Protection

of Public Participation Act

Bill 52 : September 24, 2015
Esther Wrightman

SUMMARY
Anti-SLAPP Bill: requested amendments include making Bill 52
retroactive; placing the onus on the Plaintiff to prove the lawsuit isnt a
SLAPP; as well it should specify timelines for filing of responding
affidavits by the Plaintiff.

PRESENTATION
Thank you for allowing me to speak.

As someone facing a SLAPP suit, Im relieved to see Bill 52 finally reach this stage in
enactment. Even so, Im frustrated that it provides no protection for those presently
facing lawsuits.

I ask this body to strike the amendment made last December, which removed the
retroactive clause, so the bill honors the statement made by former Attorney General
John Gerretson to MPP McNaughton in June 2013. "If Bill 83 is passed," wrote Mr.
Gerretson, "the rule will apply to suits brought before the bill comes into force.

Commenting on the amendment that contradicts and guts the bill, Gerretson has this
to say. Obviously the bill is weaker than the one we originally introduced, while
adding, I have no specific comment as to why the retroactive protection is gone
except [to say] it probably shouldn't be gone."

I agree completely; it "shouldn't be gone." {pause}

To say Im a married mother of two, formerly from rural Ontario, until over 200 wind
turbines arrived -- saying this doesnt offend anyone. Notice, I deliberately left out my
opinion and anything that might stir emotion and judgment in others.

However, when I say, the wind energy company, NextEra, dominated my homeland,
destroyed wildlife and its habitat, struck anger, fear, and terror in my community, so
much so that many residents called them NexTerror in daily conversation, people
begin to say Ah ah, Esther You cant use that word, terror! Why, I ask? The
answer I get is, because thats pushing it." "Just use something less controversial,"
I'm told.

NextEra sued me for using the word "terror" in an image posted on the website I
manage, Ontario Wind Resistance, and on the videos of this wind developer
destroying an active bald eagle nest in Haldimand County.

After being served, I asked others what they would do in my position. Almost
everyone agreed I was in the right. Then nearly all of them said they would stop using
the word and image made of "NexTerror," because they wouldnt want to risk
everything they had, and years of their life would wasted in a court battle. All over a
single word.

NextEra had thought this through. They realized there was a 99% chance I would just
stop using the term and parodied image, because thats what usually happens when
they lay a letter on an opponent of theirs. SLAPP suits are cheap and effective, and as
long as the person SLAPPed is scared or humiliated, the corporation doesn't even risk
bad publicity.

It takes a certain amount of nerve to be the 1% who refuses to accede to their
demands, but that doesnt mean the stress, the burden and the impact of a SLAPP
doesnt hit the defendant just as hard. That 1% would no doubt be higher if there was
someone to back them up -- a judge to say, This lawsuit has no merit, thus allowing
the defendant to walk away unscathed with their free speech intact.

But when the burden is put entirely on the defendant, as it is currently throughout
this province, there is no win for them, no matter how the suit plays out. Under the
present law, courts will never question NextEras integrity on this lawsuit.
Meanwhile, the lawsuit has remained a landmine for two and a half years.

If I have damaged them so horribly, as they claim in their suit, why havent they
pursued it? The answer is obvious: Because there is no proof of damage. Just the
opposite, NextEra has prospered in Ontario recently, having been given contracts to
produce a fifth of the wind power in the province. They can smile and hold their
thumb over the detonator on this legal landmine, knowing there is no chance of a
judge reprimanding them or calling THEM out on costs. Legally, they can do this for 5
long years. I can tell you, thats a long time. Im only half way through waiting.

There is really no logical reason why the lawsuits against me, and other current
SLAPP victims, are denied legal protection under Bill 52. Ms. Wynnes office told a
Canadaland reporter that it was for fairness to litigants already before the court,
and to avoid distraction from the important public interest purpose of the
legislation."

Both of these reasons are weak, simplistic and lack a true understanding of what it
means to protect ALL speech and expression.

When we are trying to stop harm from occurring, we dont say we will only help
those who were hurt after September 24, 2015, or those who are under 45 years old,
or those who live in the 905 area code. No, we help all, we protect all.

Nor should protection be denied in order for the government to be fair to the
instigator of toxic SLAPP suits. Right now the system is set up to be unreasonably
accommodating and compliant to corporations like NextEra, while providing zero
recourse for their victims. THATs what Bill 52 is supposed to fix.

