2001 Legislative Session: 5th Session, 36th Parliament
The following electronic version is for informational purposes
The printed version remains the official version.
TUESDAY, APRIL 3, 2001
Volume 22, Number 18
[ Page 17633 ]
The House met at 2:08 p.m.
S. Orcherton: I just noticed in the gallery a good friend of mine and good friend of the people in the community I represent. Ms. Elvira Bryant is present in the House today, and I'd ask the House to make her very welcome to these chambers.
B. McKinnon: It gives me great pleasure to welcome to the House today my friends Marilyn Collins and Troy Bowie. They both work for me, and I ask the House to make them welcome.
J. Sawicki: I'd like to introduce a constituent of mine, a young man named Brennan. And while Brennan is only a few months old, he comes from a long line of political and community activists, so I know he will grow up remembering his first visit to this place.
He has brought with him today his mother, Coro Strandberg, and his grandmother, Valana Strandberg. Would the House please make them welcome.
J. Dalton: Touring the precincts today we have a group of grades 10, 11 and 12 students from Collingwood School in West Vancouver, accompanied by their teachers, Wendy Hilditch and Robert Sword. Amongst that fine group of students is my younger daughter, Karman. Would you please welcome them all to the House.
Hon. T. Stevenson: I have a number of guests in the gallery today. The first is a constituent, Ellen Scully, who's travelled from Vancouver to see the Legislature for the first time. Ellen has brought some friends with her. Maureen Sweeney, Elvira Bryant and Alice Quinn are also in the Legislature for the first time. I'd ask the House to please make them welcome.
Also, hon. Speaker, I have a very close friend to introduce: Reid Glover. Reid has been working for a number of years in Saudi Arabia and is back for a short period of time. Reid and I travelled together extensively about 20 years ago to Egypt and Kenya and a number of other places, and I'm pleased to have him come and see the Legislature, also for the first time. Would the House make Reid welcome.
FAST FERRIES REFUELLING FACILITY
D. Symons: I think we're seeing the last hurrah.
Anyway, I have in my hand a copy of a damning internal report of the B.C. Ferries Nanaimo refuelling facility for the fast ferries. It shows that the NDP mismanaged this project just as they did every other part of the fast ferry project. The audit states that the final construction cost is 100 percent over budget. The audit also says that proper approval for the fast ferry refuelling facility was never given for the project. Can the minister responsible tell us how British Columbians are supposed to have faith in their government when they turn $1.3 million projects into $3 million projects?
Hon. J. MacPhail: There is certainly evidence that the project was over budget, and that's unacceptable. In retrospect, it's unacceptable.
D. Symons: I think their internal audit certainly agrees with the minister there. But one of the amazing items in that audit for the construction and operation of the facility was when that contract was signed. The contract to build the fast ferry refuelling facility was signed in January 2000 -- two months after the construction was complete and the facility was ready to operate. Again, can the minister responsible tell us how the NDP can mismanage a project so badly that they are not signing contracts until after the projects are already complete?
Hon. J. MacPhail: Yes, Ferries had renegotiated a long-term contract
with Vancouver Island Terminals specifically to deal with the issue of fuel to
the Pacificats. Under that term of contract, Vancouver Island Terminals is
responsible for the fuelling facility. The term of the contract did begin in
July of 1999. When the new management team for Ferries came in, in December of
1999, it was disclosed that this project was underway without a signed contract.
That has since been rectified. And the management
Hon. J. MacPhail: Yes.
Hon. J. MacPhail: Hon. Speaker, I guess actually, when the opposition finds that the government agrees with them, they object to that as well. All of the changes have been put in place to make sure that nothing like this happens again.
C. Clark: If we had a dollar for every time the government said, "Oh, all the changes are in place, nothing like this will ever happen again," it would make up for all the new taxes the NDP have brought in over the last ten years.
But the minister should look on the bright side. According to my colleague, this project is only 100 percent over budget. The fast ferries were 120 percent over budget. Well done, hon. minister. The government is getting better. Maybe there's an election issue that the Premier will want to run on.
But the fact is that B.C. Ferries is out there renegotiating this great deal they got for us on this fuelling facility that we don't need anymore in British Columbia. And we all thought that when the government said they were going to sell the fast ferries, we were finally off the hook for all the costs that would be associated with this big old white elephant. Can the minister tell us exactly how much we are going to have to pay under a renegotiated contract for a fast fuelling facility for fast ferries that the government claims it is desperate to sell?
Hon. J. MacPhail: The contractor is responsible for the facility.
The Speaker: The member for Port Moody-Burnaby Mountain has a supplemental question.
C. Clark: The people responsible for the fast ferry fuelling depot, the people responsible for the fast ferries, are the
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NDP. We will not let British Columbians forget about that. Remember, the joke of it is that this fuelling facility isn't even going to be used for conventional ferries. It will just be used for the fast ferries -- fast ferries that nobody wanted, fast ferries that don't work and fast ferries that the minister assures us are going to be sold on the chopping block any day now. How much longer are we going to be paying for these fast ferries? How much longer in the future are we going to be paying for this white elephant that the government said was over and done with?
Hon. J. MacPhail: The contract costs are based on a monthly charge, and they're adjusted according to the actual number of litres delivered to the fuelling facility. The contractor is responsible for the facility. Part of the issue for B.C. Ferries in the sale of the Pacificats is reviewing the use of this facility.
M. de Jong: In 1997 B.C. Ferries developed capital and major operating project guidelines for construction projects. The guidelines apparently apply to capital projects in excess of $1 million. Yet the audit document that we are referring to today finds that within two short years of making those guidelines, they were broken time and time again with respect to this refuelling facility. Can the minister tell the House why B.C. Ferries and her NDP government bother making these guidelines, which are supposed to safeguard the public purse, when time and time again they simply ignore them?
Hon. J. MacPhail: This government has said that the building of the fast cats was a mistake. We have submitted ourselves to rigorous audit, we have submitted ourselves to the auditor general's report, and we have corrected everything in that.
What I would like to make clear to this opposition is that B.C. Ferries is now on very sound financial footing -- much to the objection of the members opposite. We are running a service that's on budget, that's well within the price range of affordability and that is delivering a good service to the coastal communities that rely on it. And that will continue, because we have dedicated a source of revenue to B.C. Ferries for the very first time.
The Speaker: The member for Matsqui has a supplemental question.
SALE OF FAST FERRIES
M. de Jong: Well, there's lots of interesting information in the audit document. But let's talk about the big bust for a moment -- the ferries themselves. A year ago we were told that this NDP-inflicted nightmare was going to be over -- that the fast ferries would be sold and that the waste of taxpayers' dollars would finally end at $463 million. Pricewaterhouse was hired, and we're told that by October of last year they had been paid $250,000. By January of this year that amount had ballooned to half a million dollars -- additional costs to try and sell these boats. The question today is: how much more money has been spent trying to sell these boats that no one wanted and that ended up costing taxpayers $463 million?
Hon. J. MacPhail: PricewaterhouseCoopers still continues to use its worldwide team of experts in exploring all expressions of interest. What I do know is that there is value to these vessels and that they will be sold.
When the Leader of the Opposition gets up and says, "Well, when I take
over government -- God forbid
Whether this opposition likes it or not, in February 2000 there was a change in the leadership of our government. The Premier admitted to the mistakes of the fast cats. He has ordered that we sell them, and we are doing that. We are doing it in the context of maintaining an excellent ferry service. But when the Leader of the Opposition, in continuing his irresponsible doom and gloom around the economy, says that he would sell them for scrap, that does no taxpayer any good.
AUTHORITY CONSTRUCTION PROJECT
J. Dalton: In 1997 the Francophone Education Authority was formed. It currently has 2,777 students. Its '99-2000 budget is $31.5 million, with a ministry-approved deficit of $3.7 million. In '99 the deficit was $1.3 million. The grant for the FEA is $11,469 per student. Compare that with the North Van grant at $5,984 or the West Van grant at $5,941. So the FEA grant is 91.6 percent higher than North Van and 93 percent higher than West Vancouver. Can the Minister of Education explain this very significant difference in funding?
Hon. J. MacPhail: The Conseil Scolaire Francophone is set up because it's a requirement, and one that our government supports, under the constitution of this country. As a result of that, we have a provincewide authority for francophone students, and it's one that our government has put in place. Because it's a provincewide authority that, yes, has many fewer students on a provincewide basis than lots of individual districts, there are different costs associated with that, as there are from school board to school board, district to district. I'm sure the hon. member would be well aware that the per-pupil fund, when it's addressed on a district basis, actually varies from $5,688 to $15,577 per pupil. In our government's commitment to the Conseil Scolaire Francophone, we are ensuring that the costs for transportation, for dispersion over a large geographical area and funding for smaller schools are taken into account. None of those factors exists in either North Vancouver or West Vancouver.
J. Dalton: Well, let's move a little closer to home. There's a day care in North Vancouver, Little Rascals, which will be displaced by the FEA's plans to demolish and rebuild the André Piolat school. Putting aside the capital costs, which the minister has approved, of $5.7 million -- that's just for the replacement, not for the demolition of the temporary portables -- and putting aside the fact that improper notice was given to Little Rascals to vacate and the declining school population in North Vancouver and West Vancouver of the FEA, the FEA plans will displace 130 children and their families.
