City supports proposed provincial legislation that will have no impact on libel cases brought on by the air park.

By Pepper Parr

July 5, 2104

BURLINGTON, ON.

It was Council showing leadership and venturing into policy that it has not always been comfortable with.

We are hearing the phrase “big city amenities with a small town feel” which plays well into the mindset of most of the Burlington population.

The legal issues surrounding the air park are certainly big city – we don’t find ourselves in front of the Ontario Court of Appeal all that often.

The property in this photograph has been raised about seven feet – other parts of the air park property have been raised more than 30 feet – all without site plan approval.

Last week council found itself being asked to support a Resolution that would have Burlington asking the province to get on with legislation that apparently has all party approval – it died on the Order paper when the election was called.

Should the province enact the legislation – it won’t mean a pinch of difference for the people who face legal claims by the air park and for the average resident who wants to ensure that the school their child will attend has the programs they need and that there will be room on the soccer team as well – the legislation is about as remote as the creation of a Caliphate in the Middle East.  Less than 1% of Burlington’s population even knows what a Caliphate is.

But it is nevertheless important and it was time for Burlington to get behind the legislation.

The resolution debated at council last Monday was for the city to urge to province to pass legislation that would prevent SLAPP suits.  A SLAPP suit is:  “A meritless legal action brought to intimidate opponents, deplete their resources, reduce their ability to participate in public affairs, and deter others from participating in discussion on matters of public interest.”

Burlington had an opportunity to pass such a resolution in the 2008-2009 fiscal year – it chose not to do so.

The SLAPP legislation is a good thing; a very good thing.  Ward 6 candidate Vanessa Warren delegated on the issue and gave one of the most stirring delegations I have heard in some time.

It is important enough for the Gazette to publish it in full.  Stuff like this matters and Burlington is fortunate to have people like Warren who will fight the good fight.

That it might cost the city a bit of money to support this resolution – we’ve spent much more money for less worthy matters.

Here is what Vanessa Warren had to say:

Vanessa Warren, one of the three libel suit defendants and perhaps the best delegater this city has seen at a city council meeting, is a candidate for the ward 6 seat – home of the air park.

Citizen Advocates have played critical roles in environmental and social protection throughout the post-Kovachik history at the Airpark, and indeed all over our City.  In 2008, local residents rallied to stop Vince Rossi’s proposal for an 8000 car auto-auction lot, and then regrouped to stop a 65 m high cell phone tower to be located next to their residences on Appleby Line.

You all know the very recent history at the Airpark, and I think you are also aware of the enormous amount of citizen advocacy that has contributed tireless hours to trying to bring appropriate oversight to the Airpark.

After Justice Murray’s ruling in October 2013 that the Airpark comply with environmental enforcements by the City and Province, there was no cooperation.  The seemingly thin legal arguments that were the foundation of the Airpark’s appeal this month didn’t even get the Ontario Court of Appeal judges through to lunch.

That should have been the end of the story, but still, no compliance.  Currently, for example, the Region of Halton has hired a consulting firm to investigate the repeated wash outs occurring after rain events on Appleby line, and they are having difficulty getting permission to access Airpark property to complete their review.

However, there is one set of laws that the Airpark does think are valid, and those are Ontario’s onerous libel laws.

Vince Rossi, president of the Burlington Air Park Inc.,  and believed to be the sole shareholder of the private company, has sued three Burlington residents who spoke out against the development, which he did without the site plan approval the city said was needed.  Rossi has since indicated he will seek site plan approval.

On April 16^th of this year, the Hamilton Spectator published an opinion piece by Vince Rossi, owner of the Airpark.  It seemed almost delusional in its attempt to re brand and spin the grim history he had presided over, and was so misleading and insulting that it stuck in the craw of the community that had been under siege for the previous 5 years. 

I published a response the following day on my own blog that addressed the information I believed to be specious, point by point.  I felt then, as I do know, that the Airpark could not be allowed to advance a glib “business as usual” promotional policy with the wake of so much damage still rocking our Protected Countryside. 

I have never lied, I have merely stood witness and tried to not allow a developer to operate in the absence of scrutiny, and as reward, I get to be a defendant in a lawsuit.  

