise national security, participating in subversive activities, or engaging in propaganda against the regime, charges which the defendants themselves have categorically denied.  Such accusations are entirely inconsistent with the outstanding record of the Bahá’ís in Iran and around the world, who regard service to one’s homeland and to humankind as an inescapable moral obligation.  Nor do they accord in any way with the Bahá’í teachings, which assert that “in every country where any of this people reside, they must behave towards the government of that country with loyalty, honesty, and truthfulness.”  The approach adopted by the judiciary and the accusations leveled against these individuals constitute again a patent violation of the freedom of conscience and belief of Iranian citizens, and are a brazen contravention of Article 14 of the Iranian Constitution, which stipulates:  “In accordance with the sacred verse, ‘God doth not forbid you to deal with kindness and fairness towards those who have not made war upon you on account of your religion, or driven you forth from your homes’ [60:8], the government of the Islamic Republic of Iran and all Muslims are duty-bound to treat non-Muslims kindly and in accordance with the principles of Islamic justice and equity, and to respect their human rights.”

Now in their third year of what is shamelessly still termed a “temporary” detention, these seven prisoners have been subjected to every manner of indignity and violation of their fundamental rights.  Their high resolve and their gracious character amidst the hardships they have been made to endure stand in sharp contrast to the brutality of their oppressors and attest their forbearance and purity of motive.  This is a truth to which the noble people of Iran can now bear witness.  The accounts we have received indicate that fellow inmates admire their conduct and demeanor, see them as beacons of hope and sources of consolation and comfort, seek strength from their wisdom, and regard them as the symbols of the free spirit and sincere heart that are characteristics of the people of Iran.

Your honor, we ask you, what purpose is served by seeking to extinguish such moral attributes and spiritual qualities?  Are such acts of oppression faithful to the high principles extolled by the Prophet Muhammad (peace be upon Him)?  In Gohardasht Prison, there are surely other innocent inmates.  How can you allow any soul to be subjected to that prison’s appalling state of filth, pestilence, disease, and the privation of facilities for basic personal hygiene?  Such an odious and degrading environment is unworthy of even the most dangerous criminals.  Does the government of Iran believe the principles of Islamic compassion and justice to be consistent with the imposition of such conditions on citizens?  Why are the prisoners’ pressing needs for medical care and treatment ignored?  Who will be called to account if the health of any of these seven further deteriorates?  Why are these innocent individuals not given adequate food, and why are they confined to prison cells of such insufficient space as to make it difficult for them to lie down or even to perform their daily prayers?  Why has the judiciary callously deprived them of their right to compassionate leave?

Are not all of these privations intended to break their spirits and those of the other Bahá’ís of Iran?  Consider how the members of the Bahá’í community are continually forced to withstand the slander of their beliefs and the distortion of their history in government-supported mass media; to endure provocations in the streets, from the pulpits, and with the support of certain officials, that incite hatred against them; to suffer illegal imprisonment; to see themselves denied access to higher education and to the means of earning a livelihood; to have their children suffer abuse and vilification in schools; and to witness their properties destroyed and their cemeteries desecrated with the support and approval of government authorities.  Yet, what results have such efforts yielded?  The response of the Bahá’ís of Iran to the persecution they have suffered in recent decades has made them, in the eyes of the Iranian population, embodiments of unyielding attachment to spiritual principle and of constructive resistance to oppression.  What is more, it has brought about a heightened desire among that population to become acquainted with the verities of their Faith…

The Bahá’ís are not “others” in your country:  they are an inseparable part of the Iranian nation.  The injustices meted out to them are a reflection of the terrible oppression that has engulfed the nation.  Your respect now for the rights of the Iranian Bahá’ís would signal a willingness to respect the rights of all the citizens of your country.  Redressing the wrongs suffered by the Bahá’ís would bring hope to the hearts of all Iranians that you are ready to ensure justice for everyone.  Our call, then, is in reality a call for respect of the rights of all the Iranian people.

