A Qualicum Beach conservation group avoids defamation claim through new anti-SLAPP legislation—but the development they protested gets approved.

A DEFAMATION LAWSUIT launched by a developer against a small Qualicum Beach conservation group was dismissed on Monday, August 8th, 2022 by BC Supreme Court. It is being hailed as BC’s first dismissal of an environmental SLAPP suit, bolstering the ability of groups and individuals to speak out against development or resource extraction without fear of being sued.

BC’s Protection of Public Participation Act was passed in 2019 to protect the public’s right to speak freely without being hit with a Strategic Lawsuit Against Public Participation (SLAPP). Such claims are often filed by powerful groups with deep financial pockets in an effort to suppress criticism. The Qualicum Beach case was seen as a test of the provincial legislation.

The lawsuit against the Qualicum Nature Preservation Society (QNPS) and Ezra Morse, the society’s president, was filed by Richard and Linda Todsen, owners of Todsen Design and Construction. The Todsens alleged 24 statements made by Morse about a proposed 16-lot development in a sensitive environmental area damaged the company’s reputation by linking municipal campaign contributions to bribery. They also took issue with claims by Morse that he was assaulted because of his opposition to the development and that the project was being pushed ahead despite strong community opposition.

Ezra Morse of the Qualicum Nature Preservation Society (QNPS)

An application for dismissal of the defamation suit was made under the SLAPP legislation and, after a four-day hearing, Justice Jan Brongers concluded the claim fitted the definition of a SLAPP suit and that the statements on social media constituted fair comment or were in the public interest.

“Fundamentally, I consider the statement in issue to be expressions of concern that a municipal politician, who is considering a rezoning application, may be swayed by the fact that the applicant is also one of his campaign contributors. While this concern may turn out to be unfounded , it is deserving of public debate,” Brongers wrote.

“While the Todsens are free to take issue with Mr. Morse’s comments…the Act precludes them from doing so through the vehicle of a defamation claim,” the decision says.

Morse and others in Qualicum Beach who have fought against development on the 6.4 acre parcel of land on the border of Qualicum Beach’s Estate Properties hope that the decision will give more people the confidence to speak out.

“[As] our public continues to lose faith in our political institutions, it has never been more important to speak for a better tomorrow for our children,” said Morse, who fought against the development because of potential environmental impacts and implications for climate change.

“This shows people that they are allowed to get involved and speak on issues of great public interest, such as the climate or housing and doctors and development and community vision without fearing reprisal. It allows our communities to choose activism over apathy,” he said.

While this lawsuit has been resolved, several others have been filed and the result is a chill on public participation in Qualicum Beach, with some people saying they fear speaking at public hearings, said Morse, who believes other communities around the province, and especially those with development pressures, are facing similar problems.

“This is a cloud that has hung over this community and, while our victory does give assurance, we have more lawsuits in our town and, until we can restore civility and dialogue and ensure people know that lawsuits are not how to handle disputes, I think there will still be that fear and chilling spectre haunting Qualicum Beach,” he said.

Chris Tollefson, Morse’s lawyer, said the case demonstrates that the legislation is working and that the courts will safeguard democratic expression on matters of public interest provided it is conducted in an honest and responsible manner.

Chris Tollefson, lawyer

“When a party wants to take on someone who has been lawfully involved in a democratic debate with them, they must ensure that they are not in breach of this law that protects those rights,” Tollefson told Focus.

“I think this is very important in a province where we care so deeply about the environment and where political debates can get so heated. We need to know that the law discourages people—that there is a disincentive—to move those disputes into the legal arena unless it can be truly said that one’s reputation has been damaged,” he said.

Brongers did not award damages and wrote that there was no basis for assuming the Todsen’s claim was sparked by malice.

“Rather, the situation here is fundamentally one where two parties have strong opposing views about the merits of a proposed land development and its potential impact on the environment,” the judgment says.

Costs—the amount of money a party is out of pocket for legal fees—will be decided after both sides either come to an agreement and, if they cannot agree, they will make submissions to the court for a decision.

But the development is approved

Adding a twist to the story, which has some questioning whether QNPS and Morse have won the war, but lost the battle, Qualicum Beach Council, on August 10th, just a few days after the defamation dismissal, voted 3-to-2 in favour of bylaw changes that will allow the Todsen’s development of single family homes and garden suites to proceed in the area that is outside the town’s urban containment boundary.

Google Earth satellite imagery showing the area of the Todsen development on the right where some logging activities have taken place. Photo: Ezra Morse / Google Earth

The decision was made despite the misgivings of some councillors about legal implications of the Supreme Court decision, and concerns about whether the process can be considered valid if some members of the community felt too intimidated to speak against the development at public hearings.

Councillors were told by staff that the town’s lawyers believe the process is solid and there are unlikely to be legal concerns.

But Councillor Teunis Westbroek, who served as the town’s mayor for 18 years and is likely to challenge Mayor Brian Wiese in the upcoming municipal elections, described the process as tainted and voted in favour of a motion to defer a decision.

“I was appalled that some of these tactics were applied and I think we need to take another look before we proceed,” he said. “There are people in this town that are being sued and others that are intimidated by it that weren’t able to speak,” he said.

Councillor Anne Skipsey, who made the motion to defer, said the council is in uncharted territory and should not be ignoring a Supreme Court decision. “We have a duty in this room to ensure and protect the democratic process and free speech,” Skipsey said, adding, “We should not be choosing development over democracy.”

Council ambivalence about the development and discomfort with the way the process has unfolded were illustrated by Councillor Scott Harrison. “If folks hadn’t been so toxic, I might have swayed my vote on this because there are really strong reasons to vote against it,” he said, before voting in favour of the bylaw changes.

Westbroek, who would have liked to see the vote delayed until after the fall municipal elections, said in an interview that the lawsuits had the desired effect of “shutting people up” and the process, together with other underhanded tactics, has divided the community.

“The public hearing was a charade, not only because some people had already made up their mind, but also because people that did speak at the public hearing were intimidated and some of them didn’t speak because of that,” he said.

Despite the court ruling that the Todsen case was a SLAPP suit, the prospect of being sued remains a concern, Westbroek said.

“Even though they win, it still costs a lot of money and it is a huge stress…and you lose time off work and with your family and that will never be compensated,” he said.

Richard and Linda Todsen and their lawyer, Michael Hewitt, did not return calls from Focus before deadline.

Judith Lavoie is a freelance journalist who enjoys exploring stories about the natural world.