Barely three weeks after a Quebec judge rendered a landmark ruling that dismissed a $150,000 action after it was held to be a strategic lawsuit against public participation, otherwise known as SLAPPs, a national organization approved a Model Act aimed at reinforcing existing remedies to deter abusive lawsuits.
In an eagerly awaited judgment, Quebec Superior Court Justice Danielle Turcotte found that a defamation suit launched by Les Constructions Infrabec Inc. against a citizen who asked questions at a municipal council meeting was “motivated by an attempt to intimidate,” marking the first time that a ruling has applied an anti-SLAPP bill sanctioned by the Quebec government on June 2009.
Only Quebec has anti-SLAPP legislation. In April 2001, British Columbia enacted anti-SLAPP legislation but it was short-lived as it was repealed five months later. Anti-SLAPP bills were also introduced in New Brunswick in 1997 and in Nova Scotia in 2003, but were never passed.
SLAPPs are lawsuits, usually defamation actions, initiated against individuals or public interest groups to stifle criticism. The purpose behind SLAPPs is to limit the freedom of expression of the defendants and “neutralize their actions” by resorting to the courts to intimidate them, deplete their resources and reduce their means of actions, according to Vincent Pelletier, former legal counsel at the Quebec Ministry of Justice, who presided over a working group that published a Model Act on behalf of the Uniform Law Conference of Canada (ULCC). Established in 1918, the ULCC seeks to harmonize the laws of the province and territories of Canada and where appropriate the federal law as well.
That was certainly the case with Martin Drapeau, a resident of Boisbriand, an off-island suburb of Montreal. Drapeau, who has a keen interest in environmental issues, was sued after he called for — at a municipal council meeting — an independent auditor to examine the tendering process of a contract to repair a water-filtration plant. The contract was awarded to Infrabec, the only company to submit a tender even though more than a dozen firms made inquiries. Days later, Infrabec sued Drapeau.
“The fact is that the objective (of the suit) was to put an end to a debate sustained by the defendant, which lasted years, according to the plaintiff,” said Justice Turcotte in an oral ruling that was recently published. “Now that is precisely why the new amendments of the Code of Civil Procedure (Code) were adopted.”
The new amendments, entitled “An Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate, attempt to put an end to the use of lawsuits that infringe on the freedom of expression of individuals or public interest groups. Under s. 54.1 of the Code, the Court can on its own initiative promptly dismiss “improper” proceedings at the preliminary stages, particularly when it “restricts freedom of expression in public debate.” Improper proceedings are defined as claims or pleadings that are clearly unfounded, frivolous or dilatory, actions instituted in bad faith or to harm somebody, and conduct that is vexatious or quarrelsome. The scope of the new amendments, points out Montreal lawyer Jean-Pierre Casavant, reach beyond SLAPP suits per se and encompass all frivolous and excessive suits.
The Act goes further. Under s. 54.2, the burden of proof when a party summarily establishes that the action is abusive is reversed. In other words, the plaintiff has to the burden to prove that the proceedings are not excessive or unreasonable, and that they are not unfounded in law.
Infrabec failed on both counts. Informed by the Supreme Court of Canada ruling in Prud’homme v. Prud’homme  4 S.C.R. 663, 2002 SCC 85, Justice Turcotte held that Drapeau had the right to question the municipality’s tendering process. After determining that Drapeau’s line of questions at the municipal council meeting were not defamatory, Judge Turcotte then examined whether Infrabec’s suit was abusive. Noting that one of Infrabec’s co-owners told Drapeau that “he better excuse himself, otherwise he’d find the summer long,” Judge Turcotte found that the defendant proved that Infrabec’s suit was abusive, and that Infrabec failed to prove that its suit was reasonable. Given that Infrabec had the means and intention of conducting legal warfare, Justice Turcotte condemned the company to pay Drapeau $15,000 in damages. (Last December, Quebec’s provincial police force carried out warrants at Boisbriand’s city hall as well as the head offices of Infrabec. The warrants involved a contract awarded by the town of Boisbriand to Infrabec, to repair a water-filtration plant).
“This well-reasoned and well-explained ruling will no doubt discourage those who may have a tendency to launch abusive suits and SLAPPs,” remarked Casavant, who represented Drapeau. “On the other hand, it will please those who lobbied the government to introduce anti-SLAPP legislation while encourage individuals like Drapeau. But let’s not get carried away – every case hinges on the facts of the case.”
Though delighted with the verdict, a Gatineau couple who are being sued by the owners of a dry dump is cautiously optimistic that the legal precedent will help their case and others across the province. Serge Galipeau and Christine Landry face a $1.25 million defamation suit that was launched four years ago after claiming that toxic gases were emanating from the dry dump, which has since been closed by the Quebec Ministry of Environment. The couple, who have so far spent $25,000 in legal fees, are counter suing and seeking $625,000 in damages.
“In principle, the ruling should be a positive development for us and others who face the same dilemma,” said Galipeau, whose case is expected to be heard later this month. “We’re confident that their suit will be rejected and be found to be an abusive action.”
By sheer coincidence, weeks after the Quebec landmark decision, the Uniform Law Conference of Canada approved late last month a Model Act to deter abusive lawsuits by proposing measures that reinforce existing remedies. While rules to limit abuse of process already exist in both common law and civil law jurisdictions in Canada, in practice they “appear to be ineffective” because of the courts’ reluctance to apply them, states the ULCC Model Act.
The Model Act, which can be adapted to apply only to SLAPP if a jurisdiction does not want to target all abuse, recommends bolstering existing remedies including sanctioning the conduct of a party, which should encourage the courts to intervene more often to deter the abuse of the judicial process, said John Gregory, who, along with Pelletier and British Columbia lawyer Russell Getz, wrote the Model Act on abuse of process.
Inspired primarily by the Quebec’s new amendments, the repealed B.C. anti-SLAPP legislation and a private member bill introduced two years ago at the Legislative Assembly of Ontario, the Model Act states that the rule of proportionality is an important tool to help limit abuse of process. In effect in Quebec since 2003, since the beginning of this year in Ontario, and as of this July in British Columbia, the rule of proportionality requires all participants in the judicial process to keep in mind that the pleadings and means of proof must be proportionate, in terms of cost and time, to the nature and ultimate purpose of the action, and to the financial position of each party.
While there is seemingly growing pressure to introduce anti-SLAPP legislation, with some 62 Ontario municipalities adopting resolutions demanding legislation to protect grassroots activism, Gregory says he has no idea whether the Model Act will be picked up provincial jurisdictions as was the case with the Uniform Apology Act, which was eventually enacted by six provinces.
“It depends on the political agenda of each province and territory as to whether they do in fact pick it up or not,” said Gregory. “The Quebec ruling does suggest that there may be some use in doing this.”
Originally published in The Lawyers Weekly.