With our hearts filled with love for Iran and our earnest hopes for the exaltation and glory of that land, we urge you, in your capacity as the Head of the Judiciary, to release the former members of the Yaran from prison and, along with them, all the Bahá’ís who are incarcerated across the country.  These include Miss Haleh Rouhi, Miss Raha Sabet, and Mr. Sasan Taqva, the three young Bahá’ís who have now entered the fourth year of imprisonment in Shiraz for the crime of helping impoverished children to learn how to read and write.  We likewise request that the Bahá’ís in that country be granted their full rights of citizenship, in order that they may be able to fulfill their heartfelt aspiration to contribute, alongside their fellow citizens, to the advancement of their nation.  This, indeed, is no more than what you rightfully ask for Muslim minorities who reside in other lands.  Bahá’ís merely seek the same treatment from you.

Respectfully,

Bahá’í International Community

cc: Permanent Mission of the Islamic Republic of Iran to the United Nations

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Omar Khadr’s Lawyer Dennis Edney Speech at FNC http://lawiscool.com/2010/11/06/omar-khadrs-lawyer-dennis-edney-speech-at-fnc/ Sun, 07 Nov 2010 00:39:22 +0000 http://lawiscool.com/?p=3001

Omar Khadr’s Lawyer Dennis Edney Speech at FNC from Ezra Winton on Vimeo.

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Conrad Black and Libel Tourism http://lawiscool.com/2010/10/04/conrad-black-and-libel-tourism/ http://lawiscool.com/2010/10/04/conrad-black-and-libel-tourism/#comments Mon, 04 Oct 2010 11:55:58 +0000 http://lawiscool.com/?p=2953 David Canton has a column in this week’s London Free Press, where he discusses the Conrad Black case:

The case deals with Internet defamation and how to determine where to sue for it. As with traditional defamation, a party alleging Internet defamation must demonstrate they suffered damages in Ontario and also that they have a significant connection to Ontario. Where Internet defamation differs from traditional defamation is that the alleged victim must prove the statements in question targeted Ontario.

In Black v Breedan, Black brought an action for libel against directors, advisers and a vice-president of Hollinger International for statements posted on the Hollinger website. Black argued his reputation was damaged in Ontario as a result of these defamatory statements that had been reproduced in a number of prominent Canadian newspapers, such as the Globe and Mail and the National Post.

Black v Breedan is noteworthy because of the online aspect of the alleged defamation. Because anything posted on the Internet can be seen anywhere in the world, it has led to “libel tourism” – where someone who thinks they have been defamed will try to sue in whatever jurisdiction they might be most successful in, and get the highest damage award.

Black v Breedan tells us that – at least in Ontario – libel tourists are not welcome.

The case is interesting to me because it’s one of the first looking at the reformulated real and substantial connection test in Van Breda v. Village Resorts Limited for libel cases over the Internet.

The motion judge found most of the Muscutt factors favoured Black. On appeal, the Defendants submitted that the judge erred in looking at the connection of Black to Ontario, instead of the connections of the claim to the province.

The alternative positions of the two parties are best set out in the following paragraphs:

[35]     The defendants submit that treating the lex loci delicti as the place in which allegedly defamatory statements were accessed is inappropriate in the context of Internet libel. An approach that looks to where the statements were accessed, they argue, is contrary to the principles of order and fairness, leads to libel tourism and the prospect of unlimited liability and has a chilling effect on freedom of speech.

[36]     The defendants advocate a different approach to a claim for libel originating on the Internet. They suggest that the focus of the analysis of where the tort of Internet libel is committed should be on whether the defendant targeted the statements to the forum rather than where they were downloaded and read.

The Ontario Court of Appeal upheld the presumption of a real and substantial connection under Rule 17.02(g), even though the Van Breda test was not applied, and held that the Defendants did target their statements to Ontario based on press release contact info for local media. Consequently, there was a real and substantial connection between both Black and the Defendants, even if they were in a different jurisdiction.