As for current litigants being distracting to the debate this is nonsense. Debate is
the bedrock of any healthy democracy. To silence voices, especially voices with
experience, is rank censorship. What kind of law is changed to deny a person access
to justice because their case is distracting to a debate?

The present regime should not be deciding whether I'm "good enough" or "sued
currently enough" to have access to justice. This is the job of a judge. The court asks
specific legal questions, and from that it determines whether or not to throw the
case out.

This amendment to Bill 52 is effectively telling citizens, We believe in free speech,
but only after the Bill receives Royal Assent. We believe in free speech, but only
if it is fair to the Plaintiff of the SLAPP suit. We believe in free speech, but only if
your lawsuit hasnt been distracting to our debate.

As others before me have said, the moment you limit free speech, its not free
speech.

I know, for my family, that this lawsuit minus anti-SLAPP protection, will continue to
harm us until 2018. As a mother and a sole provider for my family, do I risk buying a
home? Do I risk taking over the family plant nursery? And if not, how employable is a
person where a quick Google search shows there is a huge lawsuit directed against
her? Do I risk opening my mouth again?

I am forced to wrestle with these questions daily.

Ladies and gentlemen, thank you for allowing me to speak freely.

Esther Wrightman
St. Andrews, NB

WRITTEN STATEMENT
Bill 52: Protection of Public Participation Act
When it comes down to it, the true purpose of Bill 52 is to cultivate and protect free
speech and expression throughout society.

But the amendment made to this Bill in late 2014 that removed the retroactive clause,
resulted in only a selection of defendants who can now be protected, while the other
few current litigants are excluded and must fend for themselves.

Im one of those current litigants that Kathleen Wynnes office said needed to be
eliminated, and from this perspective Ill explain why I ask this body to strike the
amendment made last December, so the bill honors the statement made by Attorney
General John Gerretsen to MPP McNaughton in June 20131. "If Bill 83 is passed,"
wrote Mr. Gerretsen, "the rule will apply to suits brought before the bill comes into
force.

The Premiers office claimed the change was made for the following reasons2:
1. Fairness to litigants already before the court: The government changed the
application provision from the previous legislation on the principle that it was
fair to people who started litigation to have recourse to the rules in force at the
time the lawsuit was initiated rather than have the rules change in mid-
process. While this was not something that was contemplated prior to the initial
introduction, retroactive rule-making (as a matter of procedural fairness) is
generally not something that is seen favourably by courts and legislatures.

2. Distraction from the important public interest purpose of the legislation: While
the legislation was widely supported by all parties in the legislature (although
the PCs voted against Bill 83 at second reading), the discussion of the legislation
following introduction became clouded by the interests of a few current litigants
and not the individual citizens whose voices had been silenced due to fear of
SLAPP suits. We also heard from many proponents of the bill that the discussion
of ongoing litigation was distracting from the important issues underlying the
legislation.

In my eyes, as a current litigant, this is how the reasons read to me:

1
Gerretsen to McNaughton letter June, 2013:
http://www.scribd.com/doc/151388309/Attorney-General-Gerretsen-Reply-Re-Bill-83
2
Canadaland, March 24, 2015 http://canadalandshow.com/article/wynne-waters-
down-own-bill-benefiting-own-libel-suit

Reason 1: To Provide Procedural Fairness for the People/Corporations who

have Initiated SLAPP Suits.
Reason 2: To prevent a few Current Litigants from Receiving Bill 52s
Protection.

Why should this Bill be more fair to a corporation that instigates a toxic SLAPP suit,
while the victim receives no support at all? Right now the system is set up to be
unreasonably accommodating and compliant to the Plaintiff, while providing zero
recourse for the Defendants. THATs what Bill 52 is supposed to fix.

We should not be revering the litigant that is abusing the legal system. Perhaps this is
happening because generally these corporations that file SLAPPs have money, and
lobbyists in Queens Park. The corporation that sued me (NextEra Energy) has at least
five3.

And what does it take for a current litigant to now bring an end to a SLAPP suit? They
have to wait out the 5 years in hopes it disapears, or perhaps even go through the
lengthy and costly court process, or even contemplate counter suing, doubling the
legal burden and costs on them.

We dont use outdated laws to govern old crimes. We use todays standards,
thankfully. The same process should be followed for Bill 52 so everyone is able to
benefit from the new anti SLAPP legislation.

