A Superior Court has ruled that a Centretown community activist has the right to lobby government and businesses that deal with it and ask for information but Ontario activists still lack protection against legal intimidation from those they challenge.
Albert Galpin has been lobbying the federal government to move its Gilmour Street parole office since it moved there in 2004. His exception to its location is its proximity to Elgin Street Public School, a violation of a Corrections Canada policy not to locate its offices within 300 metres of a school.
Galpin says he had all sorts of questions such as “Who decided to locate the office here?” and “How long is the lease for?”
He filed about a dozen access to information requests over five years as per instructions from Corrections Canada.
In 2009, Galpin says, he was surprised to find out the building’s landlord, Bytown Investments’ president Brian W. Karam, was suing him for $3.8 million for economic interference and for excessive access to information requests.
On May 5, Justice Robert Beaudoin ruled that “as a private citizen, Galpin was exercising his democratic rights to access to information. The fact that he may have been persistent does not make it unlawful."
Galpin’s lawyer, Sean Bawden, says that the suit against his client fits the criteria of a SLAPP lawsuit.
SLAPP stands for strategic litigation against public participation and typically involve powerful plaintiffs making unfounded claims against their critics. Usually, the plaintiffs don’t expect to win their case but hope to burden their critics with legal bills until they abandon their cause. The result is intended to silence their critics and intimidate future critics from challenging their authority.
“This sends a clear message to all Canadians that if we do see wrong doing by our government or officials then we do have the right to question them without third parties coming after us to keep us quiet,” says Galpin.
He says that despite the fact that he has lobbied for the parole office to move that it doesn’t affect the lease with Karam because his building is rented through Public Works which will pay the bills until the lease ends in 2014.
Galpin says he is relieved that the court dismissed the suit but he still may be on the hook for the legal fees he has incurred over the last year due to the suit.
Bawden says this is the dangerous aspect of SLAPP cases.
He says that while he recognized that Karam’s case had no merit he still had to go through the lengthy procedures required by civil suits which unnecessarily created a financial burden for his client.
“We had to create a huge index of all the e-mails and telephone calls my client made in regards to this issue, just to have them thrown out with the case that could have been thrown out from the beginning,” says Bawden.
Bawden says successful defendants in civil suits in Canada are entitled to recover between 60 to 90 per cent of their legal costs from plaintiffs; however, that would still leave Galpin holding the bag for some of his legal costs.
Bawden must submit Galpin’s bill to the judge by May 25, who will then rule how much of it will be paid by Karam.
According to Bawden, no Canadian judge has ever awarded 100-per-cent cost recovery and he says that’s what Galpin will be seeking.
Galpin will find out about a month after Bawden submits his costs whether or not he will be the first Canadian to recover all of his legal fees in a civil suit.
Anti-SLAPP legislation, such as the private member’s bill that Ontario NDP Leader Andrea Horwath introduced in 2008 could have prevented the case in the first place says Bawden.
He says that. If passed, the legislation would remove a lot of the procedural steps allowed in a civil suit.
“It would have gotten this over with a lot sooner, and it would ensure that these powerful people would have to repay the legal costs that targeted individuals face,” says Bawden.
Horwath’s anti-SLAPP private member’s bill died in 2008 after prorogation. She says the NDP will re-introduce the bill in the current parliament although they haven’t set a date.
“This is exactly the point the bill that I had introduced was trying to address. It provided a clause that said that people who are speaking out on issues for the public interest would not be subject to lawsuits that stem from them simply voicing their opinions,” says Horwath.
She says she’s been in touch with a number of people who have been subject to SLAPP suits since 2008 and that she will improve her bill to address their issues.
Horwath says that in her community, Hamilton, these kinds of problems occur too frequently when her constituents challenge developers or industries that may have a negative impact on the community.
“The point is to create an environment where it’s not as easy for these well-heeled interests to use the courts to intimidate citizens,” says Horwath.
Galpin says that his legal fees are in the neighbourhood of the tens of thousands. The community created a fund last year to raise money for his legal expenses but Galpin says that it falls short of the amount required to cover his lawyer’s bill.
If he is successful in winning all of his legal expenses from Karam, Galpin says he will send all of the donours’ money back with a big thank you.