SLAPP Suits - Another tool in the developer’s kit?

[Editors:  BC Supreme Court granted the injunction against Site C protesters today. http://www.cbc.ca/news/canada/british-columbia/bc-hydro-granted-injunction-against-site-c-protesters-1.3469570 ]

Lawyers for BC Hydro and six residents of the BC Peace region are in the BC Supreme Court this week in Vancouver. 

What is BC Hydro Requesting?

BC Hydro is seeking an injunction to remove campers from the Rocky Mountain Fort camp, located near the site of the 18th century fur-trading fort of the same name on the south banks of the Peace River. The campers are protesting the construction of the proposed Site C dam and their presence has prevented site-clearing operations by BC Hydro contractors since December 31.

In addition to the removal of the campers, BC Hydro is also asking the Court to assess general, exemplary and punitive damages and costs (and interest on those monies) against them. It alleges that the campers have conspired, intimidated, trespassed on property it has a right to use, created a nuisance and intentionally interfered with BC Hydro’s economic relations through unlawful means.

These claims are serious and, without context, invoke images of armed and organized militants such as those who occupied the Oregon wildlife refuge earlier this year.

In the case of the Rocky Mountain Fort defendants, the six named include: two farmers, an equestrian park owner, an aboriginal patient liaison with Northern Health, a social worker and a former lands-office employee from a local first nation.

Why Not Call the Police?

Why would BC Hydro play such a heavy hand, instead of simply calling in the RCMP to remove the campers, as was done with the protesters who blocked the road to a Site C worksite several months ago?  An ice hockey analogy may be helpful:

In hockey, a slapshot is the hardest shot a player can make, however, because of the violent motion involved, it is not always the most accurate.

Similarly, a strategic lawsuit against public participation — a “SLAPP suit” — is a hard shot type of lawsuit that can be taken against another target.  These targets are usually small grassroots organizations or political activists involved in environmental or land use disputes.   These individuals or group may be “SLAPPed” by the corporation that they are protesting against.  Intended to intimidate and censor critics the court filings for these lawsuits, like a slapshot, may be lacking accuracy in how the actions of the individuals named are described. 

Civil actions with no reasonable basis or merit that are brought with the intent of stifling public participation and debate are SLAPP suits. Being required to reply to these suits depletes a defendant’s time, finances and emotional resources.  It burdens them with the costs of a legal defense and is designed to deter them and others from participating – or continuing to participate - in public criticism of a particular project.

Notwithstanding their strategic power, in BC, very few of civil actions are actually SLAPP suits and the ability to bring a legitimate civil complaint against someone is a fundamental part of our justice system.  Being “made whole” through the repayment of an unpaid debt, for example or stopping someone from doing something if irreparable harm will result is unquestionably positive.

Is the BC Hydro Action Against the Campers a SLAPP suit?

At this point, the unsatisfying answer is “maybe”. Only the trier of fact, the Vancouver Judge, can determine whether or not this case has merit or whether it was advanced by BC Hydro with the intent of stifling opposition to the Site C project.

Whatever the outcome, however, the chilling effect that this has already had on free speech in the Fort St. John area is worrisome. 

Chilling Effect on Free Speech

Personal Peril? The construction of Site C has always been contentious.  I have clients who support the Project and others who do not. The issue is even more divisive as work becomes more scarce in our region. “Outing” the protestors by publishing their names (so that they can be searched in the phone directory) and home addresses is a dangerous game and it is reasonably foreseeable that it might pit neighbours against each other.

The Threat of Losing One’s Home? That documentation for the lawsuit was filed in a registry in Vancouver and that once served, campers were required to formally respond within 21 days, means that they have had to “lawyer up” and incur tremendous personal expense in order to defend themselves in a venue far from home.

Monitoring Social Media? Once it became known that lawyers for BC Hydro were monitoring the personal Facebook pages, Instagram shares and Twitter feeds of campers and their supporters, the sharing locally generated, legitimate information on social media regarding Site C slowed significantly.

This is an entirely rational response to the fear of the unknown consequences of simply having “liked” or commented on a social media post.  The legal team for BC Hydro has filed documents with the Court that include dozens of pages of personal Facebook book postings. These postings, in some cases, include all of the comments made to those posts by law-abiding residents of Northern BC and elsewhere. While BC Hydro has done nothing (legally) wrong by pointing to these unrestricted postings, the potential for the use of such words and images in Court going forward, however, will reasonably give people pause before freely commenting in the future.

Whether it has a reasonable basis in fact or not, there is no question that the lawsuit brought against the campers by BC Hydro has served to intimidate some of its opponents, deplete the resources of the campers and reduce their ability to participate in public debate, while deterring others from speaking freely on matters of public importance. 

If the campers are, as alleged, acting in contravention of the Criminal Code or the BC Land Act send in the RCMP and hold them accountable.  Make the process open, public and specific.  Don’t threaten to bankrupt the families of the protesting campers. Don’t set them up to be targets in their own community. Don’t act in ways that cause reasonable, law-abiding people to question the consequences of expressing their legitimate opinion.

That this bubble of intimidation has spread beyond the campers offends and concerns me deeply as a Canadian.

In Canada, freedom of thought belief, opinion and expression, freedom of peaceful assembly and freedom of association are fundamental Charter Rights. They are basic to our individual liberty and fundamental to the success of a free and open democratic society.  In a healthy democracy, everyone must be free to discuss matters of public policy, criticize or praise governments and corporations without reproach and offer up their own solutions to social problems – no matter whether we can all agree with what is being said or not.

Colleen Brown is a lawyer based in Fort St. John who, after a few tours around the sun as a Wall Street attorney and large-scale renewable energy developer in Northern BC, seems to have found her niche.  If you would like to see an article on a particular general legal issue, please contact her at northernlawyer@yahoo.ca. Unfortunately, no specific questions of law can be answered via e-mail or in the column.

Note that all data and information provided in this column is for informational purposes only. Please contact a legal professional near you if you need assistance or more information on a particular matter.