When we are trying to stop harm from occurring, we dont say we will only help
those who were hurt after a certain date, or are a certain age, or live in a specific area
only. Even if it makes it slightly more difficult for the courts to handle, thats okay,
because at least the RIGHT thing is being done.

As for the concern over the interests of a few current litigants - they should not
make any difference to the building of a soundly principled Bill. Having read all the
debates, not once did I feel it was clouded by any party or litigant. What bothers me
even more is that this reasoning completely disregards the whole purpose of Bill 52
speech/expression/interests are being purposely stifled by the addition of this
amendment.

To silence voices, especially voices with experience, is rank censorship. What kind of
law is changed to deny a person access to justice because their case is distracting
to a debate?


3
NextEra Lobbyists:
https://lobbyist.oico.on.ca/Pages/Public/PublicSearch/SearchResults.aspx

Common sense says the actual lives and opinions of Ontario residents should matter
more than the interests of these foreign corporations that choose to rule with
lawfare.

Please make the adjustments to this Bill so that it can be used by all who are affected
by SLAPP suits.

This bill should also reverse the onus of proof. The Plaintiff should have to prove that
the suit is not being brought to silence public participation.

It should also specify timelines for filing of responding affidavits by the plaintiff as the
panel recommended in 2010. Delays to the hearing of the motion only work in favour
of the plaintiff.

Ive attached two letters from earlier this year to the MPPs, as well as background
information on the lawsuit I face.

Thank you for your consideration of this issue.

Yours truly,
Esther Wrightman
St. Andrews, NB

Attached:
Background
Letter to Attorney General February 23, 2015
Letter to Attorney General March 26, 2015

Background
When I was first hit with a SLAPP suit it felt more like a ruthless joke than a true legal
action. As the years wear on, I see its a combination of these that has serious
implications on those hit with such lawsuits.

Right now, Im in a stalemate with Florida based wind energy developer NextEra
Energy. They sued me4 on May 1st, 2013 for a long list of items that fall under
Trademark, Copyright, Competition, Injurious Falsehood, Trade Libel, and
Appropriation of an Insignia.

What had I done? Several months previous I filmed this company cutting down an
active Bald Eagle nest in Haldimand County5 (there were only 58 nests in SW Ontario)
so that they could build roadways to three of their wind turbines that had yet to be
constructed.

I pushed the video up to YouTube, along with a parodied image of the companys
logo as Nexterror. This parody had been used on my website for a year already,
and previous to this, the name Nexterror had been used within my community
quite freely as we were recipients of all the terrors and errors this company made
it had become common language in rural Ontario, I just illustrated it.

4
Statement of Claim: http://www.scribd.com/doc/145340593/Statement-of-Claim-
Nextera-Energy-ULC-v-Esther-Wrightman
5
NextEra destroys bald eagle nest video:
https://www.youtube.com/watch?v=EtF6TUYfj8c


A short while later a letter arrived6 telling me to remove the two movies about the
eagle nest destruction one of which did not even have the parodied image on it7, I
guess they were shooting high to see how much could be brought down with one
legal letter. I refused.8

Then they sued.

This is when the work and stress really starts to happen for the Defendant. All of a
sudden you have to figure out how to write and file a Statement Defense in 20 days.
Maybe for the average lawyer that isnt such a big deal, but for a mom who works at
a plant nursery, and lives 4 hours away from Toronto where it was filed, those were
very long and intense days that did not involve any family or outside work. I asked
and received a much-needed extra week from NextEras lawyer to complete it.

My Defense9 was filed on May 27, 2013 and I did not hear another word from NextEra
until December, 2013 when they requested an exchange Affidavits10. I responded
asking that they please wait until after Christmas I was just finishing a 4 month
grueling Environmental Review Tribunal hearing on their Adelaide wind project
around my home, and they knew I was weakened, and perhaps wanted to see if I
would give in and do anything they said to make the lawsuit stress go away. Two
other wind projects had just been approved at this time around my house, so there
was the added pressure to appeal them as well, but I had completely run out of time
and energy.