In assessing fairness, the court noted that even though there might be difficulties with enforcement of a judgment in the U.S., a favourable ruling would have some value in vindication for Black. But the court also tied this fairness element to the libel tourism issue raised by Canton,

[86]     I agree with the motion judge that it is not appropriate to label it forum shopping or libel tourism if the party has a real and substantial connection with the forum: see Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (S.C.C.), [1993] 1 S.C.R. 897, at p. 920. Further, even if the judgment is not enforceable in the United States, it is enforceable in Ontario, and there is also value in the vindication of a defamation judgment regardless of the ability to collect damages.

Although Ontario courts have resisted libel tourism in the past, Black v. Breedan also reaffirms the proposition that where a case meets the Van Breda factors this is not in fact a case of forum shopping.

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Ha-Redeye and Yap — Piedra v. Copper Mesa Mining Corp http://lawiscool.com/2010/09/07/ha-redeye-and-yap-piedra-v-copper-mesa-mining-corp/ http://lawiscool.com/2010/09/07/ha-redeye-and-yap-piedra-v-copper-mesa-mining-corp/#comments Tue, 07 Sep 2010 16:00:21 +0000 http://lawiscool.com/?p=2888 In the spirit of increased collegiality and collaboration within the Canadian legal blogging community, LawisCool.com and TheCourt.ca have set aside their heated rivalry to bring you their first ever joint posting. What follows is a commentary on the interesting case of Piedra v. Copper Mesa Mining Corporation, 2010 ONSC 2421.

Commentator for LawisCool.com: Omar Ha-Redeye, Juris Doctor, University of Western Ontario; founding contributor of LawisCool.com

Commetator for TheCourt.ca: James Yap, Juris Doctor, Osgoode Hall Law School, York University; former Senior Contributing Editor, TheCourt.ca.

The Facts

Copper Mesa Mining Corporation is a Canadian company based in British Columbia who planned through one of its subsidiaries to build an open pit copper mine in the Intag cloud forest just south-west of The Cotacachi Cayapas Ecological Reserve, an area of the Andes Mountains of Ecuador. The company is listed on the Toronto Stock Exchange (TSX), but it does not have significant assets or operations in the province of Ontario aside from two of its non-management directors residing in the province.

The Plaintiffs in the case are local activists in Ecuador who have opposed the mine, on the grounds that it will create major deforestation and desertification in the area and threaten more than a dozen animals with extinction. They allege that Copper Mesa through its agents used armed assaults and death threats to intimidate the local activists. Due to a perceived inability to hold Copper Mesa accountable in their country, the Plaintiffs brought a suit in Ontario against Copper Mesa, its directors, and the TSX.

The most novel aspect of the suit is the claim against the TSX for approving and listing Copper Mesa on the exchange, resulting in an influx of capital that would allegedly be used for further intimidation and violence against opponents. Local politicians in Ecuador and environmental supporters in Canada had brought the human rights allegations to the attention of the TSX before its listing. Further, the final prospectus filed by Copper Mesa’s subsidiary to the TSX acknowledge the existence of the conflict,

“[t]ensions surrounding potential exploration and mining work on the Junin property have risen, creating the potential of further escalating violence unless steps are taken to diffuse the situation,” and goes on to report a specific incident in which members of an “anti-mining group” felt “threatened”;

The liability, according to the Plaintiffs, flows from the failure to take any steps to avoid the violence, and that the Defendants knew or ought to have known that violence would ensue if the Copper Mesa subsidiary was financed through the TSX, and should have taken measures to ensure funds raised were not used for improper purposes.  The project was highly dependent on funding from the TSX, with over 80% of the US$26.7 million raised by the Copper Mesa subsidiary raised on the TSX alone. According to the Plaintiffs, it was a brokered private placement of shares approved by the TSX that raised US$4.5 million that allowed Copper Mesa to hire the private security forces allegedly responsible for the armed assaults that form the basis of the claim.

The TSX is considered a specialized exchange for mining, and over 60% of the world’s mining companies are listed on the TSX and related exchanges.

