SLAPP Battles in the 6ix

What happens when a 24-year-old student takes on a powerful developer—and wins? 

Gavin Tighe and Stephen Thiele dig into Sheridan Retail Inc. v. Roy, a landmark Ontario case that captures the very essence of anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation. 

They unpack the David-and-Goliath dynamics between a large developer and a university student who dared to speak up about potential code violations in a redevelopment project. 

Gavin and Stephen explore the wider implications of public discourse, the abuse of legal systems to silence opposition, and how the courts are pushing back in defense of free expression.

Listen For

0:26 Sweating the Law: No A/C and Smog in Downtown Toronto

2:51 Legal Bullying 101: Developers vs. Ratepayer Groups

5:13 David vs. Developer: The Sheridan Retail Inc. Case

7:51 $300,000 Lawsuit Against a 24-Year-Old

10:05 Judge Calls Out Strategic Silencing

13:14 Damages Awarded To the Defendant? Yes.

17:07 In Defense of Development: The Other Side of the Story
 

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Contact Us

Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Stephen Thiele (00:00):

Usually when you've got activists, they start posting on Instagram or Facebook or other social media from the decision. It's certainly not indicated in the decision where the student did any of that, and I think actually the judge commented on that, which really made this case a classic slap.

Gavin Tighe (00:26):

Hello and welcome to the next episode of Beneath the Lawn. I'm Gavin Tai here with my friend Stephen Thiele. Hello, Gavin. I am pretty good, pretty good for a lovely kind of afternoon. We're both in the office on a weekend, and just so everyone listening, you see us fainting and one of the, we're in an office tower in downtown Toronto, and I guess it's not cheap to air condition the building.

Stephen Thiele (00:58):

No, it is quite stuffy in here. And for those who are watching this on YouTube or streamed, you can see over Gavin's shoulder the haze from the wildfires that are happening out in Western Canada.

Gavin Tighe (01:13):

Yeah, so it's smoky

Stephen Thiele (01:15):

And hot smog. Yeah,

Gavin Tighe (01:16):

It's terrible. But I guess the landlord saves some dough by not air conditioning the buildings on the weekend, which is okay, I guess you save your money where you can,

Stephen Thiele (01:28):

As long as the wifi works,

Gavin Tighe (01:29):

They don't reduce the rent on the weekend. So I don't know. Anyways, so yeah, speaking of big, bad evil developer landlords who we've got, one of the things, Stephen and I, a lot of our work is in the area of defamation. And in the recent years there has been legislation here in Ontario and other places dealing with what is colloquially known as antis SLAP legislation. Now, SLAP doesn't mean that news sport is, there's something where the guys stand and they punch each other in the face or something. It's not that it's SLAP is S-L-A-P-P, it's an acronym for strategic Lawsuits against Public Participation. And those lawsuits historically have been basically lawsuits where the economically superior party uses the legal process as a weapon to shut up people who are their opponents or people they don't like. Because let's face it, I mean, we talk about cases and we talk about court decisions, but that is literally the end of the marathon of what is a legal proceedings.

(02:51):

So a legal proceedings can take years when you get someone who's not familiar with the legal process and you tell them, oh, well, we be going to trial in, I don't know, three to four years from now, they're like, three to four years. Are you crazy? And then you start to talk about all the steps in the process that are required to be taken prior to even getting to that trial. So people look at the costs of litigation and they just go, my God, I don't want to get into that. So the classic anti slap type situation occurred where a developer of property would run into, for example, a residence group or some sort of rate payers organization, and the rate payers organization would start squawking about this development or what have you, and complaining and starting to organize. And the classic situation would be then the developer who had lots of cash would start to sue individual members of the rate payers group personally, and to shut them up because it was like either you shut up or I'm going to bury you in litigation and you'll go bankrupt.

