Dec 8, 2014
Jennifer Brown, Canadian Lawyer
On Dec. 1, Attorney General Madeleine Meilleur announced she is reintroducing the protection of public participation act, 2014 to “balance the protection of public participation and freedom of expression and protection of reputation and economic interests.” It was originally put forward by Meilleur’s predecessor, John Gerretsen in June 2013 but died on the order paper when the election was called.
Known as strategic lawsuit against public participation, SLAPPs are used by developers or companies against individuals who protest projects, often in environmental and municipal planning disputes.
The law would provide for a fast-track process in which a judge would be given powers to apply a legal test to determine if the case could proceed or be dismissed. A request to dismiss would be heard within 60 days.
Jennifer Fairfax, a lawyer who practises environmental law at Osler Hoskin & Harcourt LLP, says the way the bill is currently drafted doesn't provide any guidance for the courts and could open the bill up to abuse which could in turn deprive plaintiffs of legitimate remedies for real harm they are actually suffering as a result of actionable conduct by people.
"As an environmental litigator I see both sides of this," says Fairfax. "On the one hand the bill is meant to address real social concerns about SLAPPs, which is a laudable goal and meant to help prevent the courts from being clogged with frivolous lawsuits that are not in the public interest."
Fairfax notes that the government has said legitimate lawsuits will be permitted to proceed through the system, but she says "the devil is in the details."
"The problem I see as a litigator is that on the surface the idea of the bill makes good sense but when you scratch the surface of the bill, from a litigator's perspective as currently drafted I think the bill is too vague and too loosely drafted. Some would say it disproportionately favours the party that purports to act in the public interest."
Fairfax says it could cause legitimate actions to be thrown out of court prematurely. "Sometimes people are not playing fair in the court of public opinion and you need to bring a lawsuit as a legitimate tool to hold people accountable," she says.
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