Where is action on SLAPP suits?

In a ruling on March 1, Ontario Superior Court Justice Robert Beaudoin awarded costs to the defendant in a case for which the claims “gave rise to a reasonable suspicion” that the matter involved strategic litigation against public participation.

The matter, Salewski v. Symons, involved a libel claim stemming from the financial troubles of the Sedbergh School Association, a private boarding school near Montebello, Que.

One of the plaintiffs, Doyle Salewski Inc., was acting as monitor after the school’s board of trustees sought debtor-in-possession financing. The defendant, James Ivor Symons, had been part of a group investigating the purchase of the school.

During negotiations related to the sale, Symons sent a letter to the Office of the Superintendent of Bankruptcy Canada complaining about the other plaintiff, David Macaskill, a self-employed financial consultant retained by the monitor.

In the letter, Symons alleged Macaskill was in a conflict of interest due to his previous roles with the debtor. The office responded by referencing its duty to keep a record of complaints and investigate as the superintendent determines but said it would be closing the matter.

According to Beaudoin’s March 1 costs ruling, the plaintiffs sought $1.2 million in damages from Symons. But Beaudoin, citing the absolute privilege afforded to Symons’ complaint letters to the office, struck the claims earlier this year. In doing so, he awarded Symons $20,000 in costs.

He also referred to the SLAPP issue, noting the purpose of such lawsuits is to “silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism.”

The case is a reminder of the ongoing wait for action on the SLAPP issue. In late 2010, a panel composed of University of Toronto Faculty of Law dean Mayo Moran and lawyers Brian MacLeod Rogers and Peter Downard released their report recommending legislation to deal with SLAPPs.

The recommendations would see the courts hear a motion for a remedy to a SLAPP within 60 days. A defendant bringing such a motion would have to demonstrate that the matter involves the protected activity of public participation, after which the plaintiff would, among other things, have to prove the case still has merit.

In the Salewski case, it’s unclear whether the defendant would meet that test, but given that the plaintiffs launched the claim in March 2011, having such a mechanism would have resulted in a more expeditious consideration of the SLAPP issue.

So while Symons ultimately prevailed with costs, a SLAPP mechanism would potentially have been of some benefit.

But more generally, given the concerns over lawsuits seeking to hamper legitimate public criticism, particularly in environmental matters, it’s clear we do need some sort of mechanism to deal with SLAPPs.

Hopefully, then, the government will quickly come up with a solution that balances the legitimate rights of plaintiffs to seek justice while protecting defendants from malicious lawsuits. It’s now time for action.
— Glenn Kauth

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