(04:15):

And most of the people say, you know what? I don't need this crap. I'm a volunteer, or I'm just trying to do the right thing, and I'm not going to reach in my pocket and spend hundreds of thousands of dollars in legal fees to fight your stupid lawsuit. I'm just going to shut up. And it was a bully tactic, frankly, pretty successful one. As you could imagine, a lot of people looking at that situation would go, yeah, I want to do the right thing, but not that badly, and I'm not going to spend my children's inheritance to feel self-righteous about the fact that I've stood up to this developer or what have you. So the case that came out recently in Ontario set up that factual paradigm rather nicely, and at least on its face, cerTighenly appeared to be that exact type of situation.

Stephen Thiele (05:13):

So the case that you're talking about, Gavin is Sheridan Retail Inc. Versus Roy, which pitted a very large developer, I guess, or I would classify them as a large developer, certainly a subsidiary of a large developer against a 24-year-old engineering student who was a university student because the student began to make complaints, take photographs of the work that the developer was doing on an old mall in Mississauga that the developer was seeking to redevelop and construct two condo story towers in the vicinity, two residential 15 story towers. So the developer accused the student of trespassing on the mall, even though the mall was still open to the public, the student made his complaints known with respect to the developer's work to the city, the city investigated the student's complaints and actually found that the developer was indeed breaching the Building Code Act and the Planning Act. So eventually there were public hearings and public consultations with respect to the proposed development project where the student and other local residents, and I've been there as a rate payer, fighting a development. Luckily, we didn't get sued.

Gavin Tighe (06:52):

Lucky for them.

Stephen Thiele (06:54):

Well, yeah, true. And frankly, we won on that way back, which was, it's an interesting fight for sure if you've been involved to organize the community. But anyway, there were public consultations. In this case, the developer accused the student of rooting through garbage and trespassing, and the city eventually did not approve the plan that the developer wanted to proceed with on this old mall property. And on the same day that the plan was rejected, Gavin, the developer, sued the student to basically silence him with respect to his opposition and to the project. And as we know, for

Gavin Tighe (07:51):

300 grand

Stephen Thiele (07:53):

For 300 grand. So

Gavin Tighe (07:55):

I mean, this is

Stephen Thiele (07:55):

Not insignificant to a 24-year-old or anybody, quite frankly. That's a lot

Gavin Tighe (08:00):

Of money. Yeah. The facts as we understand them coming from the decision is it sure sounds to me like everything the student did was within the process that is open to people to make public statements. Now, the student may have said things about the developer or that they were greedy or I don't know. I'm sure they did said that they were greedy or that the development was ugly or made all sorts of issues. But the claim, as I understand the lawsuit, was for defamation of the developer with respect to the comments that the student made. Now, there were other causes of action in there, but I'm kind of lost on why that would be defamatory.

Stephen Thiele (08:48):

Well, and the one thing in this case, Gavin, is the student wasn't posting stuff on social media. Usually when you've got activists, they start posting on Instagram or Facebook or other social media. There really weren't any written statements as far as I could tell from the decision. It's certainly not indicated in decision where the student did any of that. And I think actually the judge commented on that, which really made this case a classic slap action where the developer was basically, again, we say it silencing the student to stop them from visiting the all. And what is curious Gavin, and you've been involved in these kinds of motions, is that the developer actually wanted to prune its decision on, or sorry, its pleading on the motion to only claim that the student had trespassed, that they were dropping the defamation claim because there was no defamation. There is no defamation.

(10:05):

Right. And trying to link the trespass to being separate, sorry, trying to unlink the trespass from the student's expression, but basically, the developer had made admissions that the photographs that the student was taking was linked to the students gathering of information to make the complaints to the city, that they were violating the building code and the planning act, and the judge had nothing of that. Because as you know, Gavin, there's a restriction under the provisions in Ontario as in British Columbia, that once a motion is brought for an anti slapp, you can't take any other steps. You can't amend your pleadings.

