The defendants in a defamation lawsuit related to a proposed real estate development in Qualicum Beach are hoping to have the case dismissed under relatively new B.C. legislation intended to protect the public’s right to free speech.
“This has all the hallmarks of a SLAPP suit,” said Ezra Morse, a 41-year-old software engineer and defendant in the case. “Developers only have to throw a few thousand dollars at trying to get advocates to shut up.”
SLAPP suits — Strategic Lawsuits Against Public Participation — are what the new legislation aims to prevent. Often, they’re filed by large groups with deep financial pockets and a wealth of legal resources against engaged citizens and activists who lack both.
Morse and the Qualicum Nature Preservation Society, a 148-member organization he co-founded in 2020 and serves as president of, are named in a civil claim filed in May by Richard Todsen, Linda Todsen and Todsen Design & Construction Ltd.
In 2019, the married couple’s company applied to rezone 6.4 acres of privately owned forested land in Qualicum Beach that’s part of a larger treed area on the east side of the Vancouver Island town. They say the parcel is not conservation land, protected or environmentally sensitive.
Morse and the QNPS oppose the proposal and have argued strongly against it, including in public comments and Facebook posts. They see it as a threat to a larger 200-acre ecosystem composed of Douglas firs and an encroachment on the town’s greenbelt.
But according to the developers, a series of statements made by Morse and the QNPS — including allegations regarding bribery, an assault and community opposition — were defamatory.
“The plaintiffs have been greatly injured in their character and has [sic] suffered damage,” their notice of claim said. “The defendants were motivated… by actual and express malice.”
The defendants say that’s not the case and that the lawsuit — filed in the run-up to the town’s 2021 municipal byelection in which the proposed development was an issue — is an attempt to discourage them from speaking out on a matter of public interest.
The case will be a test of B.C.’s Protection of Public Participation Act, a law introduced in 2018 to shift the balance in such cases. PoPPA was passed by the provincial legislature the following year.
“The act strives to improve access to justice and protect freedom of expression, while allowing for legitimate claims that involve real harm,” a government news release said.
The law allows for a defendant to apply to the court to have a lawsuit dismissed if it “impinges on the defendant’s ability to speak freely on a matter of public interest” and the plaintiff can’t convince the court that the harm they would suffer from the free speech would outweigh the public interest in protecting it.
It also adds a powerful disincentive for filing cases that might be subject to such an application by allowing the courts to make the plaintiff fully responsible for both sides’ legal costs.
B.C. briefly had a similar law on the books in the early 2000s, but the BC Liberal government repealed it shortly after winning office in 2001.
“Lawsuits that serve to silence and financially exhaust those exercising their right of expression exploit our legal system and only serve those with significantly deeper pockets,” Attorney General David Eby said in the release re-introducing the legislation.
“We’re committed to ensuring a robust, healthy democracy that defends British Columbians’ fundamental rights — in part, by helping people who want and deserve the freedom to peacefully engage in public debate without fear of unreasonable and financially ruinous legal action against them.”
In the Qualicum case, Tollefson Law Corporation is representing Morse with funding from West Coast Environmental Law’s Environmental Dispute Resolution Fund. The case is precisely the kind of claim where PoPPA is intended to apply, says the application to dismiss filed July 6.
“The plaintiffs’ development proposal has implications for, and may set a precedent regarding, the protection of Coastal Douglas-fir forests and the future of urban development in the Town, and is a matter of broad public interest within the community,” the application said. “This application will be the first time that the B.C. Supreme Court applies the PoPPA in the environmental context.”
The Todsens’ claim repeatedly takes the defendants’ expressions out of context, in some instances misrepresents what they said, and is overall without merit, the application argues.
“The evidence suggests that the purpose of the lawsuit is not to seek legal remedy for any damage to the plaintiffs’ reputation,” it said. “Rather, the true nature of this lawsuit is to intimidate the defendants and other members of the public who have spoken out against the development proposal, and to limit freedom of expression and public participation during a municipal by-election.”
Along with dismissing the case, the court should award damages to the defendants as the new B.C. law allows, it says.