I never heard from NextEra again. Eventually they even stopped commenting to
reporters on the case. We continued to appeal and protest, but all of their hundreds
of wind turbines went up around us, and not wanting to live in this new industrial
zone, risking the negative health effects that we saw happen to so many others
around us, my family packed up and moved to New Brunswick. No, this wasnt a light
decision to move, I was born and raised there, and my family had lived in the rural

6
Cease and Desist letter: http://ontario-wind-resistance.org/2013/04/03/nexterror-
energy-sent-me-a-cease-and-desist-demand-what-would-you-do/
7
Second video: NextEra Energy in damage control mode on Eagle Nest removal
https://www.youtube.com/watch?v=RNh-_3Z6y7c
8
Letter to NextEra: http://ontario-wind-resistance.org/2013/04/08/cease-desist-for-
nexterror-energy-no-thanks/
9
Statement of Defence: http://www.scribd.com/doc/145427083/Statement-of-
Defence-NextEra-Energy-ULC-v-Esther-Wrightman
10
NextEras last letter Dec. 4, 2013
https://www.scribd.com/doc/190442818/Wrightman-NextEra-Re-Exchange-of-
Documents-Dec-4-2013

areas nearby for hundreds of years I fought for 6 years so we wouldnt have to
leave.

Only NextEra now has the power to proceed or drop the action, and two and half
years later they still havent advanced beyond filing the Claim. In fact its been almost
two years since their last correspondence with me. Say nothing. Do nothing. Just
hold the lawsuit there for the time allowed five long years.

If NextEra chooses to ignore the straight and logical suggestion to drop the suit, and
Bill 52 remains without retroactivity we will have to face either another 2 years of
waiting, or possibly a very nasty court battle with no SLAPP protection. I hope
neither is the case, because my family is tired, and I long for a life that isnt clouded
over by this malicious action.

What frustrates me is that although NextEra claimed harm, they never proved it.
But this court action has in turn put the harm on my former community, who are less
likely to be activists now for fear of a similar action hitting them personally. The
Canadian Civil Liberties Association shares some of my concerns of this lawsuit as
well. It is wounding my family, for the many reasons Ive listed in the letter to the
MPPs below, and it damages my future that is clouded by being an individual who
dared to say no to their demands to be silent. Harm is now aimed one way and
that is at the defendant.

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Letter to Attorney General February 23, 2015

Dear Members of Legislature,

The anti-SLAPP Bill 52 is not the same creature that was previously proposed as Bill 83
a year ago. In short, every person or organization that you all passionately spoke for,
who were facing SLAPP suits, will not be protected by the new Bill 52. There was a
change in the wording about who would now be eligible for protection by this
Bill. Before, that date was to be left open to the discretion of the Lieutenant
Governor. In the current version as Bill 52, the effective date is the day it receives
Royal Assent. So basically because we (those facing SLAPP suits) werent sued on a
current enough date, we do not qualify for this Bills protection.

I dont believe I was being nave in thinking that this legislation would help ALL
affected by SLAPP suits. On June 26th, 2013, shortly after I was sued by Florida based
wind turbine developer NextEra Energy, the Attorney General John Gerretson wrote
(see attachment) my MPP Monte McNaughton this: I can tell you that if Bill 83 is
passed, the rule will apply to suits brought before the bill comes into force, thus
allowing for dismissal of strategic litigation after a fast-track motion procedure. But
this is precisely what was changed in Bill 52 I suppose it seemed only fair to Mr.
Gerretson to extend the protection to all victims of SLAPPs, but then something
changed with the last election, and we were all swiftly abandoned.

If this seems like small potatoes, like a few SLAPP suits are no big deal Id argue that
assumption straight up and down. Its akin to saying the elimination of a voice, a
satirical voice, yes such as cartoonists, is no loss for freedom of expression. It is. Not
only does lawfare frighten those who speak out with a strong voice, it terrifies
those with weaker voices into not having a voice at all.

Some examples of what I have witnessed in the two years Ive been under the cloud
of a SLAPP suit are:
Suppression of Media: I had a reporter, who eventually wrote a story on the
NextEra lawsuit for a large newspaper in Ontario, interview me by phone. He
seemed to be very careful in what he asked, almost frightened, which at the
time I couldnt understand. He asked if my video of NextEra destroying the
bald eagle nest was public, if it was safe to share. I told him it was publicly
available on YouTube. What he was concerned about was writing or linking to
something that could get him sued as well I was shocked. In the end the
video link was not published in his article. It was clear to me that the lawsuit
prevented the press from feeling comfortable to report on the full story. If
there had not been a SLAPP suit he would have readily posted the link to the
eagle nest takedown video.
Stifled Communication: A SLAPP suit makes the person sued a liability to
communicate with. People were cautious as to what they said to me over the

