Environmental Law – 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 Legal Submissions in 140 http://lawiscool.com/2011/12/14/legal-submissions-in-140/ Wed, 14 Dec 2011 18:03:37 +0000 http://lawiscool.com/?p=3268

I’ve been invited to participate in the first moot to be held entirely on Twitter.  The Twitter Moot will cover environmental law and First Nations rights, and is already attracting international attention.  I’ve written a little more about this on Slaw.

The student competitors this year are:

  • Team Dalhousie: Michele Charles and Kristen Balcom from the University of Dalhousie in Halifax, Nova Scotia.
  • Team Osgoode: Nikki Peterson and Emelia Baack from York University, in Toronto, Ontario;
  • Team Ottawa: Yana Banzen and Kowlasar Misir from Ottawa, Ontario;
  • Team UBC: Meghan Trepanier and Matthew Kalkman from Vancouver, British Columbia;
  • Team UVic: Matthew Nefstead and Julie DeWolf from Victoria, British Columbia;

Press release by WCEL below.

Environmental law appeal to be argued over Twitter – for the First time ever

Tuesday, December 13, 2011

VANCOUVER. On Tuesday, February 21st, 2012 at 10am PST (1pm EST), West Coast Environmental Law will be hosting the world’s first ever Twitter Moot.  Moot Courts – a simulated court hearing – are a common activity in law schools, but are new to most of Twitter’s more than 300 million users.  Law students from 5 prominent Canadian law schools are scheduled to compete in this first moot.

Law students will represent Canadian Universities – British Columbia, Dalhousie, Ottawa, Victoria and York (Osgoode Hall) – will represent parties and present their arguments over Twitter in a simulated appeal of an actual court case: West Moberly First Nations v. British Columbia.  The judges confirmed to hear the appeal (a third judge is still to be announced) include:

  • William Deverell (lawyer and author of the critically-acclaimed Arthur Beauchamp Mystery novels); and
  • Omar Ha-Redeye (lawyer, blogger and one of Canada’s top 24 social media influencers according to Canadian Lawyer Weekly).

“Legal argument is not often limited to 140 characters or less,” said Jessica Clogg, Executive Director of West Coast Environmental Law.“ But Twitter is the perfect medium to raise public awareness about how the law can help protect the environment.”

“The Twitter Moot will tell the story of an Aboriginal Nation fighting to preserve their relationship with the land against coal mining, and of the complicated questions of law and values that come with that conflict,” said Andrew Gage, one of the Moot’s organizers. “Tweeps [Twitter users] interested in law, the environment or aboriginal issues will definitely want to follow our Twitter Moot.”

Members of the public seeking to follow the moot can follow www.twitter.com/WCELaw/twtmoot, or can visit West Coast’s website at www.wcel.org/twtmoot/  Visit the web pages of the individual teams to leave advice or good wishes to the teams.  The Hashtag for the Twitter Moot is #twtmoot.

West Coast Environmental Law thanks the sponsors of the Twitter Moot, or #twtmoot, including Iler Campbell LLP, McCarthy Tetrault, Miller Thomson LLP, Saxe Law Corporation, Skunkworks Communications, and Willms & Shier Environmental Lawyers LLP.

– 30 –

For more information contact:

Andrew Gage, Staff Lawyer, West Coast Environmental Law – 604-601-2506 (Vancouver) or 250-412-9784 (Victoria)

Jessica Clogg, Executive Director, 604-601-2501.

The TwtMoot Web Pages are available at wcel.org/twtmoot.

A pdf version of this press release is available here.

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Trigger-Happy Plaintiff Feels the Blowback for Initiating Legal Action http://lawiscool.com/2011/10/21/trigger-happy-plaintiff-feels-the-blowback-for-initiating-slapp-action/ Fri, 21 Oct 2011 11:42:15 +0000 http://lawiscool.com/?p=3246 A recent decision by the Supreme Court of British Columbia in relation to a costs application provides a cautionary tale for eager plaintiffs that hope to use the courtroom to wage their own private war on citizens exercising their right to free speech. In Scory v. Krannitz, 2011 BCSC 1344 , Bruce J. awarded special costs and double costs against a trigger-happy plaintiff that sued an environmental society and some of its members individually for merely speaking out against his application for a permit, even though his application had not yet been denied by the relevant municipality.

