The Lawyers Weekly - May 21, 2010

SLAPP
Continued From Page 1

tioned by the Quebec government in June 2009.

Only Quebec has anti-SLAPP legislation. In April 2001, B.C. enacted anti-SLAPP legislation but it was short-lived as it was repealed five months later.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.

That was certainly the case with Martin Drapeau, a resident of Boisbriand, Que., 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,” said Justice Turcotte
in an oral ruling that was
recently published. “That is pre-
cisely 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 pub-
lic 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 pro-
ceedings 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 amend-
ments, points out Montreal law-
yer Jean-Pierre Casavant, reach
beyond SLAPP suits per se and
encompass all frivolous and
excessive suits.

“The fact is that the
objective (of the suit)
was to put an end
to a debate…That is
precisely why the new
amendments of the
Code of Civil
Procedure (Code)
were adopted.

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 [2002] 4 S.C.R. 663, 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, Justice 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,” Justice 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 Casa-
vant, who represented Drapeau.
“On the other hand, it will please
those who lobbied the govern-
ment to introduce anti-SLAPP
legislation while encourage indi-
viduals like Drapeau. But let’s not
get carried away—every case
hinges on the facts.”
Though delighted with the
verdict, a Gatineau, Que., couple
who are being sued by the owners
of a dry dump is cautiously opti-
mistic that the legal precedent
will help their case and others
across the province. Serge Gali-
peau 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 countersuing and seek-
ing $625,000 in damages.

Reasons: Constructions Infrabec inc. c. Drapeau, [2010] J.Q. no 3746.

Quotes of Jean-Pierre Casavant, Justice Turcotte and Serge Gali-peau were translated from French by the author.

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