In Canada and in the United States, there is a growing phenomenon of abusive litigation called SLAPPs. A SLAPP is an acronym, or an abbreviation, for a strategic lawsuit against public participation. These lawsuits are usually libel and slander actions brought against crusading individuals or public interest groups by big companies to stifle public criticism about them. Some SLAPPs go even further. One gun manufacturing company, for example, sued several public interest groups for millions of dollars alleging that they intentionally interfered with its contractual relations with customers. When the big companies resort to the courts, the public criticism often ceases because the issues are now before the court. Where necessary, injunctions are sought to quiet the bad publicity. The corporate goal of SLAPPs is to intimidate and eliminate critics, deplete the critics’ financial resources, and stall the issues in the court system. The court system is used to thwart the rights of citizens to speak out publicly about corporate behaviour or corporate manufacturing of certain products, such as guns.
Judges have always had an inherent power to control abusive litigation but this power appears not to be working with SLAPPs. Most judges are extremely reluctant to deprive litigants from being heard on the merits (a full hearing of the case) and so they naturally tend not to intervene in a SLAPP to dismiss the lawsuit at an early stage on the basis that it is a frivolous or vexatious lawsuit.
In the United States, more than half of the states have enacted anti-SLAPP legislation to stop this lawsuit trend by permitting the courts to promptly dismiss any lawsuit that is clearly abusive in nature. Among the new tools given to the courts is the procedural ability to shift the burden of proof from the defendant to the plaintiff if the abuse of the court system is obvious. In other words, the big company must prove why the SLAPP it has launched should not be dismissed right away. In Canada, some of the provinces have attempted to introduce their own ant-SLAPP legislation but without much success. Anti-SLAPP Bills were introduced in New Brunswick in 1997 and in Nova Scotia in 2003 but were never passed. British Columbia enacted anti-SLAPP legislation in 2001 but it was repealed a few months later.