Although Bruce J. was hesitant to characterize the plaintiff’s actions as a SLAPP, her decision reflects the courts’ capacity to appropriately address meritless litigation that abuses the court system and harasses citizens exercising their lawful right to free speech. After acknowledging that free speech is essential to democracy, Bruce J. stated that special costs can be used as a “deterrent to litigants whose purpose is to interfere with the democratic process.” In comparison, the courts have traditionally been reluctant to use the existing tools at their disposal (e.g. the Rules of Civil Procedure) to deal with plaintiffs that commence SLAPP actions on the basis that such an application of those tools would be unprecedented or outside the purpose that the legislature intended for them. Given the provincial legislatures’ slow pace in developing anti-SLAPP legislation, it is necessary for judges to use the tools at their disposal to compensate the legislative vacuum.

The Facts

In this case, the plaintiff  applied to the Township of Langley, British Columbia, for a permit so that he could farm on his land. If granted, the permit would allow the plaintiff to dump 750,000 cubic meters of soil on his property. The defendants, Sian Krannitz, Jack DeWitte and the Glen Valley Watershed Society (“Society”), were concerned that the impact of the soil on streams flowing through the plaintiff’s property would negatively affect the watershed in the area. Accordingly, Krannitz and the Society opposed the permit application. Their opposition consisted of the Society producing written material on the issue and holding a meeting in which Krannitz gave a speech. Krannitz also produced a report on the ecological damage that the plaintiff’s proposed activities would cause.

In short, the municipality put a hold on the permit until the plaintiff provided it with additional information that would allow it to measure the environmental impact of the application. The municipality sent the plaintiff a letter to that effect. Notwithstanding the fact that the permit had not been actually denied, the plaintiff  sued the defendants two weeks prior to receiving the municipality’s request for additional information for a total of $13,000. While the fact that the decision on the permit was still pending is pretty damning in and of itself, other indications that the claim was a SLAPP action included: the plaintiff’s refusal to disclose the municipality’s letter; the absence of evidence that supported his claim; and his failure to complete discovery. The court was also mindful of the effect that the lawsuit had on the ability of the defendants to exercise their right to free speech. All ceased any activities that would expose them to liability. Krannitz ceased to participate in the Society and volunteer in other environmental activities. In addition to its directors ceasing to participate in public decision-making in fear of personal liability, the Society considered winding itself up.

Based on the lack of evidence supporting the plaintiff’s allegations and his conduct, Bruce J. granted the defendants’ application for special and double costs. The plaintiff was ordered to pay Krannitz special costs in the form of a lump sum of $27,552.84 for legal fees, and $4,118 for disbursements. She was also awarded $1,000 in costs for the application at hand, in addition to disbursements. The Society was also awarded special costs for actual legal fees and disbursements, the amounts of which were to be decided upon the court receiving evidence on the costs actually spent by it. Double costs were also awarded to the defendants. According to Rule 9-1(5)(b) of the Supreme Court Rules, successful parties may be granted double costs for some or all of the steps taken in litigation after the date of their offer to settle. In this case, Krannitz had offered to settle, notwithstanding the lack of merit to the plaintiff”s claim. Bearing in mind the defendants’ limited resources and the fact that municipality had not actually denied the application, but was merely awaiting more information from the plaintiff, Bruce J. exercised her discretion to award double costs.

No SLAPP on the Wrist This Time

The effective use of existing procedural rules in Scory to deal with meritless litigation that interferes with free speech is worthy of much praise. Plaintiffs that abuse the court system should be sanctioned accordingly. Without sanctions, there is very little to prevent plaintiffs from wasting court resources to wage a personal war against others that oppose their whims. That said, there should be safeguards to ensure that claims that have merit are not excluded.

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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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Take-Back Laws… http://lawiscool.com/2010/11/23/take-back-laws/ Tue, 23 Nov 2010 05:36:16 +0000 http://lawiscool.com/?p=3019 Are you aware of “Take-Back Laws”?

Well, view the video below, and then you’ll understand why we need them!

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3019
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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The Solution to Climate Change is Texting http://lawiscool.com/2010/04/08/the-solution-to-climate-change-is-texting/ Thu, 08 Apr 2010 13:40:28 +0000 http://lawiscool.com/?p=2594

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US EPA issues endangerment finding for GHGs http://lawiscool.com/2009/12/08/us-epa-issues-endangerment-finding-for-ghgs/ Tue, 08 Dec 2009 16:50:08 +0000 http://lawiscool.com/?p=2312 0902122_vehicle_emissions

Yesterday, the US EPA finally issued administrative findings with respect to greenhouse gases (GHGs) such as carbon dioxide. While coinciding with the commencement of the climate conference in Copenhagen, this finding has been anticipated since the 2007 U.S. Supreme Court decision in Massachusetts v EPA – in which the U.S. Supreme Court ruled that the EPA did in fact have the authority to regulate GHGs under the U.S. Clean Air Act.

The Court’s decision in Massachusetts specifically found that the EPA had authority to regulate GHGs by issuing emission standards for motor vehicles, under Section 202(a)(1) of the Clean Air Act. Under that section:

(1) The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare…

Yesterday’s finding specifically held two things:

(1) Endangerment Finding:
The Administrator finds that the current and projected concentrations of the six key well-mixed greenhouse gases–carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)–in the atmosphere threaten the public health and welfare of current and future generations.

(2) Cause or Contribute Finding:
The Administrator finds that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.

The next step is to determine – based on these findings – exactly what emissions standards are going to be appropriate.

It’s also important to note what this finding is *not*. The Clean Air Act also empowers the EPA to publish air quality criteria for air pollutants it anticipates to endanger public health or welfare. For these criteria air pollutants, the EPA sets up nationally uniform ambient air quality standards for the country, which individual states are required to meet. But so far, the EPA has not imposed any stringent sort of caps on GHG emissions like these. Presumably, a legislative solution comprehensively addressing GHG emission at large is anticipated.

Nevertheless, other proposed rules coming down the administrative pike, might be seen to complement anticipated legislation. Title V of the Clean Air Act requires permits for all major industrial sources with state administration and federal oversight. If and when a comprehensive legislative solution to GHGs is enacted, rules currently proposed by the EPA would affect sources emitting over 25,000 tons of GHGs. Such sources would be required to use best-available-control-technology (BACT) to obtain GHG emission permits.

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Do CRU emails show FOIA wrong-doing? http://lawiscool.com/2009/11/23/do-cru-emails-show-foia-wrong-doing/ http://lawiscool.com/2009/11/23/do-cru-emails-show-foia-wrong-doing/#comments Tue, 24 Nov 2009 03:16:08 +0000 http://lawiscool.com/?p=2280 There’s been a lot of hype in the past few days about a batch of emails that were either hacked or leaked from the University of East Anglia’s Climate Research Unit (CRU). In the view of some opponents to climate change legislation, these emails depict collusion and conspiracy among leading climate change scientists. Other contrarians accuse at least one scientist of outright illegal conduct: violations of UK’s Freedom of Information Act (FOIA).

CRU

Hundreds of emails spanning well over a decade were released, but the ones important for allegations of illegal conduct are those where some of the scientists discuss the implications of the newly (in the UK) enacted FOIA, those that discuss how to deal with FOIA requests, and one that directs the deletion of certain emails.

I’ve learned a little bit about the US’s version of FOIA, so I thought that it would be interesting to examine this accusation of illegal conduct – at least, to the extent that a Canadian studying law at an American law school can explore British information and privacy law.

Freedom of Information for Environmental Information in the UK

An interesting distinction is that the UK actually has both the Freedom of Information Act 2000, as well as parallel legislation specifically for environmental information, under the Environmental Information Regulations 2004 (EIR). The EIR was developed in response to a directive of the European Parliament regarding the public access to environmental information, and is slightly broader in scope with respect to applicable information and bodies than FOIA.

Under Regulation 2(2) of EIR:

“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on –
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; …

Certainly, data and statistics concerning temperature would seem to constitute “information on the state of elements of the environment.” And, given the important implications of such data, public access would seem to follow the policy of “greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and…a better environment” that is set out in the European Directive.

For information that thus constitutes “environmental information”, a public authority that holds such has a duty to make it available upon request, under Reg. 5. In addition to imposing that duty, Reg. 5 also allows 20 working days for the public authority to comply. Nevertheless, the duty to disclose requested environmental information is far from absolute.

The EIR attempts to balance the goal of public access to environmental information with other important considerations. As such, the EIR also allows for exceptions to the duty to disclose, under Regulation 12. These exceptions fall under two general categories: disclosure of certain types of information may be refused, and disclosure that would have certain adverse effects may be refused. Save for personal information, these exceptions are discretionary, and the public authority “may” refuse to disclose. Moreover, under Reg. 12(1)(b), chosen exceptions are still subject to a “public interest test,” which balances the exception with public disclosure – taking into account “all the circumstances”.

Types of information

Personal Information is excepted under Reg. 12(3) & Reg. 13, in accordance with UK’s Data Protection Act.

Reg. 12(4) also allows refusal of disclosure for requests of certain types of information:

• information not held when the request is received,
• unreasonable requests,
• requests that are too general,
• information regarding ongoing research or work in progress, or
• internal communications.

Disclosures with Adverse Effect

Reg. 12(5) allows refusal where disclosure of information would adversely affect:

• international relations, defence, national security or public safety;
• the ability of a person to obtain a fair trial, or the ability to conduct a criminal or disciplinary inquiry;
• intellectual property rights;
• the confidentiality in proceedings, as provided by law;
• the confidentiality of commercial or industrial information, as provided by law
• the interests of the supplier of information; or
• the protection of the environment to which the information relates.

With respect to the CRU, it is conceivable that at least a few Reg. 12 exceptions could apply. The exception for manifestly unreasonable requests under Reg. 12(4)(b) is intended to balance public access to information with cost, labour, and complexity that may be involved in requests. In a discipline as complex as climatology, the sheer size of data sets, and the methodology that may be needed to make them meaningful, could involve significant time and energy to fulfill requests. This may also be especially true where third party intellectual property rights are involved.

The intellectual property (IP) rights of both a public authority and of third parties may be protected from disclosure under Reg. 12(5)(c). This exception may arise where the information requested contains or was produced at least in part by work in which third parties hold IP rights. An example might be a large data set composed of smaller data sets from different sources. In this way, requests for information under EIR are not to be a runaround of IP protections.

The concerns underlying these exceptions are not slight. Since their inception in any jurisdiction, FOI requests have been used as much as a sword against agencies and proprietary rights as much as they have been used for genuine informational purposes. As such, very legitimate reasons do exist for avoiding disclosure under permissible exemptions in FOIA or EIR type laws.

Nevertheless, impermissible avoidances obviously constitute violations of such laws. Reg. 19(1) gives us the offence under EIR:

Where –

(a) a request for environmental information has been made to a public authority under regulation 5; and

(b) the applicant would have been entitled to that information in accordance with that regulation,

any person to whom this paragraph applies is guilty of an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to which the applicant would have been entitled.

Whether or not the emails show wrong-doing depends on a number of factors. In this case, much has been made about one email in particular where a scientist directs others to delete emails on a particular topic. Certainly, if there was a specific request for information that the scientist had a duty to disclose and, rather than fulfill that request, a scientist deleted records – this would constitute an offence. But, in order for an offence to have been committed, the applicant must have been entitled to the information.

In this case, do the leaked emails indicate whether a specific, existing EIR request applied to the emails to be deleted? If there was a request for information, was it for information where disclosure could be refused under a Reg. 12 exception? If so, and emails were deleted under these circumstances, has an offence been committed?

This is all the most telling email tells us:

Phil Jones wrote:
>
>> Mike,
> Can you delete any emails you may have had with Keith re AR4?
> Keith will do likewise. He’s not in at the moment – minor family crisis.
>
> Can you also email Gene and get him to do the same? I don’t
> have his new email address.
>
> We will be getting Caspar to do likewise.
>
> I see that CA claim they discovered the 1945 problem in the Nature
> paper!!
>
> Cheers
> Phil

It seems to me that a lot of questions still need to be answered before a determination of wrong-doing can be made. Factual issues such as the timing and content are not obvious from the content of the leaked emails, and could influence whether the scientist in question was acting legally or not. Until the emails can be read with more context, I don’t think we can say either way.

I base this solely on my limited reading of the EIR and the guidance notes provided by the UK Information Commission. Reg.12 exceptions listed above may or may not be applicable. Unfortunately, I haven’t been able to get any UK caselaw, I may be entirely off-base as to what I read into the EIR. But, I found Reg.12(5)(g) particularly interesting: refusal because disclosure would adversely affect the protection of the environment. If anyone can provide any caselaw, or if anyone knows anything about the UK information law at work here, feel free to enlighten me by contributing to the conversation…

UK Information Commissioner’s Office EIR Page

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A Legal Obligation to Assist Iran http://lawiscool.com/2009/11/22/a-legal-obligation-to-assist-iran/ http://lawiscool.com/2009/11/22/a-legal-obligation-to-assist-iran/#comments Sun, 22 Nov 2009 23:06:52 +0000 http://lawiscool.com/?p=2271 Earlier today Iran began large-scale war games to simulate a response to attacks on its nuclear sites.  But these games are hardly for fun, as the country intends to showcase its capability of defending against a strike from Israel.

Although in Canada we normally think of countries like Iran as the aggressor, the country is not without fear of Israel initiating military action against them.  Israeli officials have not ruled out the possibility, and there is a history of attacking Iraq in 1981 and more recently, Syria in 2007.

In response to the strikes against Iraq, the United Nations Security Council issued Resolution 487, stating,

Considering that, under the terms of Article 2, paragraph 4, of the Charter of the United Nations: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”,

1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct;

2. Calls upon Israel to refrain in the future from any such acts or threats thereof;

3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;

4. Fully recognises the inalienable sovereign right of Iraq, and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes in accordance with their present and future needs and consistent with the internationally accepted objectives of preventing nuclear-weapons proliferation;

5. Calls upon Israel urgently to place its nuclear facilities under IAEA safeguards;

6. Considers that Iraq is entitled to appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel;

7. Requests the Secretary-General to keep the Security Council regularly informed of the implementation of this resolution.

Iraq’s new government is seeking reparations from the 1981 attack.  Sadr MP, Nasser al-Rubaie, recently stated,

According to the international law Iraq has the right to receive compensation from Israel. We have called for a legislation to be passed in the parliament to oblige the Iraqi government to follow up the issue.

But it’s the attack against Syria that really raised the interest of the international law community. The reason is that both attacks were justified by Israel as necessary measures of self-defence, which although questionable by international law, were given limited credence by the Bush doctrine.

The 2002 National Security Strategy of the United States of America (NSS) states,

A. Summary of National Security Strategy 2002
… the first duty of the United States Government remains
what it always has been: to protect the American people and American interests … this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD.

To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. The United States will not resort to force in all cases to preempt emerging threats. Our preference is that nonmilitary actions succeed. And no country should ever use preemption as a pretext for aggression.

The 2006 revision retains the ability to act preemptively.  But there is one important distinction between the U.S. and Israel that differentiates these policies.  The NSS is based on Article 51 of the U.N. Charter,

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The obvious distinction is that while the U.S. is a permanent member of the Security Council, Israel is not.  Israel cannot legitimately claim to be acting in self-defence when attacking pre-emptively, especially in light of Article 2(4),

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Additionally, the effectiveness of either of these strikes are highly disputed by analysts, who are still frustrated by refusals by Israelis to provide information about them. After the Iraq invasion on the premise of WMDs, skepticism about pre-emptive strikes, especially after claims by Israeli military intelligence officer Shlomo Brom and Israeli MPs that Israel deliberately exaggerated reports about Iraqi capabilities in order to encourage an invasion.

The Nuremberg International Military Tribunal addressed the issue of pre-emptive strikes in United States v. Goering, 6 F.R.D. 69, 100-01 (1946).  The court rejected the Nazi claim that they had to invade Norway to avoid an Allied invasion, because there was no such threat imminent.

Mark A. Drumbl of the Washington and Lee University – School of Law points out in Self-Defense, Preemption, Fear: Iraq, and Beyond that the military response by Austria-Hungary to the assassination by the Serbian terrorist organization Black Hand of the Crown Prince Ferdinand and his wife was uniformly condemned by the international community.  It is also largely acknowledged as the primary cause of WWI.

Nicole Deller and John Burroughs explain in Jus ad Bellum: Law Regulating Resort to Force,

The right to anticipatory self-defense under customary law has never been unlimited. One generally recognized formulation dating from the mid-nineteenth century is that set forth in a letter from U.S. Secretary of State Daniel Webster to British Minister Lord Ashburton, that the necessity for action must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Since then, and especially since World War II, capabilities to launch devastating attacks with little advance warning have improved dramatically. Nonetheless, scholars have continued to affirm Webster’s restraints on legitimate self-defense, recognizing their value in inhibiting resort to war. A recent edition of a leading treatise states that self-defense may justify use of force under the following conditions: an attack is immediately threatened; there is an urgent necessity for defensive action; there is no practicable alternative, particularly when another state or authority that legally could stop or prevent the infringement does not or cannot do so; and the use of force is limited to what is needed to prevent the infringement. Oppenheim’s International Law, 9th ed., 412.

But it’s a paper by Amin Ghanbari Amirhandeh, an LLM student at the University of Tehran, that gives the greatest pause.  He claims in Preemptive Attacks on Iran’s Nuclear Facilities?, that the Security Council would actually be required to assist Iran if attacked by Israel.

As Iran is a non-nuclear state, a military strike on a nuclear facility could still be considered a nuclear attack, given the resulting environmental damage.  He states,

In resolution 984, the Security Council “takes note with appreciation of the statements made by each of the nuclear-weapon States (S119951261, S119951262, S119951263, S119951264, S/19951265), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons”, and further “[w]elcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any nonnuclear- weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.

As the ICJ stressed in its historic opinion on legality of nuclear weapons
(1996), the Security Council, in unanimously adopting resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognized “that the nuclear-weapon State permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the State victim”; and welcomed the fact that “The intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non- Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.

Gesturing the concept of threat is enough for the Security Council in the present case, even if it is obvious that the five nuclear weapon states are
individually responsible for taking appropriate measures in order to assist Iran, to condemn any direct threat from Israel against Iranian nuclear installations.

Now that’s a consequence that would make Sarkozy’s description of an Israeli strike on Iran as an “absolute catastrophe” the understatement of the year.

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No “necessity” defence for environmental activist in Utah case http://lawiscool.com/2009/11/17/no-necessity-defence-for-environmental-activist-in-utah-case/ Wed, 18 Nov 2009 02:00:38 +0000 http://lawiscool.com/?p=2252 A Utah District Court judge ruled yesterday that environmental activist, Tim DeChristopher, would not be able to present a defence of necessity at the trial where he faces charges for fraud and for violating the Federal Onshore Oil and Gas Leasing Reform Act.

Tim_DeChristopher1231394118Tim DeChristopher

On December 19, 2008, DeChristopher participated in an oil and gas lease auction, where it is alleged he made bids not only to raise lease prices, but also to win leases he had no intention of paying. In that auction, DeChristopher won fourteen leases covering 22,000 acres, and totaling $1.7 million USD.

His actions were an attempt to prevent what some groups saw as a midnight pass by the outgoing Bush administration for the exploitation hundreds of thousands of acres of pristine land in Utah. When charged, DeChristopher attempted to argue necessity to defend his actions. To head off the media circus that surely would have sprouted had he been able to bring global warming in the courtroom, government attorneys filed a motion to prevent DeChristopher from presenting the defence.

In her ruling yesterday, Judge Dee Benson granted the government’s motion, holding that DeChristopher’s offers of proof did not meet any of the requirements for necessity.

In the U.S. Court of Appeals for the Tenth Circuit – of which Utah is a part – the defence of necessity has four elements. The defendant must have:

(1) chosen the lesser of two evils,
(2) acted to prevent imminent harm,
(3) reasonably anticipated a direct causal relationship between his conduct and the harm to be averted, and
(4) had no legal alternatives to violating the law.

Judge Benson found that (1) the “greater harm” DeChristopher feared was too speculative, (2) the harm was not imminent, (3) there was an insufficient causal relationship between DeChristopher’s actions and the harm to be averted, and (4) that a legal alternative did and does in fact exist (the leases in question are also currently the subject of an ongoing lawsuit (Southern Utah Wilderness Alliance v Allred, No. 08-2187, 2009 WL 765882 – for those with Westlaw access).)

This Utah District Court ruling stands in contrast to a UK case last year, where jurors accepted the analogous “lawful excuse” defence asserted by six Greenpeace activists. The activists were cleared of charges stemming from £35,000 worth of damage they caused to a coal-fired power station.

NY Times article
DeChristopher bidding at auction
Judge Benson’s ruling

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