City Considering SLAPP against Terry Fox Road Extension Opponents

In a break with city policy, Ottawa's city solicitor is recommending the city try to intimidate the opponents of the Terry Fox Drive extension into dropping their legal action against the city.

As the Ottawa Citizen reports:

The fight over the Terry Fox Drive extension could come with a $50,000 legal bill, city solicitor Rick O’Connor said Tuesday.

And the group of people who want to stop the $47.7-million roadway should be ordered to put up the cash before their case goes ahead, O’Connor told members of city council’s corporate services committee.

“We would be asking the court for this particular group to put money into the court to be set aside in the case that we win and that we’re entitled to our legal costs at the end of the day,” he explained. “If we are successful on a motion for security for costs, we’d be looking for this corporation to set aside approximately $40,000 or $50,000.”

The corporation, South March Highlands Carp River Conservation Inc., is taking the city to court next Tuesday in a bid to stop the Terry Fox Drive extension, a four-kilometre road being built through the ecologically sensitive South March Highlands in northern Kanata.

The group will ask the judge for an injunction, which would put an immediate stop to construction, pending a judicial review of whether the city broke the law in going ahead with the roadway without an updated environmental assessment.

The City of Ottawa has a policy not to ask for court costs from community groups that undertake litigation in the public interest. However, O’Connor said that South March Highlands Carp River Conservation Inc. does not meet the definition of a community group, having incorporated just three weeks before the lawsuit was filed.

“Clearly they initiated the incorporation solely to protect themselves … and they should know that they can’t hide behind the incorporation if, at the end of the day, we are entitled to have our costs,” he said.

Eric Gillespie, the lawyer for South March Highlands Carp River Conservation Inc., said it is the legal arm of a coalition that represents several community groups, some of which have long fought for conservation in the area.

“The City of Ottawa has a clear policy to not seek costs from community organizations. As a result, a request of that nature is very surprising and would seem very inappropriate,” he said.

This is clearly an attempt by the City to use the SLAPP (Strategic Lawsuit Against Public Participation) tactic against a citizens group concerned about the environment and the ecological integrity of the South March Highlands to prevent them from acting in the public interest. This is a tactic that Environmental Defence and more than 60 Ontario groups are calling on the province to pass legislation protecting public interest groups from, and it is a tactic that we certainly do not expect representatives of the public to employ.

Considering the city policy to play fast and loose with federal and provincial environmental laws, as well as ignoring it's own demographic data, all in pursuit of free federal money, when it comes to this project, perhaps we should not be surprised by this latest proposed tactic.

Paul Renaud of the Coalition to Protect the South March Highlands has responded with the following statement:

This is absolutely outrageous and none of us should accept this abuse of municipal power against its own citizens.

1. How is it not in the public interest to conserve and protect the South March Highlands? Of course it is.

2. How can a public interest group stop being a public interest group by acting in the public interest? Does this mean that Friends of the Greenspace Alliance and other public interest groups are no longer acting in the public interest to defend green space just because they incorporate? Of course not.

3. Public interest groups already have to pay twice – i.e. for both sides in this legal case: our lawyer and the City’s lawyer who is paid by our tax dollars. Why should we pay 3 times? Perhaps we should offer to withhold our tax dollars to level the playing field.

4. The Coalition to Protect South March incorporated precisely to avoid this type of scare tactic being used against its members. Clearly we were wise to do so.

5. Is the City so unsure of its case that it is trying to keep it from getting to court? If so, why is City Council condoning both potentially illegal activity and the abdication of its policy not to pursue costs?

The Sierra Club Canada has issued the following statement:

Sierra Club Canada is shocked to hear the City of Ottawa is pressing a
community group for up-front court costs in the South March Highlands
case. Despite City policy not to demand court costs from public
interest community groups, a city solicitor is pressing for the group
to pay as much as $50,000.

“Moves like this impede the democratic process in the City of Ottawa,”
said Sierra Club Canada Executive Director John Bennett. “Citizens
should have a right to voice their concerns without fear of
heavy-handed reprisal.”

“There wouldn’t be a need for this if the City had obeyed the
environmental assessment laws in the first place,” said Mr. Bennett.
“The City is acting as a bully selectively applying its own rules.”

The Fifth Column calls upon all Ottawa citizens to let your city councillor know that you do not approve of your municipal government using intimidation tactics against citizens groups that oppose the actions of the city or developers.