Canadian Lawyer InHouse

february 2015 8 INHOUSE news roundup a roundup of legal department news and trends services. These factors include: • the nature, extent and value of the assets; • the complications and difficulties encountered; • the degree of assistance provided by the debtor; • the time spent; • the receiver's knowledge, experience and skill; • the diligence and thoroughness displayed; • the responsibilities assumed; • the results of the receiver's efforts; and • the cost of comparable services when performed in a prudent and economical manner. The appeal court decision says all these factors must be considered, but the judg- ment makes clear that perceptions around value must take priority over calculations around billable hours. ". . . value provided should pre-dominate over the mathematical calculation reflected in the hours times hourly rate equation. Ideally, the two should be synonymous, but that should not be the starting assump- tion. Thus, the factors identified in Belyea require a consideration of the overall value contributed by the receiver's counsel. The focus of the fair and reasonable assessment should be on what was accomplished, not on how much time it took. Of course, the mea- surement of accomplishment may include consideration of complications and difficul- ties encountered in the receivership." In an interview with The Windsor Star, James Cooke, the local lawyer who repre- sented Diemer, said the appeal court's deci- sion could spell the beginning of the end for the billable hour. "A lot of my clients are farmers and owners/operators of businesses in Windsor and would never in their life hire a lawyer at $750 an hour or any hourly rate like that and don't see why they should be obligated to pay those kinds of fees just because they're in a bit of a financial bind." Cooke said banks will have to think twice before hiring legal counsel on behalf of cli- ents who can't hope to afford corporate rates for legal services. IH — David Dias Anti-SLAPP legislation reintroduced in Ontario T he province of Ontario is trying once again to introduce legislation to stop litigation brought to stifle opposition to issues of public interest. On Dec. 1, Attorney General Madeleine Meilleur announced she is reintroducing the protection of public participation act, 2014 to "balance the protection of public participation and freedom of expression and protection of reputation and economic interests." It was originally put forward by Meilleur's predecessor, John Gerretsen in June 2013 but died on the order paper when the provincial election was called. Known as strategic lawsuit against public participation, SLAPPs are used by developers or companies against individuals who protest projects, often in environmental and municipal planning disputes. The law would provide for a fast-track process in which a judge would be given powers to apply a legal test to determine if the case could proceed or be dismissed. A request to dismiss would be heard within 60 days. David Donnelly, an environmental lawyer in Toronto applauds the legislation saying de- velopers have been "by-and-large rewarded" by the system by allowing SLAPPs to proceed. Donnelly refers to his client at the Rural Burlington Greenbelt Coalition, which was opposing the dumping of untested fill at the Burlington Airpark. When they cited government documents in their criticism of the dumping of the fill in the greenbelt, two members of the coalition were slapped with a $100,000 defamation suit. "It's working its way through the courts now, but it's a great expense to the group." Don- nelly says rarely do the initiators of a SLAPP suit expect to win in court but they are "almost always rewarded with the frustration of their opposition." Jennifer Fairfax, a lawyer who practises environmental law at Osler Hoskin & Harcourt LLP says the way the bill is currently drafted doesn't provide any guidance for the courts and could open the bill up to abuse which could in turn deprive plaintiffs of legitimate remedies for real harm they are actually suffering as a result of actionable conduct by people. Fairfax says it could cause legitimate actions to be thrown out of court prematurely. "Sometimes people are not playing fair in the court of public opinion and you need to bring a lawsuit as a legitimate tool to hold people accountable," she says. Some question whether there has been proper analysis done to demonstrate that SLAPPs are "a real problem in our system." There is also criticism the plaintiff has to prove there is no valid defence. "This legislation proposed is terrible, it is completely unfair that we would not allow people to bring a valid claim and force them at an early stage before discovery with limited cross-examination rights to prove there is no valid defence to the claim, let alone that it has substantial merit," says Brian Radnoff, a partner at Lerners LLP in Toronto. Radnoff argues just because someone protests something and it's a matter of public interest doesn't mean it should fall under this legislation. While he acknowledges there have been examples where plaintiffs have abused the legal system to try and stifle protestors, it doesn't mean it's "an empirical problem." "There are lawsuits where environmental activists protest something and a large corpo- ration commences an action against them but the fact that happens and those actions may practically limit their ability to speak — that doesn't mean it's a problem. The issue is: have the protestors done something that should be the subject of a lawsuit?" While many states in the U.S. have anti-SLAPP legislation, Quebec is the only province in Canada to have it. British Columbia had it up until 2001 but it was repealed. IH > continued from page 7

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