May has been declared Child Care Month by the Minister of Social Development. Just yesterday I received brochures from the government -- Child Care B.C. "Help families where it matters most" is on the front cover. My question is to the
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Minister of Social Development: will he help Little Rascals, or will he go along with the Ministers of Finance and of Education's plan to displace 130 children and their families in North Vancouver?
Hon. J. MacPhail: We are aware of the situation that the Little Rascals day care centre faces. The school board, the CSF, has been dealing with Little Rascals day care centre since 1999 and, I think, in fact has extended their lease for two years. But the hon. member does raise a good point: there is an integration between our child care and our schools. That's why our government has invested and guaranteed in legislation before- and after-school care that's unprecedented outside of Quebec. And that's wonderful news.
But there's another point, hon. Speaker, and that is: what is the approach of integration between good, solid child care and our kindergarten? What I would say is: not acceptable. It's simply not acceptable. It is a solution where school boards decide to charge for private kindergarten. It is simply unacceptable that those kinds of solutions are put in place when there's good child care available.
The Speaker: The bell ends question period.
J. Dalton: I rise to table a petition with 1,166 signatures from North and West Vancouver residents asking for both the Minister of Social Development and the Minister of Education to assist the families of the Little Rascals children and save their day care.
Hon. P. Ramsey: For the benefit of the member for Vancouver-Little Mountain, I'd like to table a weather forecast for Prince George which shows that as late as Thursday and Friday of this week, we're anticipating snow -- and how we intend to deal with it.
Orders of the Day
Hon. G. Janssen: I call second reading of Bill 10.
PROTECTION OF PUBLIC
Hon. G. Bowbrick: I move that this bill be read a second time.
The purposes of this bill are to encourage public participation and to dissuade people from bringing or maintaining SLAPP suits. SLAPP is the acronym for strategic lawsuits against public participation. These are lawsuits that are launched against people for openly participating in public debate. The bill will provide an opportunity at or before trial for a defendant to allege that a lawsuit is being brought for an improper purpose and is therefore a strategic lawsuit against public participation.
I think it's worth offering at the outset some definition of what a SLAPP suit is. I'm reading from a ministry document that we put out last year when we introduced an exposure bill on this issue. It was Bill 29 last year.
"Generally speaking, a strategic lawsuit against public participation is a civil action without substantial merit brought against individuals, community groups, public interest groups and sometimes local government officials for their activities in communicating with government or others on issues of public concern. SLAPPs frequently arise from environmental or land use disputes. SLAPP filers frequently base their actions on ordinary civil claims such as defamation, inducement to breach contract, conspiracy and interference with economic relations.
"Ultimately, most SLAPPs are not successful in court, but they do succeed in the public arena. This is because defending a SLAPP, even when the legal defence is strong, requires a substantial investment of money and time. The resulting effect is a chill on public participation and open debate on important public issues. This chilling effect is not limited to the SLAPP targets: fearful of being the target of future litigation, others will also refrain from speaking out on issues of public concern."
There is an academic in British Columbia, Chris Tollefson, who teaches at the University of Victoria law school and who's done a great deal of work on this issue. In a 1994 article, he summarized the effects of SLAPP suits as follows:
"SLAPPs are a highly destructive phenomenon. In economic terms, they are wasteful. SLAPPs squander scarce judicial and other resources in litigation which is almost invariably dismissed or otherwise resolved in favour of the target of the suit. Moreover, they tend to nullify democratic reforms intended to include individuals and interests in decision-making processes from which they have been traditionally excluded. Ultimately, however, what is perhaps most troubling about SLAPPs is their chilling effect on democratic dialogue and debate."
Finally, hon. Speaker, I'd like to read an excerpt from a Supreme Court of British Columbia decision in 1999. It's Fraser v. Saanich. These are the words of Supreme Court Justice T.M. Singh:
"While neighbourhood participation in municipal politics often places an almost adversarial atmosphere into land use questions, this participation is a key element to the democratic involvement of said citizens in community decision-making. Signing petitions, making submissions to municipal councils and even the organization of community action groups are sometimes the only avenues for community residents to express their views on land use issues. The solicitation of public opinion is specifically mandated in the Municipal Act. This type of activity often produces unfavourable results for some parties involved. However, an unfavourable action by local government does not, in the absence of some other wrongdoing, open the doors to seek redress on those who spoke out in favour of that action. To do so would place a chilling effect on the public's participation in local government."
The very real problem that exists not just in this province but across this country is the use of lawsuits which are, at least in part, without merit to intimidate people who speak out against interests that are pursuing the suit. And they're often used as a means, I would suggest, in a battle of attrition. The cost of litigation is enormous. Often the lawsuits are brought against citizens without resources. There are many who feel that this use or abuse of our legal process not only is cynical but amounts to bullying. It takes a tremendous emotional toll on those citizens as well, of course, as a financial toll.
Last summer we introduced Bill 29, which was an earlier version, a substantially different version, of this bill. We intro
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duced it as an exposure bill, and that bill attempted to define a right of public participation. That bill then tried to limit this particular right to apply in only a narrow range of circumstances. The feedback we received -- because it was an exposure bill, we were seeking feedback -- was that there were numerous problems with this approach.
So the approach taken in this bill is a different approach to drafting such a law. This bill shifts from creating a new substantive right to establishing a procedural framework for defending against an improper lawsuit. It sets up a scheme for application for a dismissal of a civil action or those parts of that action which are deemed improper.
It attempts to balance two very important things. First, it has to protect the plaintiff's right to access the justice system. This is critical, and we can't have a bill that goes too far in one direction and removes that right or unfairly curtails that right. On the other hand, that has to be balanced against protecting defendants against SLAPP suits by providing for security for costs and ultimately damages, if necessary.
The basic scheme of this legislation is as follows. If a suit is brought against a defendant who feels that he or she is the subject of a SLAPP suit -- that is, a lawsuit with an improper purpose -- that defendant can bring an early application to dismiss either the entire proceeding, if the entire proceeding has an improper purpose, or a specific claim within that proceeding.
This is part of trying to protect the right of plaintiffs to have legitimate actions not to dismiss entire suits because perhaps a part or one of the claims within that suit is improper and is in effect a SLAPP suit, but to remove that part of the suit which crosses that boundary. This is very important. This legislation recognizes that there can be legitimate and illegitimate claims within the same cause of action, and it provides the opportunity effectively to sever those.
If a defendant at an early stage is able to, they can bring that application. At the same time, they can seek reasonable costs and expenses as well as apply for punitive or exemplary damages, as well as ultimately, if they wish, seek publication of an apology offered by the plaintiff who brought the suit.
It's important to note that early on, the onus has to be on the defendant. The defendant can only obtain such an order if the defendant satisfies the court that on a balance of probabilities when viewed on an objective basis, this is a claim that is brought for an improper purpose, and that the communication or conduct which is the subject of the claim amounts to public participation.
If the defendant cannot meet this standard, then there is another option if the defendant can only meet a lower standard. The defendant can get an order that the plaintiff provide security for reasonable costs and expenses, as well as punitive or exemplary damages that the defendant will get if the defendant ultimately succeeds in defending against the claim. There is a lower standard applied for this remedy, and that is the standard of the realistic possibility that this is a public participation and that the claim is brought for an improper purpose. This is as opposed to outright dismissal, which would be obtained early on if the balance-of-probabilities test is met.
If the defendant satisfies the realistic-possibility test, then at trial the onus shifts to the plaintiff to satisfy the court that the conduct or communication engaged in by the defendant is not public participation and that none of the principal purposes of the proceeding is improper. If the defendant does not at least meet this realistic-possibility test, then the onus remains on the defendant at trial to meet the realistic-possibility test so that the onus can shift to the plaintiff.
To recap, a court may dismiss the lawsuit and reimburse the defendant for all reasonable costs and expenses that the defendant has incurred, or it may require the plaintiff to post security for all the costs and damages that may be awarded to the defendant, should the plaintiff lose at trial.
This bill is unique in Canada. It's not uncommon in the United States to have this form of legislation, but it is a different legal system. We may get into that in committee stage. But this is a unique bill in Canada. It's the first time such a bill has been introduced into a legislature in Canada. With this bill the government of British Columbia is recognizing the existence of SLAPP suits. I think it's important to recognize that this is something that does exist, which is now being employed as a tactic and a strategy against citizens in this province. This bill indicates that government is taking steps to protect these people from the burden of a lawsuit which is launched against them simply as a result of exercising their right to participate in public issues or issues of public interest.
This bill sends a clear message that people who start lawsuits for the purpose of stifling public participation may have to pay a price for that. They may have to pay the costs of both parties to the lawsuit as well as punitive damages.
I think this bill carefully balances the right of plaintiffs to bring legitimate lawsuits with the right of citizens to be free of lawsuits that don't have merit. It establishes various thresholds for the plaintiff and defendant to meet, and it requires at different times during the course of a lawsuit that the plaintiff and defendant each have the onus of proof of the matters that are within the scope of their respective knowledge.
This is important legislation. This deals with a real issue in British Columbia. The vast majority of citizens may not have heard of this problem. But I would submit that when citizens who simply try to exercise their democratic rights become the subject of a suit brought against them for no other purpose than to try and stifle their democratic right to express themselves, the government must act. Their democratic rights are being violated. It takes a horrendous emotional and financial toll on them, and it's wrong. This is legislation which is designed to ensure that powerful interests in this province don't have the opportunity to simply bring lawsuits or claims without merit as a form of intimidation.
That's all I have to say on the bill at this point. I'll await the comments of others in this chamber, and then I may have more to say when I close second reading.
G. Plant: Our rights and freedoms are of no value if a person is denied or delayed access to a court of competent jurisdiction to vindicate them. Yet that's what this bill does. It does it deliberately. It deliberately seeks out to deny and delay access to the courts. It sends a message to those whose rights are infringed: "Don't bother with a lawsuit; the courts are not there to help you."
Far from encouraging the free and democratic exchange of ideas and opinions in our society, this bill would place a huge club in the hands of those whose speech and conduct
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causes harm: "No, no, dear citizen, do not dare to sue anyone who is harming you in the name of their higher cause of influencing public opinion." I think this bill, if enacted, would wrap a chilling blanket around the community of ideas.
Any bill presented to any legislature should satisfy a series of tests. The first is this: is there some pressing and urgent problem that needs to be addressed?
Really, there are two parts to that question in this case. The second part of that question is: if there is a phenomenon out there against which this legislation is addressed, is there no other tool in the law already present, available as a response to that phenomenon?
Let me deal with the first question. The first question is whether there is some pressing and urgent problem with the abuse of the court system in British Columbia that needs addressing. I'm going to pause and suggest to you with respect, Mr. Speaker, that the question is not whether there is an urgent and pressing problem in the courts of Saskatchewan or Idaho or California. The question is whether there is an urgent and pressing problem in the courts of British Columbia. With great respect, I haven't seen the evidence.
The minister refers, as do others who support this initiative, to the one lawsuit in the history of the courts of British Columbia that has ever been identified as a SLAPP suit. It is a lawsuit in which the judge who decided to characterize the case as a SLAPP suit expressly found in the existing rules of court adequate and ample remedy for the problem presented to him. It is, I venture to suggest, a remedy at least as good as any remedy that could be found in the bill before us.
There is one SLAPP lawsuit in the history of British Columbia. There are people who, from time to time, have felt themselves to be unfairly or wrongly sued. There are, no doubt, every day in the courts of British Columbia lawsuits and applications heard by judges in the course of lawsuits that ought not to have been brought because there is no real or substantial merit to the claim. That has probably been a feature of civil litigation for as long as we have had civil litigation. I have had, goodness knows, all kinds of clients in my office express the vexation and the frustration that I know they have felt because they have been sued, they believe, wrongly. It's a tough job for lawyers sometimes to defend the integrity of the judicial process in a room where someone is feeling the brunt, the expense, the emotional distress, the delay and the vexation of litigation against them that appears to be entirely without merit. But it may just be, in part, the price we pay for living in a democratic society in which we err on the side of giving people the right of access to the courts rather than slamming the door in their faces.
I don't doubt that there are people who have sat on municipal councils who have felt, in the context of a particular debate about a particular issue, that a developer is using economic power to intimidate and influence the debate on a particular issue. I don't doubt that there are people out there who feel as though they have been wrongly sued by someone who has an objective that is beyond simply the objective stated in the prayer for relief in the lawsuit. The question is, though, whether there is an urgent and pressing problem with respect to the abuse of the court system for the purpose stated by the government.
I want to say again: I've looked for it. I've read the law review articles and the magazine articles, and I haven't seen it. I haven't seen the study. I haven't seen the analysis of the caseload in the B.C. Supreme Court or elsewhere; it hasn't been done. It hasn't been done because we know the answer to the question on any statistically objective measure: there is no problem.
There is, of course, the powerful testimony, in anecdotal cases, of the people who feel they've been wrongly sued, and I don't doubt that there are cases where that has occurred. But I suggest with respect that one or two lawsuits commenced for questionable motives do not constitute evidence of a general trend to use litigation as a tool to paralyze public debate.
Let me move to the second question. The second question I asked earlier is whether, if the phenomenon exists, there is an absence of adequate response mechanisms in the law as it presently exists. That question, of course, only becomes relevant if you assume or find that there is some problem out there. I've already shared my views on that.
In the interests of pursuing the issue further, in order to give the legislation its due, let me consider that second question for a moment. The question, then, is whether the law as it now stands is in some deep and fundamental way unable to respond to the use of litigation for "improper purposes."
Here again I say with respect that the evidence is completely lacking. In fact, Mr. Speaker, I think I need to take you for a minute or two through the rules of court. The rules of court are the rules that govern the conduct of civil litigation in British Columbia. They're made pursuant to law that we make here in this chamber. They have been developed over decades and decades and decades. They are in some respects centuries old. They are constantly being refined and updated. They are constantly being changed as the legal profession, the judiciary and the people who are affected by civil litigation get together and work amongst themselves for the public good to try to make sure that the rules of court give the judges the tools they need to control, to expedite, to monitor, to facilitate, to encourage and to discipline the litigation that comes before it.
One of those rules of court is expressly intended to deal with the very phenomenon that the Attorney General says gives rise to the need for this legislation. It is subrule 24 of rule 19, and it reads as follows:
"At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground thatSome of the words at the end of that subsection may be familiar to you, because of course you've just heard the Attorney General read the analogous words from the bill he's introduced.
"(a) it discloses no reasonable claim or defence, as the case may be,
"(b) it is unnecessary, scandalous, frivolous or vexatious,
"(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or
"(d) it is otherwise an abuse of the process of the court,
"and the court may grant judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs."
The power to stay or dismiss a lawsuit exists in the rules of court of British Columbia. This power may be exercised at any stage of a proceeding. It could be an application brought
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the day after the writ of summons is filed. It could be brought weeks thereafter or months thereafter. It is an application which could be brought at any stage of the proceeding. And what is the basis upon which the law of British Columbia, through these rules of court, already allows any party to civil litigation to strike out the whole or part of a claim? Well, let me go through those issues again.
The application can be made on the basis that the lawsuit is unreasonable, that there is no reasonable claim or defence -- in other words, that the lawsuit is, to quote the language that the Attorney General used in his second reading speech a few minutes ago, without merit.
There it is; there is that power. But there's more than just that power. The
application can be made to dismiss the litigation if the claim or the defence is
unnecessary, if it doesn't advance the cause, if it's not, in any strict or even
generous meaning of the term, going to resolve anything. If it's scandalous, if
it's frivolous, if it's vexatious
And in fact, the rule goes further. Even if the proceeding or the claim is not any of those things, the plaintiff or the defendant may make the application to have the claim dismissed on the basis that it is otherwise an abuse of the process of the court. Surely that is the question that lies at the heart of all those who argue -- well-intentionally, I might say -- that the court has a role to play in controlling the process before it in circumstances where litigants are abusing that process. That power already exists in the rules of court. And the application, once made, can be dealt with promptly; it can be dealt with summarily.
I want to point out that the power to award special costs, which the rules of court already grant, means that the court can force the plaintiff, if it's a plaintiff who's the subject of the application, to pay all of the actual costs incurred by the defendant in defending the action, so that at the end of the day a defendant who is wrongly sued -- forced to hire a lawyer, forced to pay the costs of defence -- can recover all of those costs if the proceeding falls within the scope of rule 19(24) and an application is made.
There is nothing in this legislation which will improve upon the rights of plaintiffs or defendants beyond the rules, the remedies, available to them already under the existing rules of court.
But you know, while this in itself is a powerful tool for dealing with unmeritorious litigation, that's not all that the rules of court already have available to litigants who believe themselves to be subject to litigation that is without substantial merit. Rules 18 and 18(A) also provide the court with the summary power to dismiss unmeritorious cases after hearing some evidence -- in an application, on an affidavit -- in an application that can be made summarily and can be dealt with expeditiously. These rules -- 18 and 18(A) -- can be, have always been and were drafted to be used to help defendants and plaintiffs deal expeditiously, summarily and as inexpensively as possible with the prospect of litigation that appears to them to be without merit.
There is nothing in Bill 10 which improves upon the circumstances, the rights, the remedies available to civil litigants under the existing rules of court. So I think, with respect, Bill 10 fails the first two tests. It's hard to see evidence of the problem, and secondly, in any event, even if there's a problem, the law already contains the tools for responding to the problem.
Having dealt with those two questions, I want to look for a minute or two at Bill 10. Let's be clear what Bill 10 would do. Bill 10 would give the member for Vancouver-Kingsway a powerful new tool to resist the lawsuit commenced against him by Bob Ward, a tool that the law does not already give him. And I wonder about that. I wonder about whether the member for Vancouver-Kingsway, who has available to him all of the resources of the taxpayers to defend a libel lawsuit, needs any more help from the law in doing that.
But Bill 10 would do that. Bill 10 would give him even more help. This bill, if enacted, would permit a government sued by an ordinary plaintiff for a civil wrong to intimidate that plaintiff by launching repeated applications -- application after application -- which would force that plaintiff to defend himself or herself against an inquisition into the purity of his or her motives in daring to sue the government.
