SLAPPs Used To Silence Public

It would be any organization’s worst nightmare. On Feb. 12, 2010, a fax arrived at Vancouver’s Talon Books marked “With Prejudice” in black capital letters on Davies Ward Phillips & Vineberg LLP letterhead. “Dear Sirs,” the fax began. “We are counsel to Barrick Gold Corporation and are writing concerning the announcement…that Talon Books is scheduled to publish, in May 2010, a book called Imperial Canada Inc.: Legal Haven of Choice for the World’s Mining Industries.”

by Joyce Nelson

The lawyers for Barrick demand­ed that the publisher, the Quebec au­thors, and the translators of the French manuscript turn over any portion of it “that makes direct or indirect refer­ence to Barrick, [its subsidiary] Sut­ton Resources Ltd., or to any of their past or present subsidiaries, affiliates, directors or officers” or face legal proceedings.

Toronto-based Barrick is the world’s biggestgold-mining company. Its corporate directors include former Prime Minister Brian Mulroney, who is also Chairman of Barrick’s International Advisory Board.

The book in question, written by Quebec lead author Alain Deneault and other Quebec members of the Col­lectif Ressources d’Afrique, was de­scribed in Talon Books’ Spring 2010 Catalogue: “Imperial Canada Inc. sets out to ask a simple question: why is Canada home to more than 70 per cent of the world’s mining companies? The authors, all respected scholars in their fields, meticulously research four fac­tors: Quebec’s and Ontario’s mining codes; the history of the Toronto Stock Exchange; Canada’s involvement with Caribbean havens; and finally, Can­ada’s official role of promoting itself to international institutions governing the world’s mining sector.”

Imperial Canada Inc. was specif­ically commissioned by Talon Books, apparently inspired by another book by the same lead author, which was published by Montreal’s Les Éditions Écosociété in 2008: Noir Canada: Pillage, corruption et criminalité en Afrique.

A week before that book’s publi­cation, Barrick Gold and another Ca­nadian gold- mining company (Banro Corp.) launched lawsuits against the authors and publisher of for a total of $11 million, claiming defamation for the book’s descrip­tion of Canadian mining practices in Africa. The Barrick case goes to trial in Quebec in September 2011. The Ontario case (Banro) apparently does not yet have a trial date. Les Editions Ecosociété did not return calls for an interview.

As Philip Resnick wrote for The Tyee (April 21, 2010): “Great wealth corrupts and the power of a corpora­tion like Barrick, as exemplified in the Talonbooks and Ecosociété cases, is a significant threat to our rights and freedoms, above all to freedom of ex­pression. How ironic, therefore, that the University of Toronto, a haven of academic freedom, should bask in the gifts of Peter Munk [founder and chair of Barrick, who recently donated an­other $35 million to the U of T]. In­stead of endlessly exposing abuses of human rights in China and elsewhere, perhaps the denizens of the [new] Munk School of Global Affairs should turn their attention to dangers lurking closer to home.”

Threat of Financial Ruin

One of those dangers is the pro­liferation of lawsuits called Strategic Lawsuits Against Public Participa­tion, or SLAPPs. Their use in Canada to silence individuals and organiza­tions has escalated over the past dec­ade to such an extent that in Ontario at least 65 municipalities have passed resolutions calling for anti-SLAPP legislation, and more than 60 organi­zations recently signed a letter to Pre­mier Dalton McGuinty requesting protection from SLAPP suits. Gord Miller, Environmental Commissioner of Ontario, called SLAPP suits “a con­tagion” in his 2009 Annual Report.

Quebec is the only province that has an anti-SLAPP law, passed in 2009 because of wide-spread public pressure. In British Columbia, a NDP government enacted an anti-SLAPP law in April 200l, but it was repealed just five months later by the BC Lib­eral government of Premier Gordon Campbell. Anti-SLAPP bills were also introduced in New Brunswick in 1997, in Nova Scotia in 2003, and in Ontario in 2008, but were never passed.

It is routine for the filers of SLAPP suits to claim damages in the millions of dollars for defamation (which includes libel and slander as subcategories), conspiracy, inducement of breach of contract, or in­terference with economic relations or business in­terests. Their targets are usually grassroots associations that are unin­corporated – which means they don’t have the limited liability protection a corporation provides. This makes members personally liable, and their personal assets at risk of seizure.

The goal of a SLAPP suit is not necessarily to win the case, but to silence and harass critics and divert their time, energies and limited funds into a lengthy legal quagmire. The le­gal costs to a developer or a multina­tional corporation are part of the costs of doing business, but to an individual or organization, a court case could mean financial ruin.