Gavin Tighe (10:51):

No, you're stuck with it. There's a stay that takes place as soon as the anti slap motion is brought. So in this instance, I think the Antis SLAPP legislation is very powerful legislation as labyrinthian as it is. I mean, our court of appeal here in Ontario, just chastised, you could almost see the judicial hair being pulled out while they're trying to figure out this statute, which

Stephen Thiele (11:18):

It's a bit of a word salad, right,

Gavin Tighe (11:19):

Is it's in need of some assistance and some clarity. And it's been the subject of an enormous amount of litigation as a result of it. But at its core, and the intention of the section, I think is a good one because what it seeks to do is basically get rid of lawsuits that are designed to impede or restrict or used for improper purposes to gag people who want to talk about things that are important matters of general public interest. So these are not cases that under this legislation where this is something that's of no interest to anybody but the people involved. So I don't know, I'm in an online spat with someone and I say, they're ugly, or they say that I'm ugly. Well, justification is a defense, so they'd win. The bottom line is if it's just between two people who are in a insult war or one person is out a trolling another person, then that won't apply.

(12:32):

But when you're talking about things like development of an area matters of public interest, it's important that those types of expression be protected. It's important that people feel at least some ability to speak their mind on matters of public importance and public interest. Otherwise, everyone will be looking over their shoulder going, I don't want to say this is what I think, but I don't want to say it because I don't want to get sued. And this legislation is designed, I think in some ways, subject to some refinement that it does protect that type of expression and is intended to foster that important public dialogue.

Stephen Thiele (13:14):

Yeah, a hundred percent. And Gavin, what is unique about this decision? I mean, haven't seen very many decisions actually award damages to the party that brings a successful anti-slap motion. There's a provision that allows the court to do that, but I haven't seen many decisions that have awarded damages. And what the court did in this circumstance, in what, to me had the classic hallmarks of a slap claim, is they actually awarded damages against the developer in the amount of $25,000 for bringing the lawsuit and for the accusations, the stress and anxiety that they caused to the students, the accusations that they made against the student at public meetings, including his family, by the way, and just what the court talked about as aggressive litigation tactics. And when I went to law school, Gavin, I took a class where we were required to write about a case and talk about factors that may have influenced the court.

(14:28):

And there's a curious statement in this case, which really leads to I think, the reason why the court was so harsh on the developer and awarded damages against them. And the court said this at a time when our public institutions and the rule of law are under threat and in an atmosphere of increasing polarization, we must act swiftly to ensure that private actors do not use the law as a weapon to punish people who engage in public expression through the formal processes set up to air, social and environmental and safety concerns. And that, to me is a direct reference to what we're seeing take place on the political stage in the United States of America, and people feeling that the rule of law has been under threat. We've had all these tariff announcements and the court incorporating what is currently happening in society into this judgment.

Gavin Tighe (15:32):

Yeah. Well, I think there is a process in these instances. I mean, the other side of the debate, and I always like to take the contra side of the debate just because it's fun to do and it's always good to look at things from the other perspective. There would be a school of thought and just pick up on that comment by the motion judge that says that these processes to air concerns about environmental issues, et cetera, et cetera. Some people would say that they are too much at this point, that they're given too much oxygen in the sense that they are now strangling the very development, which we desperately, frankly need in so many instances. I mean, what we've got here on the other side of the coin, speaking in defense of the developer who is clearly the villain in the decision, but at the same time, we have a conversion or a proposed conversion of what is effectively retail space, which as we see in our society is a area that is in decline just simply because, I mean, we just, were going through the closure of one of the largest retailers in Canada right now, and I think that that's a testament to the fact that large retail just doesn't work anymore with online purchases, et cetera, et cetera.

(17:07):

I mean, people don't go to the department store anymore. It just doesn't happen. But what they do need, and what we do need as a society is we need homes. We've got an enormous housing crisis here, certainly in Southern Ontario and I think across Canada. And we need new homes. We need supply in terms of home building that puts more supply in the market and lets people get into homes that they can afford. And that ultimately will be dependent on, if I remember my first year economics course, if the higher the supply that should theoretically reduce price. But ultimately this was converting retail space into residential space. So one would think a laudable public objective at this point in time, and the process literally strangled this project. I mean, they were successful in shutting it down with the advocacy that they undertook at the various hearings, et cetera, et cetera. Some might argue that that gives a podium or an opportunity to stymie what is a necessary social objective.