The Decision

This comment will only deal with the claim against the TSX, which is the more novel aspect of this litigation. Campbell J. began by enunciating the governing test, which is that laid out in Anns v. Merton London Borough Council, [1978] A.C. 728. Under that well-established test, the requirements for a duty of care owed by the defendant are the twin criteria of proximity and foreseeability. With respect to the former, Campbell J. concluded that there is simply “no connection between the Plaintiffs and the TSX Defendants.” Likening the TSX to a “voluntary regulator,” he reasoned that such an entity could not be found liable in tort for the adequacy of its regulatory activities. As for foreseeability, Campbell J. reasoned that “[i]n order to foresee [the alleged] harm, the TSX Defendants would have had to foresee political and business events in Ecuador which allegedly led to unlawful conduct by agents of Copper Mesa. Such a chain of events was not foreseeable or reasonably foreseeable.”

LawisCool.com (Omar Ha-Redeye):

I agree with the decision rendered by Campell J. in striking the action on a Rule 21 motion. To be clear, the grievances of the Plaintiffs are real and decidedly unfortunate. But sympathies alone cannot guide the actions of a court.

Rule 21 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states,

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL

WHERE AVAILABLE
To Any Party on a Question of Law
21.01 (1)  A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.
[emphasis added]

The Plaintiffs have based their opposition to the motion largely on the basis of R. 21.01(1)(b), that there is no reasonable cause of action. They correctly invoke Hunt v. Carey Canada Inc. in para. 27 of their Responding Factum, and state that the novelty of a cause of action should not by itself result in it being struck.

But it’s not just the question of novelty of the cause against the TSX that provides a basis for striking the cause. There are significant questions of proximity that can be put to question here, and the Plaintiffs assertion of an existing duty of care to individuals from an entirely different jurisdiction where the TSX has very limited direct influence is suspect. As noted in the facts, it was the inability of the Plaintiffs to hold Copper Mesa accountable in their country that resulted in the proceedings being issued in Ontario. Although corruption, intimidation, violence and environmental harm are all regrettable, again, the courts cannot be led by sympathies alone.

As Campell J. indicates in para. 38, the TSX is governed by the Securities Act, R.S.O. 1990, c. S.5. There is no ambiguity about the purpose of the Act,

Purposes of Act
1.1 The purposes of this Act are,
(a) to provide protection to investors from unfair, improper or fraudulent practices; and
(b) to foster fair and efficient capital markets and confidence in capital markets.
[emphasis added]

The main functioning role of the TSX then is to protect investors, and not those that might be affected by enterprises that those investors engage in. The TSX also plays the role of maintaining the function of the exchange, of which confidence in the market is a significant aspect. Neither of these roles provides a duty of care to the Plaintiffs, and in fact, creating a duty of care could arguably undermine confidence in the markets by exposing capital to litigation from functions remotely distant from the regulatory function of the exchange. I know of no other statute in the jurisdiction of Ontario that would provide a statutory cause of action of this type.

For this reason, the Plaintiffs are incorrect when they say in para. 38 of their Responding Factum that, “There are no negative policy implications sufficient to negate a duty of care.” The policy reasons above would also be sufficient to negate the second branch of the Cooper-Anns test, thereby preventing the creation of a new duty of care by the courts. There are even additional policy considerations in R. 21.01(1)(a) that emphasize the role of the courts in conserving costs and avoiding unnecessary litigation that could burden the judicial system. Creating a new cause of action of this type without any restrictions or constraints could potentially open the floodgates to all sorts of litigation related to ancillary actions of multinational conglomerates with only tenuous connections to Ontario, thereby overwhelming our court system even further.

However, the Plaintiffs also invoke in para. 38 what they call an “overwhelming policy reasons to recognize such a duty.” If the nature of Canadian investments is such that they are overwhelmingly affecting the indigenous peoples of other nations adversely in a manner that compromises our values and human rights, this could potentially affect confidence in the market, especially given the specialized nature of the TSX for mining and exploration companies. The Plaintiffs cite Justice Ian Binnie in para. 88 of the Responding Factum, indicating that governance gaps make it difficult to redress human rights abuses committed by private enterprise,

The root cause of the business and human rights predicament lies in the governance gaps created by globalization—between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation.

