The Ontario anti-SLAPP legislation and the right to free and open expression on matters of public interest

In recent times, it has emerged that corporations are increasingly using ordinary legal instruments to hush human rights and environmental defenders. Such a phenomenon, which is known as “Strategic Lawsuit Against Public Participation (SLAPP),” is based on the extreme asymmetry in the balance of forces between corporations and activists. The misuse of legal actions to safeguard corporate interests is not a novelty. How to forget the landmark case McDonald’s Corporation v Steel & Morris [1997], dubbed “McLibel”, which was the result of a libel action brought by US fast-food giant McDonald’s against two environmental and social justice activists – Helen Steel and David Morris. However, as noted also by the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, such an unethical practice is currently is growing at an alarming pace and our legal systems appear to be open to abuse.

In a previous blog post entitled “Silencing Human Rights and Environmental Defenders“, Prof. Jeremie Gilbert wrote about this corporate misconduct and clearly illustrated the abuse of the law that companies utilize in order to silence their critics. In summary, SLAPP is a tactic used primarily by large corporations to stop a person(s) or another organization from speaking freely against them on behalf of public interest. A SLAPP lawsuit diverts precious time, money, and energy away from the offending issue at hand. Instead of addressing the offending issue, the defendant must combat a lawsuit that is not designed to win but is designed to force that person to have to respond to the lawsuit. This is an effective strategy for a company as it pits its usually larger pool of resources to an individual or an activist organizations’ smaller resource pool. The objective of the is not congruent with the reason for which the lawsuit is being used, as such it is an abuse of the legal system used to stymie a legitimate concern being raised against a company. The term SLAPP is thereby coined to define this diversionary lawsuit tactic as is used by companies.

These protests are often the work of individuals or activist groups who are trying to bring attention to abuses of power or corruption conducted by a company. An example of such includes the legal action that the Japanese multinational corporation Daishowa, Inc. initiated against the members of the activist group Friends of the Lubicon in Canada. Friends of the Lubicon, a small group of volunteers based in Toronto, initiated a campaign against Daishowa, Inc. in 1991 as a gesture of support for the Lubicon Crees of northern Alberta. The Lubicon Lake Nation is is a small aboriginal society living in their own sovereign territory in north-central Alberta. It is embroiled in a long-standing land dispute with the federal and provincial governments. Promised a reserve in 1939, the Lubicon claim 10,000 sq. km of resource-rich land in northwestern Alberta. No treaty exists for the area and the Lubicon maintain they have never ceded the land in question. Since 1939, the governments and the Lubicon have been unable to finalize a mutually satisfying land agreement. In 1988, Daishowa purchased a license from the province of Alberta that gave the company the right to harvest trees on 29,000 sq. km in the region, including the land claimed by the Lubicon. Consequently, the Lubicon and their supporters promoted a consumer boycott of Daishowa’s paper product. In response, Daishowa initiated a court action seeking to obtain an injunction to prohibit the boycott campaign and asking the court to award it over $11 million in damages.

Typically, defamation lawsuits are the most common type of lawsuit which are used for such an unethical purpose. Defamation has the added effect of also besmirching the reputation of the individual being targeted by the SLAPP. The reasoning that the plaintiff would use for a SLAPP lawsuit is that defamation cases do not require a large burden of proof from the plaintiff. The low burden of proof allows for a relatively effective lawsuit strategy to defer attention to the real issue at hand, which is the plaintiff’s intention. The solution to being unburdening the defendant is to have an objective test which assesses the merit of the lawsuit and provide a remedy which throws out the lawsuit provided that it can be proven to lack merit. In this way, the lawsuit can be quickly set aside sparing in such a way the defendant the ordeal of a long legal proceeding.