Stephen Thiele (18:26):

Well, certainly look, it plays to the whole idea of nimbyism, right? You're absolutely right. Look, all across the world, quite frankly, there's a housing crisis. People are complaining about the lack of affordable homes. And the reality for places like Toronto and Mississauga is there's not much land available anymore to build homes other than to convert retail space, old malls that people are not visiting anymore into residential. And I think in this case here, the redevelopment project, much like we're seeing in other parts of Toronto, certainly where I live in the west end of Toronto, we're seeing condominiums constructed around existing malls to basically deliver clients to those malls by just a two minute walk. And we see that up in Vaughn as well, around Vaughn Mills, if you've been up there, there's a ring of condominiums that are being developed around the mall.

Gavin Tighe (19:40):

Well,

Stephen Thiele (19:40):

So that's what we're seeing. And I think it's unfortunate from a business perspective that the two parties here, the residents and the developer, there were actual meetings between the student and the developer at one point in time, couldn't find a diplomatic way to work together and understand what the developers was trying to do and potentially accommodate the residents. I've been involved in these fights, and what do the residents complain about? These towers are taken away sunlight. It's making things too dark. It doesn't look good, it doesn't fit the neighborhood from an aesthetics standpoint. Those are things that can be easily resolved by tearing a tower or changing the facing of a condominium to make it look and fit into the neighborhood. So

Gavin Tighe (20:43):

Change is always something that a lot of people, there's always going to be a seven.

Stephen Thiele (20:47):

There's resistance,

Gavin Tighe (20:48):

There's going to be a lot of resistance to any kind of change. And you're right in the sense that nobody really, everybody, the same people who would be complaining about this would agree that they don't like the homeless crisis, or they don't like the fact that people can't afford a home, but then there's a protest against building a home because it's in their backyard or it's in their, it's certainly happening in Toronto when you talk about these areas. Yeah, because that's the area logistically where malls are located, where services are, there's transit to malls, there is infrastructure that supports that type of development in or about the location of what was formerly large retail. And I think that that's all going to play into the development issue, but it really raises a concern on two sides. First of all, you can almost feel, I don't think anyone could sanction the developers resort to what looks, frankly, like a bit of a vengeful vendetta lawsuit.

(21:59):

It occurs after, of course, the application was denied. It looks like a bit of peak by the developer to go after who was the squeakiest wheel perhaps in the group that was opposing them. And no one should be using the court system as a weapon to bully frankly, their opponents or to stop what is legitimate concern. But I think there's a fair comment to say, you can almost feel the frustration of the developer. It's like nothing gets done. It's just process, process, giving platforms to maybe not the majority of rate payers, but the loudest of the rate payers or the rate payers who are the most disgruntled, who organize. I mean, they may or may not be the majority. I mean, I don't think one of the things you don't see is for, I don't know, it's not referendums for example, on development where you get all the residents of a certain area to say yay or nay, but it's always the ones who are the most vigorously opposed and who are very loud and organized and have the time and energy to spend fighting it. And I mean, you can feel the difficulties that people trying to build things must face, and it's expensive to do that and to fail, that's an expensive proposition.

Stephen Thiele (23:27):

Well, it certainly takes a long time from the developer's perspective to get anything done. Now, I guess as a matter of fairness, there needs to be a process. A property owner just can't do whatever they want to their property that may have impacts on a neighbor's property without allowing the neighbor to at least voice their concerns or agree to the project. And if they disagree to put their disagreements on the table and to have a body make a determination if the two parties can't get together. So it's, look, I mean, I guess society is organized in such a way that fairness is important, but it takes time. And I think that's why in my view, Gavin, a developer has to take that into account, and maybe they need to take a more diplomatic approach when they look at a development rather than they became entrenched just as the residents became entrenched, and maybe they needed a third party mediator to bring them closer to the table or closer to an agreement before things got out of hand like they did in this case where the city ended up rejecting the project and causing the developer to bring this $300,000 lawsuit against the student.