The proper venue to address this governance gap is the body responsible for governance, namely the legislature. It is the legislature that determines appropriate sanctions and reparations, especially when dealing with the highly politicized nature of globalization. Committees can analyze the economic repercussions of such sanctions, the appropriate scope, and maintain the proper balance between various interests. As Campell J. states in his decision,

[53] If there were policy considerations that would favour extending liability as sought by the Plaintiffs, such policy would be appropriately be a matter for the legislatures and not the courts, at least on these facts.

Fortunately, Parliament is undergoing this exact endeavour right now. Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, goes into its Third Reading this Fall Session, and is scheduled for its first hour of debate on the very first day that MPs return to session, September 20, 2010. The Standing Committee on Foreign Affairs and International Development (FAAE) has already heard evidence on this Private-Member’s Bill. And rather than create a statutory cause of action as sought by the Plaintiffs in this case, the Act would provide the Minister of Foreign Affairs and the Minister of International Trade the responsibility of holding corporations accountable by submitting annual reports to the House and Senate. For now, this is the appropriate balance that the elected representatives of Canadians have identified. If through their reports they identify a pressing and compelling problem, a carefully-tailored Canadian version of the American Alien Tort Claims Act might be appropriate, but until then foreign citizens lack standing to issue such claim, and Ontario courts lack jurisdiction to hear them.

Consequently, my opinion is that even if the Plaintiffs were successful above under R. 21.01(1), they would subsequently fail at R. 21.01(3), which provides the Defendants specific grounds for dismissing a motion,


To Defendant

(3)  A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Although Campbell J. did not discuss this element of the claim, it’s my opinion that the claim would also fail on jurisdictional and capacity grounds. This would provide an additional basis for dismissing the action under R. 21.01(1)(a) by disposing the action in its entirety.

The test used in Ontario for determining the proper jurisdiction is the real and substantial connection test. A jurisdiction does not have to present the most or strongest connection, just a real and substantial connection. There is a rather tenuous connection between the Defendants and the province of Ontario, and the TSX seems to almost be a fortuitous factor rather than a direct party causing the alleged harm. The connection to the Plaintiffs is even more remote, and it’s difficult to see what connection, if any, they have to the Province of Ontario. After the Court of Appeal’s decision in Van Breda v. Village Resorts Limited, the primary focus for determining a real and substantial connection is the first two factors of the “Muscutt test,” namely the respective connections of the Plaintiff and the Defendant to the proposed jurisdiction. Applying the test to this case would likely result in the court finding that a strong connection does not exist. Also, a motion by Defendants for forum non conveniens would likely have followed a successful ruling on this motion, as all the witnesses and evidence of the alleged harm are more properly located in Ecuador, especially if the TSX was struck as a Defendant.

Despite supporting the decision by Campbell J., I do think the case of Piedra v. Copper Mesa Mining Corporation has been a success. If the proper venue for recourse is in the legislature, it requires supporters of Ecuadorian activists to raise awareness here in Canada. This case has done just that by bringing to light the very serious nature of Canadian complicity in human rights violations abroad. Ideally this case, and others like it, will be vigorously discussed in Committee, the House and the Senate. It will require members of the Canadian public to support the passing of Bill C-300. And ultimately it might fall upon the conscience of Canadians to allow our courts to adjudicate human rights issues abroad against corporations with ties to our society. But until then the cause of action brought in Piedra against the TSX is not likely to successful, and in my opinion it should not be and is properly struck on a Rule 21 motion.