To respond to such a concerning issue the Protection of Public Participation Act 2015 (OPPPA 2015) was enacted in Ontario, Canada. The act, which expressly aimed at amending the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest, added sections 137.1 to 137.5 into the Courts of Justice Act. The OPPPA 2015 offers an active approach to enable the defendant of a supposed SLAPP lawsuit to petition the judge to dismiss the lawsuit if the defendant can show that the lawsuit is potentially related to a matter of public interest rather than for its original purpose. The idea of this section offers two tests: As mentioned before, the primary test is whether or not the lawsuit has substantial merit s. 137.1(4)(a)(i); and the moving party has no valid defense in the proceeding s.137.1(4)(a)(ii). On the face of it, this is a test that the lawsuit defendant has to initially prove that the lawsuit may be in fact used has no merit, and is instead used with the intention to SLAPP the defendant. The way in which s. 137 is worded is also interesting, in that it does not specify a particular type of lawsuit, offering an open form of protection.

Recently, there have been court cases, which provide legal guidance regarding how this anti-SLAPP legislation is to be interpreted in practice. In the case of Ontario Ltd. v. Pointes of 2018, a detailed and critical interpretation of s. 137 was conducted by Doherty J.A.

In the case at issue, 1704604 Ontario Ltd. – a Canadian property development company – wanted to develop a plot of land, to which the Pointes Protection Association (Pointes) – an association which members are committed to maintaining the natural heritage and beauty of the Pointes area (Sault Ste Marie) – objected to on environmental grounds. 1704604 Ontario Ltd. got approval to develop the land from the relevant municipal authorities, against which Pointes reacted bringing up action for judicial review. This judicial review was settled on consent in accordance with an agreement arrived at between the two parties. Following this, the case was appealed to a local tribunal, the Ontario Municipal Board (OMB), where thanks to the evidence that was delivered by Pointes the development was eventually halted. Later on, the company sued Pointes on the basis that it had breached the agreement terms which had stemmed from the judicial review. Pointes held that the lawsuit constituted a SLAPP as the evidence given to the OMB was related to the environmental impact of the proposed development, which constituted a matter of public interest, and for that reason asked for the dismissal of the lawsuit under s. 137. The judge ruled in favor of Pointes, demonstrating that s. 137 could be used as an effective anti-SLAPP legal tool.

The practical application of the s. 137 test transfers the burden of proof onto the plaintiff to distinguish the present legal motion from a SLAPP tactic in order to proceed. The test is further emphasized by Doherty J in paragraph 79: “that it is not for the motion judge to decide whether he or she thinks that the claim has substantial merit. It is for the motion judge to determine whether it could reasonably be said, on an examination of the motion record, that the claim has substantial merit”. In other words, the judge presiding over a SLAPP case has the power to decide the case at hand. Therefore, it is important that judges be knowledgeable as well as informed over the nature of such lawsuits in order to not mistakenly become tied up over the technicalities of the claim itself. The defendant in such a case is very likely to demonstrate to the court that the legal action is a SLAPP, whilst the plaintiff will, of course, attempt to use any means possible to show to the judge that the lawsuit does, in fact, have merit. The issue here is that a judge may end up getting caught up in the legal arguments of a defamation case when s. 137 is designed to subvert any instance of a defamation lawsuit from having merit. Therefore s. 137 is designed to void the grounds upon which the lawsuit would ever have arisen. As such, it may represent a very effective legal tool, which effectiveness relies on the defendant being knowledgeable enough to clearly present the facts to the judicial authority.

The anti-SLAPP legislation adopted by the Canadian province, Ontario, can be used as a draft for other jurisdictions. It offers a suitable defense to throw out unethical lawsuits. Similar legal instruments should be adopted by other jurisdictions, particularly in the U.S. and E.U. as they are large hubs of commercial business. SLAPP lawsuits are far too frequently used as an obstruction to public interests, whistleblowers, and activists. As the judicial authority has stated in Ontario Ltd. v. Pointes, ultimately s. 137 is a response to “[l]itigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage.”

As a final note, it has to be pointed out that, as it happens in many jurisdictions, s. 137 does not offer a definition of “matter of public interest”. As a result, defining such a crucial element is currently a matter of judicial interpretation, which is a situation that inevitably generates a certain degree of uncertainty in an extremely sensitive area of human rights. Furthermore, whilst the legal instruments may be successful at preventing corporations from silencing activists and other members of civil society through strategic lawsuits, it lacks an adequate deterrent effect; more comprehensive forms of protection should include the introduction of sanctions against firms and executives involved in unethical SLAPP techniques.

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