(24:55):

And I think what was remarkable is that even when the developer attempted to take away the defamation claim and the other claims, and just leave it as a trespass claim, they still wanted $300,000, like 300,000 for trespass. I've never, that's pretty extreme

Gavin Tighe (25:14):

In a mall,

Stephen Thiele (25:17):

I suppose that was open to the public.

Gavin Tighe (25:18):

Well, that raises another point. I mean, it's open to the public until it's not. I mean, the truth is that malls are private property and they can issue notices, trespass notices to people not to go on the property. So for example, if somebody is caught shoplifting in a mall, invariably they will be issued a trespass notice, which is the mall saying, you are not to come back into this mall. And I don't think a lot of people would say that that's not completely appropriate. I mean, they're not public spaces. They are private property that invites the public in, but they have the right to revoke that invitation and to bar people who they choose to bar, and they can issue trespass notice, and they often do, right?

Stephen Thiele (26:09):

But they have to have good reason to do that, right? I mean, I think there's actually a case law on that point that, and you hit on the key thing that the court looked at from my recollection of one of those cases is that a mall exists with an open invitation to all members of the public to visit. And so yes, you can restrict certain people, but if you do it for unilateral reasons, I think that individual would have legitimate complaint against the mall owner. And so what would've been the legitimate reason to prevent the student from visiting the mall, taking pictures of what was basically in the public view? I mean, I don't see that as being a good ground to have issued a trespass notice. Not that one was issued in this case, but

Gavin Tighe (27:05):

No, well, that's a good question. I don't know the answer to that. Was there a trespass notice issued?

Stephen Thiele (27:10):

I don't believe so.

Gavin Tighe (27:11):

So again,

(27:14):

They're pretty difficult to, in fact, usually, usually you've got to give a warning to someone, particularly in this instance. And I think that maybe that's a distinguishing point why the trespass claim was completely nonsense, is that it is a public space until you're told It's not in the sense that everybody's welcome to go to whatever the mall is until they're told no, you're not welcome. So if you've not been told you're not welcome, the default position would be You are welcome. You're right. Exactly. In fact, they do invite people. I mean, I can think of all sorts of malls that are advertising like crazy, spending all sorts of money, try to get people drive traffic through the mall, because why do they do that? Because the more people that walk through the mall, the more they can charge and rent to the stores in the mall because it's stores in the mall exist on the traffic that the mall drives in. So all of this comes back to an economic issue at one point in time or another.

Stephen Thiele (28:10):

And so I guess we should probably wrap this up, but my view here is Gavin, that certainly the developer was not above the law.

Gavin Tighe (28:21):

That's because everybody is beneath it. So thank you so much for listening again to Beneath the Law with Gavin t here, Stephen Thiele. Thanks so much for your comments. Criticisms are more than welcome. As you can tell by the nature of this podcast, we often take, or at least I do, I often take the contrary review. I may or may not agree with it. I just like to test the argument and throw it out there and push back a bit and kick it around, because that's how you figure out if something's pulled water or doesn't hold water. If everybody agreed with everyone, it'd be pretty, first of all, boring. And number two is you really wouldn't come to the best answers oftentimes, I think oftentimes you come to the best solutions when you try to look at things from another perspective, when you try to push back, when you try to take on the mantle of the other person's shoes to mix my metaphors. But in any event, so don't get offended with some of the opinions expressed here, because that's one of the natures of law, is you're always arguing one side of the other. And frankly, as a practicing lawyer, you don't know which brief you're going to get, in which case, and you take 'em all. So Stephen, thanks again.

Stephen Thiele (29:38):

Thank you, Gavin.

Gavin Tighe (29:38):

And always remember, if no one is above the law, then everyone is beneath it.