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Whistle-blowers should note Quebec's Anti-SLAPP law: Good idea, poor execution

posted Jun 8, 2011, 6:41 AM by Esther Matharu   [ updated Jun 8, 2011, 7:05 AM ]
There has been some debate as to whether the young Page, Brigette DePape, a recent University of Ottawa graduate who carried a sign reading "Stop Harper" and walked out in front of Gov. Gen. David Johnston as he read the afternoon speech, was justified in her action or showing 'contempt' - if that word means anything anymore - to Parliament.

In our own interpretation, her action was a call to reality and she is a whistle blower.  Because she did more to show Canadians who are oblivious as to the degree and acceleration that our civil freedoms are being eroded as any ostrich is. Because she had the courage to do what we all wish we had the courage to do. Because she has more to loose than the older generation. Finally, because we need more acts of civil disobedience, not less.

Talking about whistle-blowers, here is a good article from The Gazette June 8, 2011 on what Quebec is doing (and all Canada should be doing) to protect individuals who stand up for what is right and expose the manipulations that powerful people do to get their own way.

The Quebec government admirably took the lead in legislating against so-called SLAPP suits. The law to counter them was passed two years ago this month, the first such in this country. But as a Gazette report this week noted, the law in practice has been less than an unqualified success.

The acronym stands for Strategic Lawsuits Against Public Participation. The intent of such suits is to intimidate critics into silence and distract them from their cause by sapping their time, energy and financial resources in fighting the suits. SLAPPs are most typically initiated by companies targeted by environmental activists, but have been launched against folks who merely raise embarrassing questions in public forums.

Such was the case of a Boisbriand resident who rose at a city-council meeting to ask for an independent audit of the tendering process for the repair of a water-filtration plant. Days later he was hit with a $150,000 defamation suit by the firm that snared the contract.

In that case, the law worked smartly. The judge invoked the anti-SLAPP law, found the suit was motivated by an attempt to intimidate and ordered the firm to pay $15,000 in damages.

Not so fortunate is a couple from Cantley, near Gatineau, who agitated for the closure of a reeking dump down the road from their home. At one point the dump caught fire, forcing the evacuation of nearby homes. The pressured dump owners responded with a $1.25-million lawsuit against the protesting couple. After the couple spent more than four years mounting a defence against the suit, it was finally dismissed as a SLAPP last year. But the damages fell far short of what the couple say it cost them in lawyers' fees, time off work, and diminished quality of life. In addition, one of the two owners of the dump has filed for bankruptcy, while the other has yet to respond to the ruling. At this point, the prospect of compensation being paid appears slim.

Despite the anti-SLAPP law, such suits are still being filed. Earlier this year an environmental activist who campaigns against what he feels are abusive mining practices was targeted for an interview he gave to a newspaper. He charged that by not requiring mining and drilling firms to pay royalties on resources that they extract and subsequently sell in the exploration phase of their activities, the provincial government was enabling small-scale theft that would open the door to large-scale theft. Despite the fact that he had not named it specifically, a Quebec petroleum-exploration firm sued him and the newspaper for $350,000. Six months after the suit was filed, the courts have not yet ruled on whether it should be dismissed under the anti-SLAPP rules.

Environmental groups are making proposals to upgrade the law, including establishing a time limit of three to six months for rulings in cases where a SLAPP is suspected, and higher punitive damages than the $15,000 to $50,000 awarded in anti-SLAPP cases so far. Higher damage awards would be more likely to discourage well-heeled firms for which such a small fine is a feeble deterrent - and perhaps even a good investment, if their lawsuit has the effect of silencing critics.

The anti-SLAPP law is good legislation that could be made better. The Charest government would do a public service and get respect from a constituency that tends to scorn it by taking the recommendations from environmental groups on the matter into serious consideration.