Monte Dennis, one of the three libel suit defendants.

David Donnelly of Donnelly Law, and Brian MacLeod Rogers, a leading libel lawyer and member of the Attorney General’s Anti-SLAPP Advisory Panel, are representing myself, Monte Dennis and the RBGC in this case, and they characterize this claim for libel as a SLAPP suit (Strategic Litigation Against Public Participation).  SLAPP suits are meritless legal actions brought to intimidate opponents, deplete their resources, reduce their ability to participate in public affairs, and deter others from participating in discussion on matters of public interest. 

Ask yourself how many times you’ve seen advocacy bring about great change in Burlington – or prevent deleterious change.  Ask yourself what Burlington looks like if SLAPP suits become a useful tool for developers to silence counterarguments.  How could we hope to maintain our green space and our Rural North against development in that reality?  How do we maintain our quality of life if we are not allowed to speak to it?

Ask yourself what you would do if a developer was trying to silence all-candidate dialogue on a project by gagging one candidate with a meritless suit?

How damaged does dialogue in the public realm become when discussion on critical issues is muzzled because it is ‘before the courts’?

This amounts to corporate censorship.

I am now faced with the real emotional and financial stress of a $100,000.00 claim.  We will, of course, be vigorously defending the lawsuit, and I’m confident that we’ll ultimately be successful, but in the meantime my resources will be taken away from the public and political work that I should be focusing on – which is just what a SLAPP suit is intended to do. 

It is site changes like this – made without site plan approval, that upset rural Burlington residents who then found themselves facing libel claims for speaking out. It took some discussion for the city to decide to support legislation that would prevent such libel claims. The city hasn’t decided if it wants to ask for standing as a friend of the court when there is a trial – some ask – if there is a trial?

This is a deeply destructive force, and it must not be allowed to silence other citizens.  Quebec and 28 US States have passed anti-SLAPP legislation to protect their journalists and citizen advocates. 

Anti-SLAPP legislation provides speedy redress for civil claims against people engaging in legitimate speech and public participation, as is certainly the case here.  

Please unanimously support this resolution tonight so that we can send a clear message to the Province on the need for anti-SLAPP legislation.  I would also ask that, as our 7 Regional representatives, you champion this type of resolution at the next possible Regional Council.

In addition to this resolution, I would ask that the City intervene in this lawsuit as Amicus Curiae or Friend of the Court.  You, the City, are in a unique position to speak to the context of this case, having been engaged with the Airpark over the past 18 months.  This does not require you become a party to the case, but it would help to frame the defense of fair public comment and it would send exactly the right message to your advocacy community, perhaps thawing the ‘libel chill’ that threatens public dialogue and engagement.

Just like in the Airpark dispute, I believe right and wrong are very clear here, and by passing this resolution, and becoming a friend of the court, you can take a strong position on this case, but more importantly, you can publicly acknowledge the role that our City’s great advocacy community plays in our mutual well-being.

Pat Moyle, interim city manager put the rationale for passing a resolution that supported SLAPP legislation being passed by the province.

At one point, in the discussion that followed the delegations, it looked as if there was going to be a little difficulty getting the resolution approved. But after interim city manager Pat Moyle spoke on two occasions, council began to come to the conclusion that this was a good thing to do.  And it was – and it was passed unanimously on a recorded vote.  There were a couple of Council members who may have had to hold their noses when they stood – but there was no way they were going to be on the wrong side of a Motherhood issue.

During the debate Monte Dennis, one of the defendants said there was fear in the minds of many in the community. Councillor Craven said that in his 14 years as a member of Council he had never heard of any intimidation in the community.  The people in the Beachway would beg to differ on that score.

Warren has asked the city to consider participating in the libel court case when it takes place as an Amicus Curiae or Friend of the Court, which was another very good idea, but Councillor Dennison wasn’t comfortable with that idea.  He wanted to hear what the city’s solicitor had to say – and that indeed would be interesting to hear.  There are arguments for and against seeking standing in a court case as a “friend of the court”.

It would be very interesting to hear what solicitor Nancy  Shea Nicol would have to say – it would give the public a sense as to the kind of legal mind she has; something that is not always clear, when she makes presentations – far too many of which get heard in closed sessions.