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phone or in e-mails one neighbor wouldnt even say the word lawsuit to me
on the phone. Perhaps irrational reactions, but this is the knee jerk response
people had they didnt want to be taken down by this corporation they
fully supported me but were frightened that the same could happen to
anyone who spoke ill of this company. It was frustrating for me as it
hampered the frank discussions I would have with people NextEra had yet
again succeeded in their local terror tactics, frightening opposition into
silence.
Tense relationships: My son came home from elementary school one day and
told me a boy on the bus said, your mom is an idiot for getting sued.
Because everyone who gets sued is guilty, a corporation couldnt be in the
wrong, could it? I felt terrible for him, having to defend my right to speak for
the community, which was now in tatters from all the wind company cement
trucks and blades moving in (over 200 turbines went up in Lambton-
Middlesex last year). But you can see how being associated with a person who
is sued is damaging.
Repressed voices: Ontario-Wind-Resistance.org still has a perfectly legit
satirical image of NextEra on it, but it is now hosted in Iceland where Freedom
of Expression is practiced and protected with legislation. Since there is a
lawsuit connected to the NexTerror image it is not a site that I feel
comfortable handing over to another individual to operate it just wouldnt
be right to drag another person into this revolting mess. So the lawsuit has
also restricted others from becoming directly involved for fear they would be
attacked with lawfare.

And Ive moved. Out of the province to small town New Brunswick. Did the lawsuit
force me to move? Yes, partly. Did NextEra, Suncor, WPD and the Ontario
government force me to move? Absolutely. I never in my life dreamed of moving
from the home and farm I was raised on. Fighting with every bone in me for the last
6 years was hard enough, without a lawsuit piled on top of it. NextEra knew exactly
what it was doing. A huge corporation pretended to play victim in their Statement of
Claim theyve been anything but a victim. The lawsuit is to be two years old in a few
months, and I haven't heard form NextEra in over a year. They like where they sit
right now: me handicapped with a pending lawsuit, and they can continue to operate
business as usual now that the population is silenced. No skin off their back.

With the change in the wording of Bill 52 I will continue to sit in SLAPP suit limbo for
years and years to come, denied simple protection from the Ontario government
unless the Bill is amended to cover ALL affected persons, not just those who will be
sued later.

I ask that members of legislature review Bill 52 with this in mind, knowing that there
are many others who are in the same abandoned predicament and look to you to
make the changes to this Bill so that it is fair, accessible and just for everyone.

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Yours truly,
Esther Wrightman
St. Andrews, NB

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Letter to Attorney General March 26, 2015

Dear Ms. Meilleur, Ms. Wynne, and MPP's,

Thank you for your response and clarifying your government's changes to Bill 52.

You state that the change was made, "on the principle that it was fair to people who
started litigation to have recourse to the rules in force at the time the lawsuit was
initiated, rather than have the rules change after that time."

The "people" who start SLAPP-like litigation are corporations, powerful politicians...
those types. I kept re-reading your statement, trying to find the part where the
person who is being SLAPPed, is treated with equal fairness, gets a chance at justice.
I couldn't find it anywhere. In my case, the government feels they are willing to
sacrifice my simple access to the protection of Bill 52 (a pretty small deal, really) in
order to be "fair" to the SLAPP-suit plaintiff - NextEra Energy - a Florida based
corporation, the fourth largest Energy Company in the world, who has been granted
contracts by the government to produce 1/5 of the wind power output in
Ontario! Fairness, with this exclusionary change, is served solely to the side
that initiates the lawsuit - the one that is supposed to be curtailed by this very Act.
Jeepers, this IS Alice in Wonderland...

Yesterday I read this quote in regards to the amendment. It states, "Wynnes office
says the only reasons the change was made was for procedural fairness to people
with cases in progress and because debate on the first version of the bill became
clouded by the interests of a few current litigants." I've tried to read up on as many
other current SLAPP cases in Ontario that I could find over the last couple years.
There aren't many, under half a dozen I would guess are publicly discussed.

So I have to ask, who are these "few current litigants" that are so damned as to not
deserve protection from this Bill? Is there a list? Um... am I on it? They must be pretty
worrisome to the Liberal party to have an amendment specifically created to throw
them, and all other current litigants, under the bus. Secondly, in frustration I'm asking
you, "Why is (access to) justice in Ontario NOT blind?"

Yours Sincerely,
Esther Wrightman

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