TheCourt.ca (James Yap):

I am not quite so convinced. It seems to me that Campbell J. is a step too hasty to characterize the TSX as a mere “voluntary regulator.” Such language seems to imply that the TSX has a merely regulatory function, akin to any state regulatory body. However, this is not strictly so – in reality, the TSX’s activities go much deeper than this. As Campbell J. in fact acknowledges, the TSX is not a state body but a private for-profit corporation. A duty of care thus need not derive from statute, the TSX may be subject to the same duties as other private actors. On the face of things it appears equally plausible, as the plaintiffs argued, to characterize the TSX as a private for-profit entity which holds out a service to the paying public – a service which, in the Copper Mesa case, may have led to the commission of a tort. Framed in such terms, the suggestion that the TSX may be liable in tort becomes much more palatable – akin, for instance, to a firearms dealer who sells a weapon to a customer in the knowledge that the customer intends to use it for an unlawful purpose. It is regrettable that Campbell J.’s analysis does not contain more thorough and deliberate reasoning as to why one characterization describes the TSX’s role more accurately than the other. Hopefully the Court of Appeal’s analysis will delve into greater depth.

Further, I am not sure that Campbell J. is asking the right question when he reasons that “[i]n order to foresee [the alleged] harm, the TSX Defendants would have had to foresee political and business events in Ecuador which allegedly led to unlawful conduct by agents of Copper Mesa. Such a chain of events was not foreseeable or reasonably foreseeable.” The question of foreseeability should not focus on whether the precise events that led to the harm were foreseeable, but on whether harm itself – regardless of the specifics of how it may have come about – was generally foreseeable (see e.g. Hughes v. Lord Advocate, [1963] UKHL 8 – although admittedly this case discusses foreseeability in the context of remoteness and not duty of care). As such, the question should not be whether the TSX should have foreseen the precise “political and business events” that allegedly led to the harm, but whether the TSX, given what it knew about the situation, should have foreseen that allowing Copper Mesa to raise funds on the exchange would have led to greater violence.

In light of all this, I am not so convinced that it is “plain and obvious,” as is the standard on a Rule 21 motion, that the plaintiffs do not have a reasonable cause of action. The plaintiffs’ claim is certainly novel and has its more tenuous aspects. However, this is not a sufficient basis to deny them their day in court altogether.

As my colleague suggests, however, even if the plaintiffs are successful on appeal they will face many difficult legal hurdles later on (although unlike my colleague, I am not convinced that jurisdiction is one – particularly with respect to forum non conveniens, where the joinder of the TSX would make it difficult to establish that another forum is clearly more appropriate. Tellingly, the defendants never filed a forum non conveniens motion – although it is still open for them to do so in future.). Ultimately, Campbell J. may have done little more than save the plaintiffs several years’ worth of expensive litigation costs.

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Warman v. Fournier et al: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases http://lawiscool.com/2010/05/04/warman-v-wilkins-fournier-balancing-disclosure-privacy-and-freedom-of-expression-interests-in-internet-defamation-cases/ http://lawiscool.com/2010/05/04/warman-v-wilkins-fournier-balancing-disclosure-privacy-and-freedom-of-expression-interests-in-internet-defamation-cases/#comments Tue, 04 May 2010 12:04:27 +0000 http://lawiscool.com/?p=2631 While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these entities generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of plaintiffs who seek these kinds of orders, courts have sought to craft approaches to evaluating applications for disclosure that strike an appropriate balance between the privacy interests of anonymous internet posters and the reputational interests of plaintiffs.

Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.

1. Background

The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.

The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.

This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.

2. Holding on Appeal

The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.

In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:

If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.

[Warman, at para. 33]

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; 
  • whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; 
  • whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and 
  • whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:

In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima faciecase standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers. 

In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.

[Warman, at paras. 41 – 42]

3. Implications

Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.

Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”): 

  • whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim; 
  • whether the applicant has established a relationship with the third-party from whom the information is sought, such that it establishes that the third party is involved in the acts; 
  • whether the third party is the only practicable source of the information; 
  • whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and 
  • whether the interests of justice favour obtaining the disclosure. 

[York University, at para. 13]

Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.

Originally posted on Defamation Law Blog

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