Canada: Well SLAPP Me Silly! Resolute Forest Products vs. Greenpeace

"'Greenpeace' is a global fraud." So begin the allegations in the colourful preliminary statement of the Complaint filed in 2016 in the U.S. District Court in Georgia on behalf of Resolute Forest Products, Inc. in a $300 million anti-racketeering action against Greenpeace International and others. This followed the commencement by Resolute of an action against Greenpeace Canada in 2013 in the Ontario Superior Court of Justice.  The (kinder, gentler) Canadian Statement of Claim seeks $7 million in general and punitive damages for "defamation, malicious falsehood and intentional interference with economic relations".

This all started with a very public 2012 campaign by Greenpeace Canada against Resolute's forestry practices in Canada. Among other things, Greenpeace Canada's publications alleged that Resolute was in breach of its environmental protection obligations. Resolute presented its facts to Greenpeace Canada, and obtained a retraction and apology. According to Resolute's claim, that did not stop Greenpeace Canada from continuing its campaign. Resolute alleges that it suffered direct losses due to Greenpeace Canada contacting its customers to pressure them to stop buying fibre from Resolute.

In its Statement of Defence and on-line, Greenpeace Canada describes Resolute's action as a SLAPP (an acronym for "strategic litigation against public participation") action. SLAPP is used to describe a court action, or threatened action, that is intended to pressure or intimidate critics, especially public interest groups. In its U.S. defence, Greenpeace International describes some of the allegedly defamatory statements as being merely "criticism and heated rhetoric" or made without intending to be strictly literal or scientifically precise.

Ontario and Quebec both have what have come to be known as "anti-SLAPP laws". These are procedural protections intended to protect those who participate in legitimate public protest or discourse from frivolous law suits designed to stifle opposition. British Columbia had such a law on its books, but it lasted less than a year before it was repealed.  It should be noted that anti-SLAPP laws in Canada protect "expression" in the context of communication, not things like blockades or property damage.

In October of 2015 Ontario passed the Public Participation Act.  It amended the Court of Justice Act to create a new section 137.1, which allows a party to apply to the Court to protect itself against an alleged SLAPP.  After hearing an anti-SLAPP motion, the judge may dismiss the claimant's court action against a person if the judge is satisfied, on the evidence, that "the proceeding arises from an expression made by the person that relates to a matter of public interest".  Merely making an anti-SLAPP motion freezes the court proceedings until the motion is dealt with.

Under the Ontario law a judge cannot dismiss the claimant's action if the claimant is able to demonstrate to the Court grounds to believe that: the proceeding has substantial merit; and the defendant has no valid defence in the proceeding. The judge also has to be convinced that the harm suffered by the claimant (or likely to be suffered) is serious enough such that allowing the court proceeding to continue outweighs the public interest in protecting the expression that gives rise to the claim. The stakes are higher than the typical motion – – – an unsuccessful claimant will be responsible for all of the successful defendant's legal costs. The cost consequence alone should give pause to anyone considering even a legitimate claim arising out of someone else's expression if there is a public interest argument.

These criteria go beyond the Court's traditional jurisdiction to control abuse of process. Depending on how they are interpreted, they could pose a significant barrier to otherwise legitimate defamation claims. On the plus side, the Ontario law requires an expeditious hearing (likewise on any appeal).

Despite Greenpeace Canada's public position and its characterization of the Resolute claim in its statement of defence, Ontario's anti-SLAPP legislation is not retroactive and does not apply to the case. In a 2016 decision of the Ontario Divisional Court on a procedural matter, the Court questioned the appearance of these anti-SLAPP arguments in the Greenpeace Canada defence, but also noted that Resolute did not seek to strike them out.

So far, the experience in Ontario on the use of the anti-SLAPP law is limited. In October, 2016, the Toronto Star reported that two motions were in the works; one a defamation claim by a former municipal council member against an individual who, among other things, likened the councillor to Snoop Dogg; another a defamation claim by an unsuccessful candidate for Parliament against a freelance journalist/blogger.

The Canadian Civil Liberties Association cites Quebec cases in which section 54.1 of the Quebec Code of Civil Procedure has been successfully applied by defendants in court actions. Several involve citizens who were publicly critical of businesses engaged with government. On the natural resources side, a $350,000 defamation action brought by Pétrolia Inc. against a spokesperson of an anti-mining coalition who was critical of Quebec policy that suspended royalty payments during the exploration phase was dismissed as an abuse of the court process.

All courts have the ability to control cases that they consider to be an abuse of process. The courts have also encouraged disposition of matters at a preliminary stage through summary judgement, where one party is able to establish that there is no significant issue for trial.

The Resolute action is worth following for more than just its entertainment value. The case has the potential to test the rules for determining the boundaries between legitimate public discourse and the liability of the disseminators of information for damages when making defamatory statements. It may also have an impact on courts and legislatures in other provinces that do not yet have anti-SLAPP legislation. Stay tuned. In the meantime, if you are contemplating taking a court action against a troublesome opponent, carefully consider the range of possible outcomes. If the opponents believe that they are being subjected to SLAPP, they might do more than just turn the other cheek.

This article was written for, and published in Mid-Canada Forestry and Mining magazine and is reproduced with permission.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions