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.