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Case Study - Trans Mountain Pipeline ULC v. Dutton et al.

Trans Mountain was seeking to conduct drilling work in the Burnaby Mountain Conservation Area, a protected forest in the heart of a residential suburb of Vancouver, in furtherance of a major pipeline project. Concerned citizens had been gathering in the Conservation Area for weeks to monitor the work, to express their opposition, and, in a select number of individual cases, to engage in civil disobedience by causing delays to the work.

Alan Dutton is a retired academic and was an organizer of a local residents’ group (“BROKE”) opposed to the pipeline project. Mr. Dutton had visited the Conservation Area but had not interfered with the work being conducted. His mission was to raise awareness about the project and its potential to harm the environment, and to organize people in political, peaceful protest. Mr. Dutton maintained the BROKE website and organized several public events, workshops and town halls. His name and contact information was available on the group’s website. He spoke to media on the group’s behalf.

The lawsuit was brought in BC Supreme Court against Mr. Dutton – in his personal capacity and as a representative of BROKE – for trespass, public and 3 private nuisance, assault, intimidation intentional interference with contractual relations, and conspiracy. No facts were specifically asserted against Mr. Dutton, rather, the Notice of Civil Claim made various unspecified allegations that all defendants had engaged in general tortious activity.

In January 2015, Mr. Dutton applied to dismiss the claims against him under Rule 9-°©‐5 as an abuse of process, or under Rule 9-°©‐6 as supporting no genuine issue for trial. He asserted that there was no factual foundation on which to bring the claims against him. He alleged the case was a SLAPP suit, aimed at discouraging him from his efforts to raise awareness about the environmental impact of the pipeline project and to organize people in peaceful protest. In response, Trans Mountain relied on two web postings written by other individuals, and a quote from a newspaper article in which Mr. Dutton had expressed his opinion about civil disobedience, to support its claim of conspiracy against Mr. Dutton.

In his brief oral ruling, the Honourable Mr. Justice Wong found that Mr. Dutton had failed to prove on a balance of probabilities that the lawsuit had been brought for an improper purpose. He accepted Trans Mountain’s assertion that the evidence could support a claim in conspiracy and should be allowed to proceed to trial. He ruled he was bound by the Court’s earlier finding there was a strong prima facie case against Mr. Dutton. The application was dismissed.

The lawsuit was discontinued by Trans Mountain only two weeks later, arguably signaling its purpose—sending a strong message to protesters—had been achieved. Pursuant to the Rules, Trans Mountain paid Mr. Dutton’s tariff costs, but these amounted to only a fraction of his actual legal expenses. Mr. Dutton claims the lawsuit’s toll was more than financial: it strained relationships within his group, discouraged future organizing and protest, and tarnished his personal reputation.

Arguably, Mr. Dutton’s fate would have been different had BC enacted legislation similar to Ontario’s proposed Bill 52, the Protection of Public Participation Act, 2015. Under that law, Mr. Dutton would only have been required to prove he was engaged in conduct related to a matter of public interest. At that point, the onus would have shifted to Trans Mountain to prove that its claims had substantial merit, that Mr. Dutton had no valid defence to the claims, and that the public interest weighed in favour of allowing the claims to proceed. Had Trans Mountain failed to satisfy this burden, the claims against Mr. Dutton would have been dismissed with an award of special costs, and perhaps compensatory or punitive damages.

© Copyright 2015 Environmental Defense Working Group and Burnaby Pipeline Watch