Submitted: The Two Sides Team July 20, 2014
Ontario Divisional Court tribunal ordered Greenpeace Canada to pay $22,000 in legal costs to forest giant Resolute Forest Products.
For some time Greenpeace Canada has been mounting a campaign to bring SLAPP legislation into Canada, the idea being that the corporations should be legally discouraged from taking legal action against aggressive environmental activists.
SLAPP stands for Strategic Lawsuit Against Public Participation, a concept swallowed whole by Ontario’s Liberal government, which produced a bill that would prevent a corporation from responding to defamatory statements made by groups such as Greenpeace. The green groups, after all, are said to be acting “in the public interest” and should therefore be above the laws of defamation that might prevent them taking on private corporate interests.
Well, Greenpeace just suffered a major defeat in Ontario court that goes way beyond the narrow confines of defamation and SLAPP legislation. In a decision Tuesday, an Ontario Divisional Court tribunal ordered Greenpeace Canada to pay $22,000 in legal costs to forest giant Resolute Forest Products. The court also ordered Greenpeace “to deliver its statement of defence within 10 days of this decision.”
That should be easy for Greenpeace, since it has been dragging its heels on the Resolute lawsuit for more than a year. It’s had plenty of time to prepare a response to Resolute’s numerous allegations and claims filed in Ontario Superior Court in May 2013.
Those charges were neatly summarized in the Divisional Court’s Tuesday decision. Resolute, in its statement of claim against Greenpeace:
“… pleads causes of action in defamation, malicious falsehood and intentional interference with economic relations. It alleges that Greenpeace published defamatory articles critical of Resolute’s forestry and corporate practices and secretly disseminated them to Resolute’s customers. It is also alleges that Greenpeace has continuously and intentionally interfered with Reolute’s economic relations by threatening and intimidating its customers. Resolute seeks general damages of $5-million and punitive damages of $2-million.”
An astute reader might note that Resolute’s claims against Greenpeace Canada go way beyond the narrow business of defamation that might be covered by any prospective SLAPP legislation. If such a SLAPP law were to exist (the Ontario Liberals went to an election before their proposed bill could be passed), Greenpeace might be able to overcome charges of defamation. But SLAPP laws do not cover the other elements of the charges against Greenpeace.
In fact, Greenpeace did not challenge proceeding on the defamation allegations, perhaps because even if found guilty of defaming Resolute under current law, the ultimate penalties might be manageable. Far more serious would be the potential $5-million and $2-million penalties for having “intentionally interfered with economic relations” between Resolute and its customers.
Interfering with economic relations is a far more serious bit of wrongdoing under Canadian tort law. Greenpeace lost its first attempt to get the economic relations part of the case removed, claiming there was lack of evidence in the Resolute claims. But an Ontario Superior court judge disagreed, saying that in his view Resolute “identifies actions which constitute essential elements of the tort, namely to injure, interference with economic interests by unlawful means and a corresponding loss.”
On Tuesday the Divisional Court tribunal agreed: “The [Resolute] statement of claim adequately discloses a reasonable cause of action for intentional interference with economic relations.” The Divisional Court said “intimidation is a tort” which is actionable. Damages arise because Greenpeace “is targeting [Resolute’s] customers.” It is also alleged that “Greenpeace has threatened customers and that such threats are made with reference to previous campaigns conducted by Greenpeace and other radical ENGOS.”
Those are among the claims — contained in Resolute’s initial 37-page statement — to which the court has now given Greenpeace 10 days to file a defence. Nobody can claim to know where this case is heading, but it is certainly shaping up as precedent-setting and as a bell-weather for the future of relationships between ENGO activists and their corporate targets.
Resource companies are routinely singled out by environmental groups. Greenpeace Canada is particularly aggressive in mounting public campaigns that work the back rooms and social media.
A current target is Shell. Greenpeace Canada’s website Tuesday made no mention of its Resolute case loss. But the site does have a banner asking visitors to raise hell with toymaker Lego over its links with Shell. “Shell is using Lego to clean up its image for dirty oil drilling. Tell Lego to cut ties with Shell and save the Arctic.” Visitors are offered a chance to win a $300 gift card if they sign the anti-Lego petition. The target is 1 million signatures.
That’s mild stuff compared with what Resolute claims Greenpeace did to interfere with Resolute’s paper markets in the United States and around the world, damaging the paper giant’s business affairs. “The full scope of the damage is not yet known to Resolute,” said the company in its claim, “and particulars of same will be provided in advance of trial.”
The defamation allegation is clearly only one part of the Resolute suit. In the wake of the Divisional Court ruling, it now looks like Greenpeace Canada has 10 days to respond to the far more serious allegations related to charges that it intentionally interfered with the company’s customers, associates and stakeholders.