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REAL ESTATE "It's a clear signal that the legislature is sending to the judicial system that it should be used for the essence of the dispute and not nourish the dispute by adding frivolous proceedings." — JEAN-FRANÇOIS MICHAUD, OGILVY RENAULT LLP have to protect defendants from SLAPPs. That's why the ULCC's model act "propos- es different measures to reinforce existing remedies, including sanctioning the con- duct of a party, which should encourage the courts to intervene more often to deter abuse of the judicial process." In Ontario, calls for anti-SLAPP laws have recently been inspired by a case involving a marina and resort develop- ment proposed by Kimvar Enterprises Inc. at Big Bay Point on Lake Simcoe. It was opposed by local property owners and residents' groups who soon found them- selves embroiled in lawsuits. The Ontario Municipal Board ruled in favour of the development, which was supported by the local municipality, but the developers were accused of using SLAPP tactics when they subsequently sought $3.2 million in costs. In deciding not to award costs, the OMB determined Kimvar's claim for costs was not made for the improper intent of suppressing public participation but that a cost award against the residents could nevertheless have a "chilling effect." It highlights the need to put proponents and opponents of development on equal footing, says Ontario's Environmental Commissioner Gord Miller, who is call- ing for laws that "could serve to halt SLAPP suits in their tracks" and "provide a means for the public to access financial and other resources in order to exer- cise their participatory rights in planning approvals and other contexts." But this could give citizens' groups "a licence to slander," says Jeffrey Davies, a partner at Davies Howe Partners in Toronto, who represented Kimvar at the OMB hearings. He maintains that slan- derous statements often surface when citizens' groups campaign against prop- erty developments. In most cases, he says, developers will "look the other way," but "there are some highly egregious situa- tions where action is taken." "We know how easy it is to manipulate the buzzword SLAPP, especially in an emotional setting like a hearing and how potentially damaging it can be to a pro- ponent," says Davies. Quebec's law attempts to balance the rights of all parties, says Jean-François Michaud, of Ogilvy Renault LLP. It rein- forces the rules of procedure regarding abuse of process and also provides for new remedies, such as the ability to dis- miss a portion of an action considered unfounded, without throwing the whole action out of court. Costs can be claimed from the party found to be abusing the system and they can be paid in advance. Punitive damages can also be awarded after a process whereby the party com- plaining about abuse must convince the court that there is a prima facie case, after which the onus is reversed and it is up to the other party to convince the judge the proceedings are not abusive. "It's a clear signal that the legislature is sending to the judicial system that it should be used for the essence of the dispute and not nourish the dispute by adding frivolous proceed- ings," says Michaud. So far, other provinces have chosen not to follow Quebec's lead, so David will just have to hope that the courts will use their discretion to keep Goliath in check. Reach freelance business journalist Kevin Marron at kevin@kevinmarron.com Military Law and Operations Dr. Chris Madsen – Associate Professor, Royal Military College of Canada and Canadian Forces College Ensure you have all the legal information you need when working with the Canadian military Military Law and Operations is the first looseleaf publication to examine Canadian military law and operations, and the legal issues of the soldier from a Canadian perspective. In a single source you can readily access information on defence, armed forces and military law, as well as the legal dimensions of operations. Military Law and Operations includes Appendices containing key statutes and case law summaries as well as comprehensive lists of recent courts martial and appeal cases summarized to provide quick access to charge and sentencing information. This is an indispensable resource for lawyers, military professionals and academics in Canada and the United States. Order your copy today! Looseleaf & binder • $210 Releases invoiced separately (1-2/yr) P/C 0266030000 • ISSN 1918-2236 canadalawbook.ca MERGING TRADITION WITH TECHNOLOGY For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd Prices subject to change without notice, to applicable taxes and shipping & handling. Madsen_Military Law (CL 1-3sq).indd 1 CL0110 www. C ANADIAN Law ye rmag.com JANU AR Y 2010 21 12/11/09 1:10:00 PM