The Ontario Bar Association has reminded the Attorney General of the need for anti-SLAPP legislation in Ontario:
February 29, 2012
The Honourable John Gerretsen
Attorney General
720 Bay Street, 11th Floor
Toronto, Ontario
M5G 2K1
Re: Report of the Expert Advisory Panel on Anti-SLAPP
Dear Minister:
We congratulate you once again on your appointment as Attorney
General and look forward to working with you.
We are writing to express our sincere appreciation to your Ministry
and the Anti-SLAPP Advisory Panel (the "Panel") on the
panel's thorough and balanced October 2010 Report to the
Attorney General (the "Report"). As the people on the
frontlines of the justice system, Ontario Bar Association
("OBA") members understand the crucial importance of
ensuring access to justice to protect legitimate legal rights while
avoiding the chill on public participation and drain on public
resources that ill-motivated law suits can exact. The Report
provided an effective blue-print for achieving these two
objectives.
The OBA
As the largest voluntary legal organization in the province, the
OBA represents 17,500 lawyers, judges, law professors and students
in Ontario. OBA members practice law in no fewer than 37 different
sectors, including environmental law, civil litigation and
municipal law. The member lawyers who practice in these three areas
would count among their clients every stakeholder in the SLAPP
issue, including public interest groups, corporations,
municipalities and other government agencies. In addition to
providing legal education for its members, the OBA has assisted
government with hundreds of legislative and policy initiatives
– both in the interest of the profession and in the
interest of the public.
The OBA Urges Adoption of the Report and the Introduction of
Anti-SLAPP Legislation The Report has been reviewed by OBA members
in several different practices sections, including members of our
Civil Litigation, Municipal Law and Environmental Law Sections.
With the exception of two relatively minor issues outlined below,
the OBA supports the recommendations in the Report and urges
immediate legislation to put the recommendations into effect.
Specific Concerns regarding Hearing Costs at the OMB
At paragraph 83, the Panel noted as follows:
The OMB made remarks to the Standing Committee on Government
Agencies in September 2009 that are consistent with these
principles:
"costs" awards are very rare. The board has made that
clear; A proponent that's successful should not expect their
costs. The board has written a number of decisions in that regard
over the years that have stated over and over again that parties
with legitimate points of view should be welcome to come to the
board and present their case. A successful party, simply because
they were successful in the end, should not expect a cost
award.
"Costs are based on conduct, and the conduct has to be
reasonable. The board, through its Ontario Municipal Board Act, has
broad discretion to award costs, but through its rules and
practices has really limited that discretion for the members that
are presiding at these hearings."
The OBA agrees with these comments and it is the general experience
of our Members that cost awards in OMB proceedings are rarely
granted.
Despite this historical context, the Panel made the following two
recommendations for amendments to the Statutory Powers Procedure
Act ("SPPA"):
(a) Requiring that applications for an order for costs under
Section 17.1 be made in writing, unless such a procedure would
cause significant prejudice to a party. In making this
recommendation, the Panel stated that "making written
submissions would be considerably less costly than oral proceedings
spread over many days";
(b) Providing that an unsuccessful applicant for an order for costs
should provide a full indemnity to those against whom the cost
order was sought, for their costs in the application (not in the
proceeding on the merits). Again, the Board might be given a power
to relieve against that Rule if it were likely to cause significant
prejudice to the applicant.
The OBA disagrees with these two recommendations for the reasons
set out below.
(a) Written Submissions
With respect to the recommendation requiring costs applications to
be heard via written submissions versus an oral hearing, this
recommendation appears to be based on the mistaken belief that
written submissions would generally be less costly than oral
submissions. Part of this misunderstanding seems to stem from the
costs application in the Big Bay Point matter in the Town of
Innisfil. This particular costs application was anomalous in terms
of the number of hearing days taken up with the issue. In our
Members' experience, the vast majority of costs applications
are dealt with much more expeditiously. To require all costs
applications to be dealt with via written submissions may actually
be more costly for the applicants as significant time and effort
has to be expended in order to prepare such written
submissions
It is our recommendation that a better way to approach the issue
would be to give the tribunal the flexibility to require that costs
applications proceed via written submissions only if it is deemed
appropriate and less costly for the parties to do so. This would
allow for the most cost-effective method of proceeding in each
case. Generally, costs submissions should be dealt with
orally.
(b) Full-indemnity costs on cost applications
With respect to the Panel's recommendation that all
unsuccessful applicants on cost applications should provide full
indemnity to the successful respondent, it is our position that
this does not strike an appropriate balance. The OMB already has
the power to grant full-indemnity costs where a costs application
was brought on frivolous, vexatious or unreasonable grounds.
Fettering the discretion of the tribunal by making full-indemnity
costs universal, fails to draw the appropriate line between
discouraging ill-motivated costs applications while continuing to
allow for legitimate ones.
It is our recommendation that the tribunal hearing the costs
application continue to determine, on a case-by-case basis, whether
costs are appropriate and on what scale. The issue of how costs
motions are handled may be better addressed by individual
tribunals' rules and procedures. The Ontario Bar Association
has proposed a workshop with the Environmental and Land Tribunals
of Ontario (ELTO) on the rules and procedures for costs
applications before ELTO.
Conclusion
Thank you for considering our input and we look forward to moving forward on Anti-SLAPP Legislation. Please let us know if there is anything we can do to be of assistance.
Yours very truly,
Janet Bobechko
Chair, OBA Environmental Law Section
Colin Grant
Chair, OBA Municipal Law Section
Colin Stevenson,
Chair, OBA Civil Litigation Section
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