Ecojustice Blog – Special Update Posted on October 12, 2011 (updated: February 17, 2015)

A victory for Canadians’ right to speak up for environment

Kimberly Shearon headshotKimberly ShearonStaff

By Jennifer Agnolin, Staff Lawyer

Ecojustice scored another win in the battle to protect Canadians’ right to speak up for the environment.

In a decision handed down yesterday, the British Columbia Supreme Court ordered a B.C. man to pay the full costs of his failed lawsuit against a small conservation group – in part because of the silencing impact the suit had on the group.

Robin Scory of Langley, B.C., launched the suit in 2010 against the Glen Valley Watersheds Society and two citizens after they publicly raised concerns that his proposed fill site could harm the local environment. The site was being considered for regulatory approval when the concerns were raised. The suit alleged defamation, among other things, and claimed a total of $13-million in damages.

Ecojustice represented the Society in this case and successfully had all claims against it dismissed earlier this year. In that decision, dated May 25, 2011, the judge held that the case was meritless and that the Society’s public statements about what could happen to the environment were “opinions on a matter of public interest” and not defamatory.

We were back in court in September to argue for special costs. Special costs can be awarded where there has been unnecessary, scandalous or reprehensible conduct and can allow the successful party to recover all of the money it spent on the case.

The judge ordered yesterday that Mr. Scory pay special costs to the Society, finding that his conduct throughout was sufficiently reprehensible. The impact of the lawsuit was also “an important factor” underlying the order. “An order for special costs acts as a deterrent to litigants whose purpose is to interfere with the democratic process,” the ruling reads. “Public participation and dissent is an important part of our democratic system.”

The decision relies on the 1999 British Columbia case of Fraser v. Saanich, where a lawsuit against a group of citizens opposing a rezoning application was dismissed with special costs. That decision was the first in Canada to find that a lawsuit was a SLAPP suit.

What’s a SLAPP suit?

SLAPP suits (strategic litigation against public participation) are lawsuits against citizens and public groups designed to intimidate the target into silence, thereby undermining their impact on public decision-making processes and public opinion.

SLAPPs are a serious problem for public interest groups in Canada, particularly environmental organizations, and there have been several calls over the years for protective laws. Quebec is the only province in Canada that has anti-SLAPP legislation in place right now. British Columbia had the Protection of Public Participation Act in 2001, but that was repealed a few short months after it was passed with a change of provincial government. More recently, Ontario created an expert advisory panel to examine how to prevent SLAPP suits. The panel’s report, issued in October 2010, calls for anti-SLAPP legislation.

While this week’s ruling does not characterize the lawsuit against the Society a SLAPP, it finds that it “achieved one of the recognized purposes of SLAPP litigation…it effectively silenced the respondents’ public opposition…” This underscores the importance of public participation and serves as a warning that lawsuits that effectively stifle public participation can be penalized. Local citizens and groups are often the best stewards of their environment and they should be able to publically voice their concerns without being sued.

The other two defendants in this case were represented by separate counsel. The claims against them have also been dismissed, again with awards of special costs.

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