Executive Summary

This report examines the phenomenon of Strategic Lawsuits Against Public Participation (SLAPPs) in Canada. SLAPPs are lawsuits or the threat of a lawsuit, directed against consumers or individual citizens when they publicly criticize products or services or advocate for change. The lawsuit usually takes the form of an action for defamation.

The purpose of a SLAPP is to intimidate the target of the lawsuit into silence. By moving a dispute into the legal arena, the consumer is immediately placed on the defensive for exercising a right to complain and faced with the prospect of legal costs as well as potential liability if the suit is lost. As a result, many SLAPPs may fly under the public radar, as the threat of a SLAPP may intimidate its target into withdrawing the public complaint or criticism.

The report describes a number of lawsuits or threats of a lawsuit in Canada that fit the definition of a SLAPP. This evidence suggests that SLAPPs are very much a Canadian phenomenon and have been initiated against consumers for public criticism of products or services as well as against individuals for advocating on environmental issues.

The report briefly analyses the constitutional questions raised by SLAPPs and draws comparisons to the constitutional and judicial treatment of SLAPPs in the United States. Targets of SLAPPs and some legal analysts have suggested that SLAPPs infringe on the freedom of expression rights outlined the Canadian Charter of Rights and Freedoms. Unlike the United States, legal actions between non-governmental parties (which is the form of most SLAPPs) have not had the protection of the Charter. The report examines two cases that have made strong statements about the consumer's right of free speech, suggesting that there may be a widening of the application of the Charter to cases involving consumer free speech.

Finally the report examines legislative responses to SLAPPs in Canada and the United States.   A number of U.S. states have enacted anti-SLAPP legislation. Canada has a much more limited experience with anti-SLAPP legislation. British Columbia is the only province to have enacted anti-SLAPP legislation, which is was in force only for a short period before repeal by an incoming provincial government.

The report concludes by suggesting that SLAPPs require a legislative response. The evidence suggests that the SLAPP phenomenon is very much alive in Canada. An understanding of the purpose behind SLAPPs and the nature of the legal process indicate that judicial responses are not adequate to protect consumers from the damaging effects of SLAPPs. Because SLAPPs ultimately engage the critically important right of freedom of expression, a legislative response is warranted.

The report offers some analysis of what the components of anti-SLAPP legislation in Canada should contain.   Such components would include: mechanisms for early dismissal of a SLAPP, a mandatory cost provision for successful defendants of SLAPP suits on a solicitor and client basis, providing a defence to defamation actions and defining a right of public participation.