democratic

Todsen v Morse: A win for democratic expression

August 31, 2022

Aerial view of Qualicum Beach. The proposed development is located at the edge of the 200-acre forest depicted at bottom right. Photo credit: Shawn /Flickr, 2007, CC BY-SA 2.0.

In Todsen v. Morse, 2022 BCSC 1341, the British Columbia Supreme Court has affirmed that the Protection of Public Participation Act (PPPA) affords robust protection for citizens advocating for environmental conservation. Passed unanimously by the B.C. Legislature in 2019, this case was the first time the PPPA had been invoked in this context.

The decision arose out of an application by the defendants to dismiss 24 defamation claims made against them by the plaintiffs in a lawsuit filed in May 2021.

After a four-day oral hearing, the Honourable Justice Brongers granted the application.  He held that the statements complained of were either not defamatory, lacked “substantial merit” or could be validly defended as truth or as fair comment. The decision is an important contribution to a growing body of PPPA caselaw that explains the role the PPPA plays in protecting democratic expression in British Columbia.

The case concerned public statements made by the Qualicum Nature Preservation Society (QNPS) and the QNPS’s president, Mr. Ezra Morse, opposing development within the Estate Residential Area in Qualicum Beach, B.C. The project proposed by the plaintiffs required an Official Community Plan (OCP) amendment and zoning upgrade to enable a higher density of housing in what is otherwise designated as “Estate Residential” land use under the OCP.

Ezra Morse
The Qualicum Nature Preservation Society and its president Ezra Morse (photo) are sued for statements they made in relation to a proposed development project in Qualicum Beach, B.C. Photo credit: Ezra Morse.

The Court held that the PPPA “provides for a specific pre-trial procedure designed to summarily dispose of certain kinds of civil claims that could silence political debate on issues of public interest. Such claims are colloquially known as “Strategic lawsuits against public participation”, or “SLAPPs”.

Justice Brongers granted the application to dismiss the lawsuit, concluding that “the Todsen’s claim [was] in the nature of a type of SLAPP proceeding that the Act prohibits”.

Tollefson Law were counsel for the defendant Ezra Morse and are regularly consulted by clients and other law firms in SLAPP cases.

Commentary on his decision can be found in The Narwhal, The Tyee, and The Vancouver Sun.

An overview of SLAPP law in Canada can be found here: link.

Katrina Darychuk

Law Student

Katrina (she/her) is a J.D. candidate at the University of Victoria, Faculty of Law with interests in criminal law, disability justice, and environmental litigation. Most recently, Katrina worked in Whitehorse, YK with the Public Prosecution Service and will clerk with the Supreme Court of British Columbia in 2025.  

She holds a BA from University of Toronto in Critical Equity Studies and Ethics and a diploma in Theatre Arts from Langara College. Prior to law, Katrina worked as theatre director and creator across Canada. Her passions include gardening, thrifting, and walking her beloved dog Joe.

Patrick McDermott

Law Student

  • Santa Cruz Superior Court
  • California Attorney General’s Office, Land Use and Conservation Section

Patrick is a J.D. candidate at the University of Victoria, Faculty of Law. He is passionate about public interest environmental law as well as criminal justice reform. Patrick has a B.A. from University of California, Davis, and has legal experience in both Canada and the United States. Upon graduation, he will be clerking at the BC Supreme Court in Vancouver. In his spare time, he can be found backpacking, woodworking, baking, or running with his dog.

Lydia Young

Articled Student

  • 2022 Student mentor in the Pacific Centre for Environmental Law and Litigation | educational program
  • Associate Fellow, Centre for International Sustainable Development Law
 
Lydia received her J.D. from the University of Victoria in 2023 with a concentration in environmental law and sustainability and will be called to the British Columbia Bar in 2024. Lydia is pursuing an 2024-25 LL.M. in Global Environment and Climate Change Law at the University of Edinburgh.
 
As an articling student at Tollefson Law, Lydia has gained experience working on environmental, constitutional and natural resource litigation and has sat at counsel table before the BC Supreme Court and BC Court of Appeal. Lydia is pursuing a career that focuses on biodiversity conservation, natural resource law, green economies and sustainable development.

Anthony Ho

Associate

  • Program Coordinator at the Pacific Centre for Environmental Law and Litigation 
 
Anthony received his J.D. from the University of Victoria in 2014, and was called to the British Columbia bar in May 2015. His areas of practice in public interest environmental law have included environmental assessments, regulatory hearings, judicial reviews, and trials. 
 
He has appeared before the Federal Court and Federal Court of Appeal, the BC Supreme Court, and various tribunals including the National Energy Board and BC Environmental Appeal Board. 
 
In his capacity as Program Coordinator at the Pacific Centre for Environmental Law and Litigation (CELL), he helps deliver CELL’s educational program, which trains law students in litigation practice skills through exposure to real-life pieces of public interest environmental litigation.
 
He also holds a Master of Public Administration (UVic ’14), a B.Sc. in environmental sciences (UBC ’10), and a B.A. in political science (UBC ’10). He is currently pursuing a Ph.D. in Law and Society at UVic.

Chris Tollefson

Principal

  • Professor of Law, Faculty of Law, University of Victoria
  • Founding Executive Director of CELL – Pacific Centre for Environmental Law and Litigation
  • Past President of Ecojustice
 
Chris is the founding principal of Tollefson Law and a Professor of Law at the University of Victoria. He has degrees from Queen’s, University of Victoria and Osgoode Hall Law School, and clerked at the BC Court of Appeal.
 
Chris has appeared at all levels of trial and appeal court, and before various environmental regulatory boards and tribunals. He was counsel to BC Nature and Nature Canada during the Northern Gateway and Trans Mountain pipeline hearing processes.


 
He has published on a diverse range of environmental and natural resource topics including forestry, contaminated sites, environmental governance and assessment, eco-certification, and access to justice. The fourth edition of his national environmental textbook (co-authored with Prof. Meinhard Doelle) was published by Thomson Reuters in 2023.
 
He loves the outdoors, late night pool games, early morning reno projects, and dog sitting.