What action, what lawsuit, ever commenced against a government or government official would not by definition constitute a matter of public interest so as to engage the operation of this bill? If the government were to lose the first such application, this bill encourages the government to apply again and ensures that on the second application, the standard of proof is even lower than it was on the first. If by some miracle the second such application fails, the bill goes out of its way to encourage the government, as defendant, to apply once again when and if the case finally reaches trial.
There is no limit or restriction in this bill on the number of applications that can be made. Indeed, the bill expressly provides that its remedies and recourses are in addition to, and not in substitution for, any other right or proceeding or recourse that any litigant may have under any other rule of court or any other law. All this bill does is add to the tools available to defendants who wish to throw roadblocks in the way of a plaintiff seeking to vindicate a cause of action in the courts of British Columbia.
While this bill ensures that the courts will be given three or four opportunities to consider forcing the plaintiff that dares to sue the government to post security for costs or pay costs, there is nothing in this bill that will ever require the applicant to pay the costs for any of these applications. Maybe I've missed it. Clearly we haven't had a whole lot of time to look at this, but I haven't seen that provision so far.
Let me move to a different example. That example was all about noticing that a bill is drafted because the government thinks a certain category of people who participate in the economy of British Columbia are bad people, but it's drafted in a way to ensure that everybody who participates in civil litigation gets to share the remedies available. So even if you were to dare to sue the government, the government gets all of the processes available under this bill.
Let me take another couple of examples of situations that, it seems to me, this bill permits. This bill encourages individuals who have been sued in civil court for activity amounting to a criminal offence to apply to court to have the action against them set aside. Commit a crime, and you get civil immunity under this bill -- at least until such time as an information or indictment is laid, if ever. No information, no indictment -- then there's no bar to the application.
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In fact, the way the act works, it tends to encourage people who have committed criminal activity and then get sued for it to bring applications to stop the lawsuit against them. When the plaintiff who thinks that he or she may have a remedy for the harm done to them opens the statute books to look at this act, he or she will see this: if his purpose in launching the lawsuit is to get the defendant to stop the very activity which is causing him harm, his purpose will be improper and his claim will fail. It is wrong, under this legislation, for someone to commence a lawsuit with the intention in mind of stopping the activity which is intended, which is causing him harm.
I want to examine another way in which this bill will work. This bill sets out deliberately to encourage a protest culture in which tortious harm to economic interests will be sanctioned by judicial order, so long as the wrongdoer can claim to have been acting in relation to a matter of public interest. Well, what constitutes the public interest?
It won't surprise you -- because this is a bill, after all, from the NDP -- that there's very little help or certainty or precision or guidance in this bill on what constitutes public interest. When two people agree that something is important and stand up in a park and talk about it, does that make it a matter of public interest? Hard to say. Nothing in this act helps you answer that question. Two people get together and decide to commit the conspiracy of causing economic harm -- the tort of injuring people by interfering with their economic relations. And if those two people decide to do it in public and can engage an inch or two in the columns of the letters to the editor of a newspaper, will that not make their issue automatically a matter of public interest? Pretty good argument, it seems to me.
This bill, this piece of legislation, will stop the expansion of the common law through what are sometimes called test cases. A test case -- that's the term we use to describe the situation where we aren't sure if the law provides a remedy for a particular type of harm. We're not sure if there's a cause of action for that particular type of damage. We don't know if, for example, we could launch a mass tort claim against a collection of enterprises like asbestos companies for a particular species of harm caused to people injured by the lingering effects of asbestos in circumstances where the application of the Limitation Act is completely uncertain. We don't know the answer to that.
But somewhere there's a lawyer out there who is willing to take that cause on. The client goes to the lawyer and says: "I want you to take this case on. Do you think there's much chance that it will succeed?" The lawyer says: "I don't know; it's a test case." The client says: "What you're telling me, counsel, is that you have no reasonable expectation that this proceeding or claim will succeed at trial."
And the lawyer says: "Well, that's true. That's the definition of a test case. I just don't know. The court may be responsive; it may not. We'll have to try it out. We may have to go all the way to the Supreme Court of Canada to persuade that court to change an existing rule of the common law that is against you, to interpret a statute in a way that has never been done before, in circumstances where I have to tell you that all the previous interpretations are against you. In fact, the law, as it's established by a lower court, is against you. But I believe there is some chance that if we work together, we can establish the justice of your cause and that I can persuade a court somewhere along the line to change the common law in your favour. But no, I do not have a reasonable expectation that your claim or proceeding will succeed at trial."
But you know what this bill says? This bill says that if the plaintiff has no reasonable expectation that the proceeding or claim will succeed at trial, then the plaintiff is proceeding with an improper purpose. That is what subsection (2) of section 1 says, in subparagraph (a). Unless you can meet the test of reasonable expectation that the proceeding or claim will succeed at trial, then a proceeding or claim is by definition brought or maintained for an improper purpose. And remember -- I want to make this clear -- all this, of course, is in the context of the additional element, which is to say that the other question will be whether a principal purpose for bringing the proceeding or claim is "to dissuade the defendant from engaging in public participation" or "to dissuade other persons from engaging in public participation."
It doesn't take much imagination before you realize that the test case scenario I'm talking about can be made as real as you want in the context of issues of law and policy that are in fact matters of public interest and that test cases that raise issues that are in the public arena as matters of public interest may actually be chilled into extinction by this bill.
This bill eviscerates the tort of intentional interference with economic interests in any case involving the economic activity of any level of government or in any case where the defendant can argue that he acted in response to a matter of public interest. I'm thinking, for example, of Napster. It's interesting to think about how the Napster litigation would be dealt with in the context of a jurisdiction administered by Bill 10. I'm thinking about the common law rules against picketing. How would those rules be affected? How would the transit strike right now be affected by this bill? There is no Labour Code about picketing. All we have right now in the province of British Columbia is common law rules about picketing. It may not be affected at all, but it's important to explore the range of possibilities of this bill.
It seems to me that this bill may accomplish something that people have been arguing about in Canada for 30 years. It may actually, by statute, implement the principles of the famous American case of New York Times and Sullivan, so that it will, as a result of this bill, become -- at long last, say its proponents -- open season to tell lies about public figures in British Columbia. Such lies, whenever they are even remotely related to an issue of public interest, will now be protected by qualified privilege. So I think there are some problems with this legislation.
The bill has been substantially rewritten since the Attorney General's draft from last summer, but I don't think it has been much improved. It has become more complicated -- burdensomely so, I suggest. And some of its original flaws remain.
I want to digress for a moment to talk about the tort of defamation, something that's easy to explain to a non-lawyer. The tort of defamation goes like this: if you tell a lie about someone that harms their reputation, you've committed the tort -- easy to understand. In fact, very few subjects of the law are more complex than the law of defamation. In fact, if you examine the law books on the shelves in law libraries, some of
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the thickest books are devoted to an attempt to explain over the course of hundreds and hundreds of pages the details of the law of defamation, details that become necessary when courts are faced with the contest that exists between the right to speak freely and the right to protect one's reputation.
This bill engages all of those concerns. So every time you see an undefined term in this bill, you see a lawsuit about the meaning of that term. You see not just a lawsuit but perhaps a Court of Appeal or a Supreme Court of Canada decision. What is the meaning of public interest? What is the meaning, for example, of the phrase "unwarranted interference," which appears in the definition of public participation and which seems to me to completely remove any sense of certainty that might have been created by parts of the definition clause that precedes it and hands this open vessel to the court and says: "You decide whether the interference is warranted or not"? But when you're thinking about whether the interference is warranted or not, you have to have that thought in the context of a purposes section of the act that says that there's all kinds of interference which this statute is intended to permit.
Section 5(3). This is the second set of applications that people can bring
after their first attempt to stop the lawsuit in its tracks fails. On this set
of applications which I believe is, as the Attorney General said earlier,
concerned primarily with getting the plaintiff to provide or post security for
costs and ensuring that the parties are not able to settle the lawsuit on their
Let's be clear. The defendant may have lost the application to satisfy the court on a balance of probabilities that the communication was public participation and that the purpose was improper. So already we know that the defendant cannot meet the 51 percent threshold. So whatever "realistic possibility" is, it's a lot less than 51 percent. It's a possibility -- realistic. Maybe it's a 10 percent chance, maybe it's a 12 percent chance -- 10 percent chance that the lawsuit may have been brought for an improper purpose. And then the defendant gets to say to the court: "You know, I'm going to lose my defence. I may well lose my defence. I have only a 10 percent shot at this as the defendant."
But the plaintiff nonetheless has to post security for the entire cost of the lawsuit. Let's be clear: it's not taxable costs. This bill was not drafted by somebody who knows anything about the rules of court. This bill does not talk about the costs that are processed under taxation orders. This bill says: "No, no, no. You may have to pay your actual bill. You may have to pay all of the reasonable costs and expenses incurred by the defendant." It doesn't matter whether the defendant's gone out and hired the highest-priced lawyer in town -- all the costs. I think that's a pretty onerous restriction on the right of access to the courts that I thought plaintiffs had in British Columbia.
Remember, Mr. Speaker, that the whole point of this exercise is to require the court to prejudge the outcome of civil litigation, and to do so on at least one occasion on an application made, in order to stop the lawsuit in its tracks. It's important to note that the bill is drafted to create an automatic stay. All the defendant has to do is file the application, and the plaintiff's right to move the lawsuit comes to a stop. If the plaintiff wanted to do something like, for example, conduct an examination for discovery to ascertain the evidence, which the rules of court ordinarily would say the plaintiff could do, the plaintiff will have to go to court and get permission to do that. All of this costs money. All of this is a burden and an obstacle on the plaintiff. All of this is in favour of defendants.
The definitions of public participation and improper purpose are filled with marvellously open-ended tests that will require days of evidence and argument to sort out. Public participation is defined to include things, which means of course it may be more than that. Any time you see the word "includes," you know that the statute writer is defining a category of situations that will be brought within but leaving open a whole range of other situations. And lawyers who will be asked to advise their clients on the application of these tests will have to say: "I just don't know. We'll have to litigate this one for a while, because there's no certainty in this statute." Will the test be objective or subjective? What if the communication was only partly intended to influence public opinion? What if the communication was not intended to influence public opinion but did so nonetheless?
The act, as I've said, expressly preserves all other available relief and does not limit the number of section 4 applications that can be brought. And of course the procedures and substantive rights created by this bill will be as available to the Premier of British Columbia, if he should be sued for libel by a Bob Ward, as they are to the loneliest protestor.
What Bill 10 would add to the existing law of British Columbia is a powerful tool for defendants to suppress litigation by reference to subjective, uncertain standards applied on a vastly uneven playing field, by forcing plaintiffs not just to prove a cause of action but also, in effect, to defend their motives and to do so in the context of an application which can be made as late as four months before trial and which, once made, will automatically stop the lawsuit in its tracks for as long as it takes to decide the issue.
I have not seen a problem that needs fixing. I have not seen a gap or a deficiency in the rules of court or the law of British Columbia which does not give the defendants who are on the receiving end of illegitimate litigation all the tools they need in a democratic society to respond to that litigation. I see in Bill 10 recipes for harm, for delay, for expense. I see in Bill 10 a huge tool for reinventing public discourse which will give way too much power to defendants and in the long run, I think, will frustrate access to the courts of British Columbia. So I oppose Bill 10.
A. Petter: I take great pleasure in rising to speak in support of Bill 10, the Protection of Public Participation Act. I think the last speaker's contribution has demonstrated to anyone who cared to listen that this is clearly not a piece of legislation that is going to appeal to litigation lawyers, and certainly not to those who represent plaintiffs more than defendants.
But of course this piece of legislation is not designed to please litigation lawyers. The difficulty may be, thus far in the debate -- and I'll implicate myself in this -- that it's lawyers who are talking about a problem that affects people in society who are not lawyers, who are not familiar with the court process, who do not have access to the courts, who don't understand how court proceedings can be used and who certainly don't have the resources to make good use of those proceedings.
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This bill isn't designed to make life easier for litigation lawyers. This bill isn't designed to facilitate those who make their living working for plaintiffs or defendants in the courts. This bill is there to respond to a very public need that exists well beyond the community of lawyers and well beyond the community of those who are practitioners of the law within the courts.
The previous speaker said that he sees no evidence of a problem. I don't know where he has been or who he talks to, but one would be hard-pressed to have lived in this province and certainly to have been a member of the Legislature in the last number of years and to not have encountered constituents or citizens on a fairly regular basis who have serious concerns about this very issue: the use of SLAPP suits to stifle public participation and debate.
The Union of B.C. Municipalities, an organization that represents people from all different walks of life and all different political persuasions, has felt so strongly about this issue that on a number of occasions it has pressed governments to bring forward action to deal with the misuse of the courts in order to try to stifle public participation in debates. If the member hasn't had time to consult the proceedings of the Union of B.C. Municipalities or to talk to their representatives about this issue, perhaps he should spend less time talking to litigation lawyers and more time talking to those on the ground, in communities. They in fact have very real concerns about their ability to participate in the democratic process that is the lifeblood of our communities, for fear that by doing so they may run afoul of someone who has a suit and the resources to bring it, even though that suit lacks any merit whatsoever. There is plenty of evidence of the difficulties to anyone who would care to listen.
I do want to encourage members and indeed the previous speaker to be mindful that the evil of SLAPP suits, the problem with SLAPP suits, doesn't lie in the number of cases that are brought. Indeed, it probably lies in the number of cases that aren't brought, because the phenomenon of the SLAPP suit -- the threat of this kind of action and the filing of actions that never get to court -- is most successful in stifling public debate on the part of those who fear that if they do participate, they will be subject to court proceedings or that if they don't cease participating, the court proceedings that are threatened against them will proceed to trial.
So I take no comfort at all in the fact that there is a lack of proliferation of cases that the member can point to. Certainly there are cases that can be pointed to. I think that if the member would care to talk to those in the Union of B.C. Municipalities, in environmental organizations or indeed to my constituents -- many of whom have come to talk to me about this issue -- he will find plenty of evidence that the use of the courts to stifle public participation is regrettably alive and well in this province. And it's succeeding to the extent that it does not result in court cases, because people who lack resources and fear the prospect of a court proceeding are more likely to back off in order to avoid that court action being brought.
I want to talk a little bit about the human dimensions of this problem. As
someone who is legally trained, it's perhaps hard for me, as it is for other
members who are legally trained, to relate to this. But the sense of
intimidation that is felt by a citizen when that citizen receives a writ of
summons in the mail to appear in a court proceeding -- even as a witness, let
alone as a defendant -- or when that person is asked to appear for some
proceeding that may be outside the court, such as a discovery procedure
I've had occasion to talk to numbers of citizens in my own constituency and in the larger community who have experienced that. They have felt that sense of vulnerability, that they are now going to be prey to some legal action simply because they have chosen to participate and to advocate, on their own part or that of their community, in support of a public issue that they care deeply about. Suddenly they find themselves embroiled, or threatened to be embroiled, in some legal proceeding that they do not understand and which they can ill afford to contest.
This kind of legislation is not new to North America. I appreciate that it's new to Canada, and I think members of this House should be very proud that this legislation is being brought forward. But legislation dealing with SLAPP suits has been brought in the United States. I believe 13 states have such legislation.
In each instance, impassioned appeals were made on behalf of the bar and the litigation lawyers, on the part of the process, of the kind that the previous speaker made. But in each instance that legislation was passed, because at the end of the day the legislators understood that it was not the interests of the bar that this legislation tries to speak to, but the interest of common citizens. They believe -- believe it or not -- that they should be able to stand up and speak on an issue that concerns them, to advocate in favour of a public position on issues, without being the subject of litigation, without having to go and consult lawyers or, if indeed they do have to consult lawyers, without having to incur the full costs that litigation can impose upon them because there is no protection for that participation.
So I think the first point I would make is that we have to evaluate this legislation not by how much it pleases those whose profession it is to litigate in the courts and who have an interest in pursuing such litigation, but quite the opposite. We need to assess this legislation according to the benefit it provides to citizens who do not wish to be subject to litigation in the courts and who certainly ought not to be subject to litigation in the courts simply by virtue of their decision to participate in democratic processes, to stand up and be counted, to participate in controversial matters. They shouldn't be subject to court proceedings for that and that alone, and that's what this legislation really addresses.
Now, the member opposite also gave a very lawyerly account of why there was a solution embedded in the rules of court. I want to say, just parenthetically, that he referred to the fact that only one case in the courts in Canada -- or at least in B.C. -- has referred to the phenomenon of a SLAPP being brought. Well, that's hardly surprising, given that we don't have anti-SLAPP legislation. What's more surprising is that any judge, in any case, would characterize a case as a SLAPP case, because this concept has not been known heretofore in Canadian law because it's not been addressed through legislation of this kind.
It so happened that in one case -- a case that happened to arise in my own community not too recently and a case which I would suggest is not untypical of other circumstances -- a judge was in fact so offended by the kind of action that was
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being brought by a developer who sued both a municipality and eight local residents who opposed the development, he did choose to characterize that case as a SLAPP. But we shouldn't be surprised that that's not a common term or a common characterization in the courts of Canada, because, in fact, we do not have legislation or rules that deal with that specific phenomenon. I suspect that once this legislation is passed, there may be more inclination for the courts to label cases as SLAPPs, because this particular legislation speaks to that particular problem.
So the argument that the courts aren't identifying SLAPP suits left and right as some evidence that this isn't a problem is a bootstraps argument. The courts aren't identifying this because they don't have the tools to deal with it directly, and they will not have until this legislation is passed.
The rules of court do provide some relief in certain circumstances, but they don't deal in the concerted way that this legislation does with the phenomenon that we are talking about here -- the phenomenon that the Union of B.C. Municipalities and the representatives have spoken about, the phenomenon that many in environmental and citizens' groups have asked for relief to guard against. That is the phenomenon of the use of litigation by those who are powerful and have access to legal resources to silence those who are not powerful and don't have access to those resources, simply by taking advantage of the fact that they have an imbalance of power and, through the inappropriate use of litigation, can use that power to intimidate and stifle public participation and public debate. That's a problem that we should not take lightly. That's a problem that we cannot dismiss, and it's a problem that is not directly addressed in the rules of court but is, thankfully, directly addressed in this legislation.
