Toronto Star editorial
Residents wanting to protect natural areas or their neighbourhoods have long faced an uphill battle against developers with deep pockets, experience with planning laws, and easy access to expert help.
Intimidating as that is, there's more: residents who take on such battles risk financial ruin if the developer sues them for legal costs. They are known as SLAPP suits – an acronym for Strategic Lawsuit Against Public Participation – and they are designed to intimidate critics.
In his annual report Tuesday, Ontario Environmental Commissioner Gord Miller urged that the province develop legislation that would provide the public with some protection from SLAPP suits.
Quebec and many American states already have anti-SLAPP laws. Generally, they provide judges with more discretion to throw out suits quickly if they are deemed to be merely manoeuvres to stifle public participation. In the Ontario context, such legislation would also have to apply to the Ontario Municipal Board. That's where most of our development battles are fought, not in the courts.
In one recent case, a group of residents lost their fight at the OMB against the proposed Big Bay Point resort on the shores of Lake Simcoe. They then faced a $3.2 million claim for costs from the developer.
Rightly noting that to award such costs would create "a chilling effect" on public participation, the OMB denied that claim. But the knowledge that the decision could go the other way the next time may well discourage future OMB challenges by resident groups.
Municipal Affairs Minister Jim Watson doesn't believe that an anti-SLAPP law is needed because the OMB has handled past cases appropriately. But Watson is missing the point.
"SLAPP suits, whether successful or not, affect far more than the specific individuals," reports the environmental commissioner. "Such lawsuits can deter others from participating." And given that, in Miller's view, the planning system is already "hugely weighted" in favour of developers, that would be a retrograde step.
Anti-SLAPP legislation would send a strong message that citizen engagement is welcome in the planning process in Ontario. Residents should not have to fear financial ruin if they get involved.