None of the allegations have been proven in court.
“In a situation where the targeted comments involve lawful political expression and where they’re on a matter of public interest or importance… that’s squarely within the ambit of the protection of the legislation,” said Chris Tollefson, founding principal of Tollefson Law, who is also a professor at the University of Victoria and a founding executive director of the Pacific Centre for Environmental Law and Litigation.
In that instance, the court should decide whether the matter is allowed to proceed, and it’s up to the plaintiff to convince it that it should — that the claim has substantial merit and there are no viable defences, says Tollefson.
“Our position is that the plaintiff will not be able to establish that and we are confident that this claim will therefore be dismissed,” he said.
Daniel Reid, a lawyer with Harper Grey LLP in Vancouver who is representing the plaintiffs, says his clients will oppose the application.
He notes the PoPPA is relatively new in B.C. and the courts are going through a process of determining the balance between freedom of expression on matters of public interest and the right of parties to protect their reputations in cases where they may have been defamed.
“They are both compelling interests and it’s a weighing of those interests which is going to be fact-specific on every case,” Reid said.
Tollefson notes a similar law in Ontario has led to proceedings being heard by the Supreme Court of Canada and cases are currently making their way through the courts in B.C., setting precedents that lawyers are watching closely.
“I think what we’re seeing are efforts by the courts to make sure the legislation is interpreted in a way that still provides ample protection for the rights of plaintiffs to not only have their reputations protected, but to have their day in court,” Tollefson said.
“We’re developing a case law here that is interpreting the nuances of the legislation and in turn, as new cases come forward, litigants will have to address what the courts have said as well as what the legislation says. But ultimately having legislation like this in force is very important to people who are concerned about political expression and public participation.”
While the PoPPA is meant to streamline cases, it still requires substantial preparation. The Qualicum Beach case includes a 13-page filing supported by another 379 pages of affidavits.
Reid says he was involved in another B.C. case where a PoPPA application required 13 days of hearings and some 7,000 pages of documentation.
Vancouver lawyer Douglas Eyford wrote a piece in March about a dispute where the B.C. Supreme Court ruled that his client should have his case proceed — despite an application from the other side to have it dismissed under PoPPA.
“My understanding is the legislation was enacted so that powerful corporations or individuals couldn’t intimidate the free flow of information in society and attack people that have written stories or published statements about their business interests or other initiatives,” Eyford said in an interview.
“Certainly it would appear to me that in the cases I’m aware of in British Columbia, the act is being used by people who are trying to use it as a shield in cases where they’ve been sued for defamation and they don’t seem to fit the pattern of what I understood to be the object and purpose of the act.”
Eyford says he is unfamiliar with the Qualicum case, which had just been filed, but that from a brief description it sounded more like what the law is intended to address.
“I think it’s still early days,” he said, adding that it’s a time of transition when lawyers, clients and courts are figuring out how to apply and adjust to the new law.
PoPPA could well play a role in discouraging people from filing defamation claims that may not succeed, he says.
“I expect lawyers who practise in this area will explain to clients both the potential for this type of application being made and the costs associated with that type of application, and the risk the application could successfully result in a claim being dismissed before it’s heard on the merits.”
In an emailed statement to The Tyee, a spokesperson for the B.C. attorney general says it’s too soon to draw firm conclusions about the effectiveness of the policy underlying the legislation, but that the courts are providing important guidance on interpreting it.
“The legislation was meant to strike a balance between legitimate claims respecting reputation and economic interests while acknowledging the need to protect freedom of expression on matters of public interest,” they wrote. “The courts are in the position of determining how to apply that balancing to individual cases, guided by the legislation passed in 2019.”
In Qualicum Beach, Morse says the Todsens’ case seems to be an effort to silence him and the most influential environmental organization in the area.
“Our communities belong to us and we have a right to say what happens here,” he said, adding it can be intimidating to speak publicly about what you believe in. “I’m proud of standing up. I source everything I say with documents. I think they made a real big mistake trying to intimidate me into silence.”