This legislation addresses that problem in a number of ways. In fact, while he did so in a way that I found to be somewhat one-sided, the member opposite referred to some of the ways, and some of the ways clearly go beyond what is provided for in the current rules of court.
I think what we need to do to assess the legislation is not do what the member opposite did, which was engage in a bunch of worst-case scenarios on behalf of plaintiffs, scenarios that I suspect would not go very far in the courts, because the courts ultimately have charge of the interpretation and use of this legislation and how it is interpreted. But we should attend to actual case scenarios and the kinds of benefits that this legislation can provide.
First of all, unlike the member opposite, I applaud the fact that this legislation speaks squarely to the law of defamation. What it says is that where someone engages in public participation -- and it defines public participation as including communication or conduct aimed at influencing public opinion or promoting or furthering lawful action by the public or any government body in relation to an issue of public interest -- the participation of that member in society is not something that is actionable in defamation. Citizens should be free to be able to criticize and engage in vigorous debate and urge positions upon other citizens and upon government and criticize those who are powerful in society without having to incur the fear that by doing so, they are somehow going to be subject to an act in defamation.
Fortunately -- and this is where the member opposite was somewhat selective
-- it then goes on and makes it very clear that this protection is
circumscribed, that it's limited and that the courts will well have the tools to
ensure that this provision is not abused. Let me go on and read what it says. It
says that public participation does not include communication or conduct
It doesn't apply where the communication or conduct constitutes a breach of the Human Rights Code or equivalent enactment of any other level of government, where it contravenes any order of any court, where it causes damage or destruction to real property or personal property, where it causes physical injury, where it constitutes a trespass to real or personal property. And it does not apply under circumstances in which the court otherwise considers the conduct or the communication to be an unwarranted interference by the defendant with the rights or property of a person. Now, the member gave a number of examples. I didn't have time to write them all down, but it seems to me that all of the examples that he imagined -- at least all of the ones that I think should cause the public any concern -- are covered off by that list of exceptions.
Clearly, if there is any suggestion that the conduct could be damaging to property or to person or if it's a matter that would contravene any order of a court or if it constituted a trespass to real or personal property, the court would not view that conduct or that communication as public participation. At the end of the day, the court has the discretion to determine that it does not constitute public participation by deeming the conduct or the communication to be unwarranted interference by the defendant with the rights or property of a person. And that's the failure, of course, in the argument put forward by the member opposite.
This legislation is not just about giving defendants additional rights where those defendants are citizens who are participating in public decision-making. It's about giving the courts the additional tools to protect the democratic process. It is the courts that will interpret this legislation, and the member really ought to have more faith in and give more credit to the courts than he appears to do -- that the courts will interpret this legislation in terms of the letter of these exceptions and in terms of the spirit of these exceptions.
I don't want to pretend that it's easy to strike a balance between the need to foster public participation and debate and the need to protect the rights of those who feel aggrieved to bring actions in court. It isn't easy. But I do think that it's important that we not be afraid to find the appropriate balance simply because it's a difficult balance to strike. This legislation, I think, does a remarkable job of striking that balance.
You know, the process through which this legislation came about was, I think, an exemplary process. It started with a discussion paper. It went to a consultation process based on that discussion paper. It resulted in an exposure bill last spring. The exposure bill resulted in more discussion and consultation, and that in turn has resulted in this bill today.
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Certainly this bill won't satisfy every group or every interest -- and
certainly not that of the litigation bar. I appreciate that. But I think it does
an extraordinary job of striking the appropriate balance, of saying that when
you stand up as a citizen
I've already referred to the first part of the bill which speaks to that issue -- this qualified privilege for public participation -- and I think that goes some way. It certainly goes way beyond the rules of court in ensuring that the public can see that their right to participate is a value that this Legislature holds high. It is a value that we're not going to allow to be eroded simply by virtue of those who, because they have money, have access to lawyers and access to the courts. We're going to give the courts the tools to say that public participation can be protected -- tools that go beyond the limited resources and avenues they have now through the rules of court.
Then the legislation sets out other mechanisms. Again, the member opposite disparaged some of those mechanisms. But I think that they are mechanisms that speak to the underlying concern and the attempt to try to strike a balance here, recognizing that we are dealing here with situations in which one party may have substantially more resources than another, in which citizens who have spoken out on an issue need to have the protection of the courts in order to protect their rights to engage in free speech.
One of those is the opportunity to come to court and seek a dismissal of the claim and to seek costs and, ultimately, exemplary damages. That is provided for in this legislation, hon. Speaker. But what a person must do in order to take advantage of that option is prove two things. First of all, "the communication or conduct in respect of which the proceeding or claim was brought constitutes public participation." I've already discussed how that concept is limited in a number of ways that ensures that it will not be abused in the way that the member opposite tries to suggest. Secondly, it says the defendant must be able to show that "a principal purpose for which the proceeding or claim was brought or maintained is an improper purpose." Now, that's a pretty hard thing to prove, that someone else's motivation was improper. If the defendant cannot prove that, they will not succeed in having the case dismissed at first instance.
It is difficult to prove motive. For that reason it provides an additional avenue. That is the avenue, again, the member opposite referred to, but I think he did so in terms that do not reflect what is really being achieved here. That is, it allows the defendant, if the defendant can show that there is a realistic possibility of proving these two averments, these two elements of having the defendant protected in respect of security for costs. It doesn't mean the costs of the defendant, as I understand it, are going to be paid at that point; it simply means there is security. So the defendant knows that at the end of the day, if the defendant succeeds, there will be money there to pay for the costs they're going to have to incur in order to fight the allegations against them, in order to stand up and be counted, if indeed what they did was simply to engage in public participation.
Is that too much to ask? Is it too much to ask plaintiffs who are in court
pursuing expensive litigation to put up and post a security so that a defendant
who is going to have to, in many cases, go to a lawyer for a first time and
incur costs that may be substantially beyond their means
I invite the member opposite to come with me, and I will be happy to take him
around my community and introduce him to people who have been subject to various
forms of legal action or threatened legal action -- who are afraid even to stand
up and go into a lawyer's door, let alone pursue a defence. But if they do go
through that door and they want to pursue that defence, surely, surely they
should know that if they're right in their belief that what they're doing is
simply voicing their democratic rights of public participation
I'm very pleased with this legislation. But I really think members in this House have to look at it not from the point of view of lawyers. Lawyers will have to contend with this in their own way, and lawyers are very good at contending with legislation in its own way, I'm sure. I think what members of this Legislature have to do is deal with it in terms of the very real human aspects that it tries to speak to.
It's about time that people in British Columbia have some legislative assurance and a tool that says to them: "Yes, if you stand up, if you are one of those in our society who's prepared to stand up and say controversial things and take on the issues, the Legislature is going to protect you from others who might want to prevent you from doing that. Particularly, the Legislature is not going to allow people -- corporations, in particular -- who have huge resources, to use that simple imbalance of power to grind you down, to chill your participation, to make your democratic voice subject to litigation that will in fact silence that voice. The Legislature understands that and will provide some protection -- will provide you with the means to protect yourself."
That's what this legislation is about. Don't evaluate this legislation in terms of whether it will convenience or inconvenience the litigation bar. Think about it in terms of the woman I spoke to in my constituency a few months ago, who had written a letter to the editor, critical of a development and, based upon that, had been threatened with a lawsuit. Lawyers in this province, for that matter -- public interest lawyers -- have been threatened with lawsuits when they're acting pro bono on behalf of non-profit organizations that are taking controversial stands.
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Think of it in real terms. One can get caught up in all sorts of lawyer arguments, all sorts of imagined horribles. On those I say to you: this legislation will be interpreted by the courts. It will be the courts, at the end of the day, that determine what is an improper purpose, what is public participation. And I trust the courts to be reasonable. They will be reasonable.
Think of what this legislation can do positively in terms of assuring the person who is thinking about writing that second letter to the editor and wondering whether the government and the Legislature is there to protect her, should she voice her opinion a second time.
Think of it in terms of the rights of those who may wish to stand up and criticize interests in our society that want to do things that they feel are destructive of the environment. How much poorer is our democracy going to be? How much poorer is our society going to be if we allow the abuse of the courts to stifle that kind of criticism and debate?
Does this legislation tilt the balance? Yes, it does. Does it open the door a little bit more to democratic dialogue? Yes, it does. Does it make it a little bit more difficult for powerful interests to use lawsuits to try to seek actions against those who are critical of those interests? Yes, it does. Is that a good thing? The member opposite says no. But I think most British Columbians will say: "Yes, it is a good thing."
Opening the doors to democracy is a good thing. Allowing people to speak their minds is not a bad thing. Let's open the doors a little bit more. Let's not be afraid that litigation lawyers might be offended a little bit more. Let's give people a little bit more scope to speak their mind in society, put aside the legal arguments, trust the courts and do the right thing, as this legislation urges us to do.
