There is a reason why Hollywood legal thrillers always cast the big company as the defendant and never the plaintiff in lawsuits: there is nothing romantic about being sued by a company with deep pockets. There are no opportunities to bang the table and demand the truth; no vindication through articulate and impassioned speeches to the court; and most importantly for an activist, no chance of a victory on the substantive issue that instigated the lawsuit in the first place. In most cases, victory for a defendant in a strategic lawsuit against public participation (or a "SLAPP" as they are commonly known) is pyrrhic: a no cost settlement that leaves you no further ahead and much poorer than when you began.
A SLAPP is a lawsuit (or threat of a lawsuit) used mostly by private interests to intimidate opponents into silence or acquiescence. In the Canadian context, SLAPPs have reportedly been used to silence dissent on a wide range of issues, including environmental practices, zoning by-laws and consumer complaints. The purpose of the SLAPP is not normally to win an actual legal victory, but to change the channel on an issue by putting individual citizens and public interest groups on the defensive. A SLAPP moves the fight into the legal arena where corporate Goliaths have a massive advantage which they can exploit to suppress criticism and ultimately discourage activism. Lawsuits are almost always a painfully slow, technical and expensive process that favours those with greater resources and even if successful, a defendant will rarely recover more than a third of their actual legal costs. As the proceeding drags on and expenses mount, the pressure to capitulate and reach some form of settlement can be overwhelming.
While a SLAPP can take many forms, the most notorious cases involve allegations of defamation, interference with economic relations, and conspiracy. Such lawsuits usually seek both monetary damages and injunctive relief. They can be effective because the legal system is not designed to efficiently screen lawsuits for improper motives. While a lawsuit brought for purposes other than the assertion of legitimate rights is undoubtedly an abuse of the court's process, judges are generally reluctant to exercise their inherent jurisdiction to dismiss abusive litigation, except in the clearest of cases.
The rules of civil litigation in most Canadian jurisdictions do provide mechanisms to attack abusive lawsuits at an early stage of the legal process, such as the rules in British Columbia for summary trial or the striking of a pleading that discloses no reasonable claim or is unnecessary, scandalous, frivolous or vexatious. While such procedural safeguards are conceptually sound, in practice it is extremely difficult to dismiss a claim using summary procedures if the court is being asked to resolve complicated issues and conflicting evidence. Striking a claim for being unnecessary, scandalous, frivolous or vexatious is only really possible where it is plain and obvious the case is sure to fail. In both cases, the instigator of a SLAPP can gain an almost insurmountable advantage by initiating proceedings that are factually complex and involve multiple causes of action. Like an unrelenting game of whack-a-mole, the lawsuit does not end unless the defendant can effectively knock down all of the allegations.
Starting unjustifiable litigation is itself a ground for a lawsuit in Canada. The tort of abuse of process occurs where a legal proceeding is commenced with the predominant purpose of furthering some indirect, collateral and improper purpose outside the ambit of the litigation. Unfortunately, the tort of abuse of process is of little assistance to most defendants in a SLAPP. First, the intention to silence a critic through a lawsuit is not, in and of itself, an improper purpose in a defamation lawsuit. Second, even where a defendant in a SLAPP and commences a counterclaim for abuse of process, the decision there may be delayed until the resolution of the SLAPP itself. In other words, there is very little chance to explore a plaintiff's motives in the midst of being sued.
This point was recently confirmed by the British Columbia Supreme Court in a lawsuit that some commentators have labelled a SLAPP. In Canwest Mediaworks Publications Inc. v. Horizon Publications, Canwest commenced a lawsuit to enforce its intellectual property rights after the publication of a mock edition of the Vancouver Sun. The parody mocked the Sun's coverage of the Israeli Palestinian conflict, which has previously received criticism for a perceived lack of balance. The defendant Gordon Murray alleged in his defence that the true purpose of the lawsuit was not to protect intellectual property but to stifle expression of a contrary point of view on that issue. In effect, Mr. Murray characterized the lawsuit as a SLAPP. The court ultimately agreed with Canwest that its motives for bringing the lawsuit are irrelevant to Canwest's intellectual property infringement claim and explained that the "mere assertion in a statement of defence that a lawsuit is an abuse of process does nothing more than assert -- in an inappropriate, overly-polemical manner -- that the plaintiff's claim is without merit. It has no place in a [defence]."
While the Canwest suit, which remains ongoing, may indeed strike some readers as a SLAPP, it also nicely illustrates the difficulty for SLAPP defendants and judges confronted by such lawsuits. Canwest has the same right as anyone to enforce its intellectual property and unless it is plain and obvious that a claim has no merit, no one should be deprived of the opportunity to prove their case at trial. The difficulty facing ordinary citizens and public interest groups, however, is that by the time a trial is finished the damage may already be done.
Read last month's Pro Bono column here.
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