SLAPP Suits: Taseko, WCWC And Potential Legislation

The British Columbia legislature may soon enact legislation designed to address strategic lawsuits against public participation, otherwise known as 'SLAPPs.' A SLAPP suit is a claim filed with the aim of censoring, intimidating or silencing those who

The mere fact that a person, entity or local government may be sued for expressing views can create a chilling effect on discourse around matter public interest

are expressing views on a matter of public interest. Lawsuits can be extremely time-consuming and expensive, even where a defendant is eventually vindicated. SLAPP suits may be initiated by organizations or individuals with significant resources against organizations or individuals with limited resources. The lawsuit need not ultimately succeed to be an effective SLAPP; the process of defending the action, in and of itself, acts as a form of punishment. In addition, the mere threat of being sued can dissuade critics from expressing their views. SLAPP suits, by their very nature, run contrary to the freedom of expression protection provided under the Canadian Charter or Rights and Freedom.

A recent BC Court of Appeal decision, Taseko Mines Limited v. Western Canada Wilderness Committee, 2017 BCCA 431, has re-ignited discussion about the lack of anti-SLAPP legislation in this province. The case arose when Taseko unsuccessfully sued the Western Canada Wilderness Committee ("WCWC") for defamation in relation to five articles posted on its website regarding the building of an open-pit mine; WCWC alleged that the lawsuit was a SLAPP. At trial, the court awarded special costs to WCWC on the basis that Taseko ought to have dropped its claim for punitive damages and that its failure to do so was "an economic threat, and in a defamation case it may have had the effect of silencing critics." The Court of Appeal overturned the portion of the judgment related to the award of special costs.

British Columbia previously had in force anti-SLAPP legislation, albeit only briefly from April 11, 2001 to August 16, 2001 (this legislation was repealed by the new provincial government of the day: Protection of Public Participation Act, 2001 S.B.C. c. 19. rep. by the Miscellaneous Statutes Amendment Act, 2001, S.B.C. 2001, c. 32, s. 28). Currently, Ontario and Quebec have legislation to address SLAPP suits, as do many jurisdictions in the United States. In a letter dated February 7, 2018, several prominent legal minds, including former Justices of the Supreme...