J. Sawicki: The member for Saanich South has said that we need to look at this legislation not from the point of view of lawyers. I'm glad he said that, because I certainly come into that category. I am very pleased to be able to follow the member for Saanich South, who has done such tremendous work on this bill, along with the current Attorney General.
While the opposition member who spoke against this bill -- the member for Richmond-Steveston -- has made a great dissertation for a courtroom, I think that that is the key point about this legislation before us.
Society is more than a courtroom. While we have tremendous respect and feel very privileged to live in a country where we have an independent court system and a rule of law, and we are very conscious of the fact that there are many countries in the world that don't have that privilege, we also are very privileged to live in a country that values democracy. And in order for democracy to work, its citizens must not only feel free to participate in the democratic system, but they must be free and be encouraged to promote public participation in the democratic system. Without citizens, democracy does not exist.
I think that anti-SLAPP legislation does cause great fear in those that already have a lot of power and money. It does cause great fear in those who are here to protect the status quo or the trend of the status quo. I'll get into that a little bit later. I also know that we have seen trends in our society that make it essential, in my mind, that we do have this kind of protection for citizens who have a different vision, a different dream, of how they want to build their communities, protect their own health and protect the environment.
I know that in the United States SLAPP suits have been used for several different purposes, but land use and environmental issues are certainly at the top of the list. In terms of my interest in this legislation, that's the perspective that I bring, because I know several activists -- good, solid citizens fighting for their community about issues they care passionately about -- who have lobbied long and hard for this kind of legislation. I also know of several lawyers, especially with West Coast Environmental Law, who have devoted their personal careers to working to protect citizens, to bring up these kinds of issues which may go against the grain -- which may not be something that corporations in particular like to hear -- but which must be debated, and debated openly.
While we are the first in Canada to pass such legislation, to debate this legislation in the House to protect its citizens from SLAPP suits, I understand that 13 states in the United States already have that legislation. As I repeat, I am certainly not a lawyer. On a lot of the background information that I was trying to read this morning to prepare for my comments, my eyes glazed over a little bit. But I do understand -- and I trust and have confidence in my colleagues who are lawyers -- that we have tried to learn from, and have taken the best of, all of the other legislation, and we have modelled for something that will work in British Columbia.
Another point the member for Richmond-Steveston made
To that I would answer: it may be wrong, but surely he is not suggesting in any naivety that it is not done. We just have to look around North America for several cases where it's pretty clear to the ordinary citizen -- again, I'm not suggesting to lawyers and judges -- that that's exactly what the motivation is. While it is wrong to do that, there's a great motivation for corporations who don't like the way public discussion is proceeding to put it before the courts. And that is the high cost of litigation.
Let's face it: it's not a level playing field. The courts may, on the face of it, give access to all citizens. But when you think of the cost of getting that access, and when you think that obviously there are corporations that have bottomless pits of money to shut down public debate -- and dependent, in many cases, are either individuals or non-profit community groups that want desperately and passionately to bring to the fore the debate around health issues, the use of chemicals, environment, land use, because people do care about their communities. . . .
[D. Streifel in the chair.]
We only have to look at some of the other trends against globalization -- the battle in Seattle that was so much a part of our newspapers. We only have to look at the rising public concern about the use of pesticides, chemicals, genetically engineered foods -- all sorts of issues around land use,
[ Page 17645 ]
around clean water, around clean air. We know that the public wants more debate about this, not less. They want more participation, not less.
I am confident that with this piece of legislation we are introducing in British Columbia, we can be proud that we are introducing a piece of legislation that will encourage public participation, that will remove a barrier from citizens who want to express their legitimate views. That's what makes democracy work, and I am very proud to be part of this legislation.
J. Cashore: It's good to get on the record with regard to this issue. My colleagues from Saanich South and Burnaby-Willingdon and also the Attorney General have spoken well on this subject, and my colleagues have responded well to the points that were made by the opposition critic.
First of all, I want to very briefly talk about the process that we have gone through here today. The process has been very thorough and very appropriate. And it's one of the ways that I like to see our House function, in that there was an exposure bill several months ago. This has gone out to very, very extensive public discussion. There has been feedback. And what we see today is Bill 10, which is the result of that process, ensuring that all of the different aspects and concerns are addressed so that it truly does serve the public purpose.
Hon. Speaker, I want to start by making a statement. I think it's a simple statement, and I don't think that anybody could possibly disagree with it. That is, it is wrong to use the court to deny what the court must stand for: fairness and justice.
Now, this is one of the issues that really does show the difference of values between the opposition side of the House and the government side of the House. The opposition critic, in listening to his comments, clearly sees the court as being there to look after the interests of the powerful and the privileged.
This bill addresses the issue of balance to ensure that people without a
voice, people who are learning to have a voice, people who are recognizing their
part in democracy by learning to speak out, as so many of us have done en
route to serving in the way in which we now serve
So this bill is there to work against the intimidation of little people who have that democratic right. What is wrong with a wronged party being reimbursed for costs? What is wrong with that? I have not heard the opposition indicate any concern about that. Is it not right that punitive and exemplary damages should be imposed when there is such an abuse of democracy?
The fact is that lawsuits against public participation are simply wrong. They're misguided, and they are wrong.
We all cherish democracy; we all cherish having a democratic voice. And I think that every one of us who spends time listening to constituents who walk in the door because of a variety of needs cannot come away from that experience without realizing how important it is that we help to enable them to have that voice, to be able to cherish and enjoy and learn that they can accomplish things by exercising that right to speak out.
This bill shows what side the opposition is on, and it shows what side the government is on. Clearly, as we were listening to the comments of the opposition critic, we were hearing words that are spoken as a result of the kinds of corporate donations that are received within that party, which have recently been publicized.
I conclude with what I said at the beginning. It is wrong to use the court to deny what the court must stand for: fairness and justice.
Deputy Speaker: Seeing no further speakers, the minister closes debate.
Hon. G. Bowbrick: I think we've seen a clear difference in this chamber on this bill. Let me just say a very few brief remarks in closing second reading debate, because I know that we'll go into this in a great deal more detail in committee stage.
The remarks of the opposition critic demonstrate very clearly -- and I don't say this in any political or partisan sense -- that lawyers are inherently conservative. And I include myself in that. I say "conservative" not in a political sense but in the sense that lawyers tend to shy away from any significant change. The opposition justice critic provided, I think, a very able exposition of the merits of the status quo. I know he's very sincere in what he says, but we have to consider where he sits. He is experienced counsel. He did work with, and he may still be associated with, a major downtown Vancouver law firm. I would just suggest that his experience with the status quo and many of the clients he would have represented is very, very different from the experience with the status quo that people on this side of the House are talking about. That's the problem. That's what this bill has to rectify.
There are people in this province who feel intimidated, as some of my colleagues have very eloquently outlined. The opposition justice critic says he doesn't see the problem, because there aren't SLAPP suits all over the place. Well, that's precisely the point. The point of a SLAPP suit is to have a chilling effect. It's to keep people quiet. It's to keep them from speaking out against more powerful interests. So of course the logical conclusion of that, if SLAPP suits have their intended purpose -- which is not just on the defendant that the suit is brought against but on the broader public -- is that there won't be as many suits. There won't be the need for those plaintiffs to bring such suits in the first place.
It's true that this legislation is going to be open to interpretation. Any new law will be. I have faith in our courts, when they're interpreting this legislation, to understand the spirit of this legislation, to understand the intention behind it. The spirit of it, to put it in clear terms, is to create a greater balance in this province between those who have access to legal resources, the powerful, and those who don't but who still, we maintain on this side of the House, have a democratic right to participate and have their say.
Hon. Speaker, this is new law. This is a change. It's intended as a change. No, we're not content to leave it to the rules of court, which do provide some remedies already. This is a clear statement from the Legislature. That's what a statute
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is. It carries far more weight than any change that could be made to the rules of court. Legislators still play an important role in our system of government. We do our best to express the will of the people. We are part of a representative system, and we are part of a representative institution. When a legislature speaks on a bill such as this, it matters. We're sending a message that we intend a change in our legal system and we intend a change in the way public debate is carried on or not carried on, as the case may be, in this province.
I'll have more to say in committee stage. There were a number of specific concerns raised by the opposition justice critic. It's probably most appropriate to address those in committee stage in more detail. So those are my remarks on second reading, hon. Speaker, and I move second reading now.
[The Speaker in the chair.]
Second reading of Bill 10 approved on the following division:
|YEAS -- 38|
|NAYS -- 34|
Bill 10, the Protection of Public Participation Act, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.
G. Hogg: I seek leave to make an introduction.
G. Hogg: In the House we have with us today 52 students from Earl Marriott Secondary School in Surrey-White Rock accompanied by a parent, Ms. Rogers, and teachers Marc Figueira and Louise Hutchinson. Would the House please make them most welcome.
Hon. G. Janssen: I call committee on Bill 8.
The House in committee on Bill 8; D. Streifel in the chair.
On section 1.
C. Hansen: I would like to start out by just getting a sense from the minister on the consultation that took place. Specifically, I would like to ask the minister if the College of Pharmacists was given the opportunity to comment on a draft version of this bill before it was introduced for first reading.
Hon. C. Evans: No. This legislation is essentially validating what went on before, so there hasn't been any new round of consultation.
C. Hansen: I think that certainly comes as a surprise to a lot of people who count on our colleges of the various health professions to provide oversight for the operations of the various health professions. It strikes me that it would have been appropriate for the college to have been consulted in this particular change that is being made, especially when there was such a considerable amount of discussion taking place last year as to whether this initiative required legislative change or whether it required simply regulation, which was what initially was brought in.
One of the concerns that was expressed to me regarding the approach that is
taken in this bill
I'm wondering if the minister could give us some clarification as to what the intent was and why it was determined after the fact that legislation was required.
Hon. C. Evans: I'd like to turn the question around a little bit. The hon. member has said: "What gave rise to a desire to have legislation, given that you already had a regulation?" In fact, when the regulation was brought in, it was considered at the time that that was simply an interim activity until we could come here and pass the law.
Section 1 approved.
On section 2.
C. Hansen: This particular section also raises some specific concerns in that there is nowhere else in this legislation that specifies, specifically and explicitly, what a pharmacist may do. The concern that has been expressed is that because we don't explicitly state that a pharmacist is not convening the
[ Page 17647 ]
practice of a pharmacist for everything else that is covered in the act, someone might claim that other acts are not within the purview of a pharmacist defined under the practice of pharmacy, given that this government is now choosing to specifically and explicitly define a function that is authorized to be carried out by a pharmacy. It begs the question for all of the other acts.
I wonder if the minister can give us some comfort that, in fact, we will not be leading to questions being raised about other acts that are carried out by pharmacists, given that we are now giving explicit definition to one of those acts that would have been previously covered.
Hon. C. Evans: I would draw the hon. member's attention to the 1996 Pharmacists Act itself, in which there is (a) through (i) laying out the practice of what a pharmacist does. This is actually simply amending an existing series of definitions.
C. Hansen: As a technical question, could the minister explain why this gets inserted as subsection (g.1), as opposed to being inserted as a new section -- sub-subsection (i)?
Hon. C. Evans: It's based on the conventions of legislative counsel and how they draft legislation.
C. Hansen: My read of that, though, is that you would wind up with this new section that's being inserted -- subsection (g.1) -- being somehow connected, or following sequentially, to what is in here as (g). Could the minister explain what that connection is? It's not apparent.
Hon. C. Evans: We may actually have to consult legislative counsel. If the hon. member wants to go on, I'll bring it back as soon as I get an answer.
The Chair: Minister, for clarification, when may we expect a response? There are two sections to the bill.
Hon. C. Evans: Within half an hour, I assume. My suggestion was that the hon. member proceed. His question is technical. It's essentially asking why something is inserted in the place where it is. It has absolutely no bearing whatsoever on the content of the bill. So I was begging his indulgence to go and find him the answer without slowing down the business of the House.
C. Hansen: I guess my concern is that because it is inserted where it is being proposed to be inserted, as (g.1), it flows from a section that talks about simply the maintenance of proper records. My concern is that if this particular clause is inserted as a section that flows from the maintenance of proper records, then this amendment isn't going to achieve what the government is trying to achieve. It may be advisable for the minister to stand down the legislation, and we can certainly come back to it later in the afternoon.
Hon. C. Evans: I'm advised that it's a numbering convention and that it is unrelated to subsection (g). And it will not, as the hon. member is concerned, be confused with subsection (g) in the definitions.
C. Hansen: I would have a little bit more comfort if the minister were able to convey that with a little more conviction -- definitive in the ruling. But if the minister is satisfied that that is the case, then I won't stand in the way of us proceeding.
Section 2 approved.
Hon. C. Evans: I move that the committee rise and report the bill complete without amendment.
The House resumed; the Speaker in the chair.
Bill 8, Emergency Contraceptive Access Act, reported complete without amendment, read a third time and passed.
Hon. J. MacPhail: I call committee on Bill 21.
ABORTION SERVICES STATUTES
AMENDMENT ACT, 2001
The House in committee on Bill 21; D. Streifel in the chair.
Section 1 approved.
On section 2.
C. Hansen: This section has the effect of amending the definition of
hospital to add part 2.1 to the exception to the definition of hospital, so that
the definition of hospital as amended will read, "
Hon. J. MacPhail: What this bill does is amend the definition of hospital so that this bill is limited to the hospitals listed in the schedule.
C. Hansen: I guess my concern is that what we wind up with is part 2.1, which refers to "hospital" in several places but does not actually define what a hospital is or is not, in that case.
Hon. J. MacPhail: Hon. Chair, for the member, the hospital definition in the Hospital Act is clear on what a hospital is under definition of a hospital. I could read that out for him if he would wish.
What this does is limit the effect of the Freedom of Information and Protection of Privacy Act exclusion to the hospital definition but include part 2.1 of this act.
C. Hansen: Maybe, for the benefit of the minister, I can clarify that we're now on section 2. We're no longer talking about section 1, which is the references.
What section 2 does is explicitly exempt the definition of hospital in the consideration of part 2.1, which is one of the
[ Page 17648 ]
other amendments that we're going to be considering on the next page. So my question to the minister is: in terms of this new part, 2.1, there is reference there to "hospital," yet there is no definition of what a hospital consists of for the purpose of that new part being added.
Hon. J. MacPhail: I am taking the question seriously. That's why I want to make sure, because I assume that this discussion could have further use as well.
The original definition of a hospital is as it is under the Hospital Act, and that's clear. There are two parts to a hospital: a part 1 hospital is a publicly funded hospital, and a part 2 hospital is a privately funded hospital. The intent of this is to ensure that under part 2.1 of this bill, the coverage of part 2.1, "Hospitals Providing Abortion Services," refers to a definition of a hospital that excludes privately funded hospitals and limits the reference to the schedule, which is now included in part 2.1. So it's to have part 2.1 of this bill apply only to the scheduled hospitals -- a definition of hospital as it is now listed under the Hospital Act.
C. Hansen: I think that actually makes the issue less clear, because in this section what we are doing is adding part 2.1, that any reference to the word hospital that appears in part 2.1 is not defined by the definition of hospital that's included in the act. So I just come back to my initial question: what is the definition of hospital as it applies in part 2.1?
Hon. J. MacPhail: The definition of hospital for this section flows as I've described it. Legislative counsel recommends that this needed to be done in order to ensure that it was just the hospitals listed in Schedule A be covered by this bill. If one has to go to use the definition of hospital in some fashion other than what's included in this, the common sense definition of hospital applies. If the member has some sort of issue around where this could be a problem, I'd be happy to discuss that with him now.
C. Hansen: If the minister is satisfied that this has been properly drafted, then I certainly won't stand in the way of proceeding.
D. Lovick: I note in the new 24.1(2) it states very clearly that each hospital listed in the schedule to the act must provide the facilities and services, and so forth.
The Chair: Hon. member, just to bring to your attention that we're on section 2, that's under section 3.
Section 2 approved.
On section 3.
D. Lovick: My question concerns the second paragraph in the new
section 3, "The following Part is added: Part 2.1
Hon. J. MacPhail: Again, this is a sensitive area, and I certainly understand the member's query in this area. This is the kind of information that is perhaps best protected, but suffice it to say there are one or more hospitals that are not currently providing services due to lack of abortion services providers.
Section 3 of Bill 21 approved on the following division:
|YEAS -- 66|
|NAYS -- 5|
Sections 4 and 5 approved.
On section 6.
C. Hansen: Given the discussion we had earlier over the definition of
hospital as it pertains to this particular part, and the minister's response was
The Chair: Hon. member, if you don't mind waiting until the room
clears and people go elsewhere
C. Hansen: Just to repeat my question, now that the staff have joined us, given the discussion that we had earlier about the definition of hospital and the fact that that definition does not apply to part 2 and that there is no explicit definition of hospitals, the minister's explanation was that the definition of hospital is somehow what common sense would dictate. I wonder if the minister can tell us how item No. 5, the Cumberland Health Care Facility, would qualify as a hospital in this commonsense definition that she had mentioned earlier.
Hon. J. MacPhail: We examined that specifically. Legislative counsel explicitly examined the services provided form, and it is a hospital. But it's known in the community as a health care facility.
[ Page 17649 ]
C. Hansen: I guess my point to the minister is that there are lots of facilities around British Columbia that are not called hospitals. The legislation, because of the way the definition is worded, specifically defines what a hospital can or can't do, if it's going to be labelled a hospital. In this case, we have a facility that's not labelled a hospital, yet the sections that were just passed refer specifically to each hospital listed in the schedule. It doesn't refer to each hospital and health care facility listed in the schedule. I wonder how the minister rationalizes that.
Hon. J. MacPhail: Again, it goes to what actually occurs on the ground. Some legislation is actually very practical. This health care facility is guided by the Hospital Act as the Hospital Act applies to acute care services.
Section 6 approved.
Hon. J. MacPhail: I move the committee rise and report the bill complete without amendment.
The House resumed; the Speaker in the chair.
Bill 21, Abortion Services Statutes Amendment Act, 2001, reported complete without amendment, read a third time and passed.
Hon. J. MacPhail: I move that the House do now adjourn.
Motion approved on the following division:
|YEAS -- 37|
|NAYS -- 35|
The House adjourned at 5 p.m.
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