The Canadian courts have been reluctant to extend Charter protection of freedom of expression to disputes between private parties. That has made Canadians especially vulner­able to SLAPP suits.

In a piece for the Winnipeg Free Press (May 4, 2010) Winnipeg lawyer Donald J. Johnston writes: “The most basic activities of citizens speaking out on issues of public concern or en­gaging in debate about public issues have given rise to SLAPPs. Individu­als have been sued for writing letters to a newspaper, speaking to the me­dia, circulating petitions, organizing representations to local government, picketing, making submissions to government agencies, and even for testifying at public hearings.”

Turning Point

On May 14, Talon Books’ web­site announced: “What have become known as SLAPP suits work espe­cially well in Canada, and, of course, like most Canadians, we can’t afford one….As for Imperial Canada Inc., we have put it back on our list for fall 2010 publication. We intend to show the complete manuscript to Barrick prior to the book’s release, to allow Barrick the opportunity to ‘correct’ any ‘falsehoods’ about how they conduct their business affairs, world-wide, that they feel it may contain. We thank them, in advance, for their invaluable assistance in this regard.”

But when reached by phone at the end of June, Talon’s Karl Siegler told me, “We haven’t decided yet whether we want to give [the manuscript] to them. Talks have progressed since May. Barrick isn’t sure they want to see it.” Talon Books is being assisted by John Dixon of the BC Civil Liber­ties Association (BCCLA).

A “turning point” came, said Sie­gler, “when the media started to get on to this and it ceased to be a private matter.”

Barrick has been threatening to sue a variety of publications and in­dividuals for at least a decade. Jamie Kneen, of MiningWatch Canada, told me that Barrick “threatened us before the others. It was a threat of a lawsuit for libel and defamation for calling for an inquiry into what happened at a Tanzanian mine where a quarter of a million people were forceably re­located. The lawsuit never material­ized,” he said, “but we took the threat seriously.”

BC SLAPP Filers

The use of SLAPP suits to silence critics began in the US in the 1970s, as the environmental movement gained strength. By the 1990s, the trend had moved to Canada, especially to BC, where most SLAPP suits have occurred. In 1997, Sharon Beder, the author of Global Spin: The Corporate Assault on Environmentalism, wrote that forest companies MacMillan Bloedel Ltd. and Fletcher Challenge had “between them sued over 100 individuals and four community and environmental organizations who op­posed the logging of ancient rainforest on Vancouver Island.”

One of the more high-profile SLAPP suits was brought by Mac­Millan Bloedel in 1995 against the Galiano Island Conservancy Associa­tion, a small Gulf Island environmen­tal group promoting zoning bylaws to curtail the company’s real estate development of its extensive private forest land. MacBlo also sued the Galiano Island Trust Committee (the island’s local government) and three elected officials, contending that they, along with the Conservancy, were part of a “conspiracy” to injure its business interests.

After a long legal battle, the al­legations were dismissed in a unani­mous judgement of the BC Court of Appeal. Sierra Legal Defence Fund (now called Ecojustice Canada) pro­vided pro bono legal representation for the islanders.

Recent BC SLAPPS

According to a 2009 article by Michaelin Scott (articling with Sack Goldblatt Mitchell LLP) and Chris Tollefson (law professor at the Uni­versity of Victoria), in the years fol­lowing the repeal of BC’s anti-SLAPP law, “many environmental groups have faced threats of legal actions for their campaigns.” In 2003, the West Coast Environmental Law As­sociation itself became the target of a threatened SLAPP when it helped organize a community forum “to de­bate the potential impacts of a plan to develop coal-bed methane resources in northern part of Vancouver Island.”

Another recent SLAPP suit has stunned residents of Vernon, BC. Retired justice of the peace Jack Aasen and his wife Judy joined with several neighbours to protest the high utility rates charged by Brad Chapman, a local developer whose companies pro­vide private sewer and water services in their subdivision. They wrote let­ters, signed petitions and complained to the City of Vernon. Chapman and his companies responded by suing four of the residents for defamation. To gather evidence for the case, Chap­man hired a private detective, who posed as a prospective home buyer in the area and asked the Aasens their opinions, secretly taping these con­versations while in the Aasen home. When the defamation case went to court, a transcript of the conversa­tions was used as evidence.

Justice Eric Rice of the BC Supreme Court in Kelowna threw out the case, ruling that what was said about Chapman was fair comment. But Chapman appealed. The BC Court of Appeal in Vancouver dis­missed the case against the others, but in July 2008 ruled that some of what Jack Aasen had said to the private detective was defamatory.

Lawyer Michael Vonn, policy director of the BCCLA, has called the outcome of the case “shocking” and “a clear demonstration of the need for some kind of mechanism to assist vic­tims of SLAPPs or to have some kind of vetting process in place.”

Using the case as an example, Canadian Lawyer Magazine (January 4, 2010) called SLAPPs “a blunt in­strument to intimidate weaker foes.”

Learning from Quebec

Quebec’s anti-SLAPP legislation – Bill 9, which was passed on June 4, 2009 – is the result of a lengthy and concerted effort from a coalition of students, health workers, politicians, writers, teachers, environmentalists, and nuns, all motivated by some 20 recent SLAPP suits in Quebec.

As Winnipeg lawyer Douglas J. Johnston explains, “Quebec modified its rules of civil procedure to permit a defendant to bring a motion for sum­mary dismissal – whereby a lawsuit can be turfed early on in proceedings – of a SLAPP suit. The amendments also allow a judge, where he or she smells a SLAPP, to order a plaintiff to post a substantial dollar value as security with the court before being allowed to proceed with its suit. And what’s known as punitive damages – judicially found abuse of the civil justice system – are also now codified in the rules.” Under Quebec law, of­ficers and directors of a company can now be held personally liable to pay damages if the lawsuit is determined to be an abuse of legal process. “The overarching object of the changes is to punish plaintiffs who seek to use the courts to shut down public debate.”

Already, Tollefson told me in a recent phone interview, in Quebec “two or three decisions” have applied the new law and “dismissed the ac­tions” by SLAPP filers.

“A Licence To Slander?”

Jeffrey Davies, a partner at Dav­ies Howe Partners in Toronto, says that anti-SLAPP legislation could give citizens’ groups “a licence to slander.” He maintains that slanderous statements often surface when such groups campaign against property de­velopments. In most cases, he told Ca­nadian Lawyer Magazine, developers will “look the other way,” but “there are some highly egregious situations where [legal] action is taken.” Dav­ies also says, “We know how easy it is to manipulate the buzzword SLAPP, especially in an emotional setting like a hearing and how potentially damag­ing it can be to a proponent.”

This may remind some readers of the Daishowa v. Friends of the Lubi­con (FOL) case, wherein forestry gi­ant Daishowa asked the court to stop FOL, the group’s lawyers, and even a university professor (Tollefson) from calling the case a SLAPP suit. The Court did not grant Daishowa’s re­quest, in a SLAPP suit that dragged on from 1995 to 2000.

Justice MacPherson of the On­tario Superior Court ultimately con­cluded that FOL’s boycott and picket­ing activities were lawful, but he did find that FOL had defamed Daishowa by using the term “genocide” in rela­tion to the company’s Alberta opera­tions. He awarded Daishowa damages in the amount of $1, but declined to order that Daishowa reimburse FOL for legal costs of some $400,000. Si­erra Legal Defense Fund thus footed most of the bill for defending the case.

Nonetheless, Tollefson told me, in the Daishowa v. FOL case, “The judge believed that it was his duty to use the Charter,” and “One could argue that the Daishowa case influenced the re­cent Supreme Court decision [Dec. 2009] regarding the new defence called ‘public interest responsible communication’.”

In Grant v. Torstar Corporation, the Supreme Court recognized this new defence to protect statements of fact on matters of public interest. Ac­cording to Blakes Media Group, the leading lawyers for Torstar, “This de­fence will protect statements of fact on matters of public interest, even if the defendant cannot prove the state­ments published were true, provided the defendant can [in the language of the ruling] ‘show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances’.”

The Supreme Court made the de­fence available not just to the press, but (in their words) “to anyone who publishes material of public interest in any medium.” The Court further stat­ed that defamation lawsuits “should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society.”

When asked if this new defence is enough to deter SLAPP suits, Tollef­son said the ruling “indicates that the tide is turning in terms of reforming the law regarding defamation, but there is still a need for law reform because anti-SLAPP legislation deals with a whole range of [procedural] issues that the courts can’t and won’t deal with.”

A Growing Momentum

In May, the Ontario government created an advisory panel to outline anti-SLAPP legislation, headed by the Dean of the Faculty of Law at the University of Toronto. The panel will report by the end of September.

There is also movement towards Canada-wide anti-SLAPP legisla­tion. The Uniform Law Conference of Canada has been examining the issue since Spring 2008 and is drafting a uniform law/model rules of court for consideration.

With these developments in Que­bec, which now has its law, in Ontario, which may soon introduce legislation, and on the federal scene, Canadian citizens may eventually be legally protected from this legal scourge.

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Joyce Nelson is a freelance writer/researcher and the author of five books.

[From WS September/October 2010]

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