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Getting Sued for Speaking Out

Trans Mountain Pipeline ULC, a subsidiary of the giant transnational oil company Kinder Morgan, applied for and was granted an injunction in October 2014 to stop rallies and demonstrations on Burnaby Mountain Conservation Land. Trans Mountain alleged damages associated with the rallies of $5.6 million and five people were named in the lawsuit along with Jane and John Doe and the Burnaby Residents Opposing Kinder Morgan (BROKE) - a community non-profit group.

Alan Dutton was one of the five defendants and was sued personally and as a representative of the non-profit. Trans Mountain alleged that Dutton was involved in a conspiracy to commit various torts to prevent Trans Mountain from clear cutting in the Conservation Land to perform geotechnical work.

Trans Mountain did not submit any evidence against BROKE, but did submit two quotations from BROKE's website and a quote by Dutton from the Burnaby Now, a local community newspaper. Neil Chantler of Chantler and Company defended Dutton and the non-profit and provides the following summary of the case as follows.

"On September 26, 2014, the BC Supreme Court denied the City of Burnaby the right to appeal the decision of the NEB to allow Kinder Morgan to undertake survey work and test drilling on Burnaby Mountain Conservation Land. The decision infuriated residents, environmental, church and many other groups and they began demonstrating against the work on the mountain. Kinder Morgan responded by filing a $5.6-million civil suit against five people for speaking out and allegedly interfering with contractual relations.

"The media quickly identified the civil suit as a SLAPP suit, or strategic litigation against public participation. SLAPP suits have become common throughout North America, including the province of British Columbia, and are causing havoc among many types of groups. SLAPP suits generally lack merit and are not likely to succeed in court. Instead the goal of a SLAPP suit is not generally to win, but to silence critics. SLAPP suits tie up resources, drain resources, divide groups and may also dissuade others from speaking out and excising their own rights to express themselves.

"When it became apparent that Kinder Morgan was loosing the publicity war against the defendants, the transnational offered the defendants a “discontinuance.” Two jumped at the offer and accepted. A discontinuance, however, is not a settlement and does not end the civil suit, or result in the corporation paying for court costs. The allegations against the defendants stand. As a result, three of the defendants refused the demands to settle. Alan Dutton took Kinder Morgan back to court claiming that the civil suit was, in fact, a SLAPP suit and claiming damages. Dutton lost the case and Kinder Morgan issued a unilateral discontinuance against the three remaining defendants, resulting in a liability for Kinder Morgan to pay a portion of the mounting court costs.

"The experience of days in court and the injustice of the court system resulted in Dutton mounting a provincial campaign for law reform against SLAPP suits. West Coast Environmental Law has provided two grants to Dutton to hire a legal research team for law reform and Dutton is working with groups to petition the provincial government for change to protect Charter rights that are under attack from corporations that are able to use the legal system to suppress Charter rights." (Chantler, 2015)

One important lesson we draw from this case is the importance of media attention and public support. The media and continued public support can have a dramatic and positive effect on the outcome of a SLAPP suit for defendants and the community for both the short and long term. More about communication strategy can be found here. Clearly, Kinder Morgan did not anticipate the negative effect of the lawsuit on public attitudes and the planned expansion through Burnaby. As the oil strategy journal, Alberta Oil, argued:

"…as the public reaction to Kinder Morgan’s suit shows, energy companies should use their legal recourse in the courts – however it might be defined – with both caution and restraint. Both Coleman and Cowan say that companies should carefully consider the optics of engaging in a suit against a critic rather than engaging with critics in an open dialogue. To the public, a case that is dismissed as a SLAPP is often seen as an attempt by a company to gag a small, independent critic. Public support tends to fall with the oppressed – whether the oppression is perceived or real." (Alberta Oil, April 2015)

A second lesson repeated throughout the history of SLAPP suits actual evidence plays a minor role in how long the SLAPP suit stays before a court or how much it costs to defend against a SLAPP suit. As Chantler notes, there was no evidence presented by Trans Mountain that directly linked Dutton, or any other members of BROKE, to any activity that violated the law, or that Dutton supported any activity that interfered with Trans Mountain's lawful activity. In fact, Dutton and BROKE were on record arguing for planning and coordination so that Burnaby bylaws would not be broken and that all protestors would respect the law.

Nothing Dutton said or did encouraged or incited any unlawful activity, but his statements were taken out of context and considered as prima facie evidence of a conspiracy to commit illegal acts. As Justice Cullen decided, "… given the utterance of Mr. Collis and to a lesser extent [emphasis added] Mr. Dutton and Ms. Quarmby, a court reasonably could conclude that there was a concerted and coordinated effort to thwart the plaintiff’s representatives from performing their duties on behalf of the plaintiff through the use of the unlawful means which are pleaded. In my view, the circumstances at bar reach the level of a strong prima facie case in view of all of the evidence.”

The lack of evidence of any unlawful act resulted in widespread criticism of the courts decision. The Burnaby Now, for example, warned that merely by being present at the site of a crime could now be considered prima facie evidence of illegal activity by the courts. Summarizing the issue, a Burnaby Now editorial titled "Alan Dutton's case raises alarming questions" noted,

"... Kinder Morgan made collective allegations about a group of protesters on the mountain and named Dutton, along with the four others, because he [Dutton] was easy to identify… We understand civil suits like Kinder Morgan's are often brought forward while seeking an injunction, and Ian Anderson, president of Kinder Morgan Canada, said he wouldn't pursue the case if the company got its work done. But the fact you can sue a group of people, claim millions in damages and blame a few in the crowd for the acts committed by the whole is alarming... What happens if you are at a protest and someone throws a brick through a window? Could you be sued because you're an easy face to pick out of the crowd? Dutton took this case on to stand up for freedom of expression and the right to protest, but the judge's decision raises serious questions about how we can exercise those rights." (Burnaby Now, January 15 2014)

Justice Cullen did address the issue of freedom of expression versus illegal activity referencing Greenpeace Canada Ltd. v. MacMillan Bloedel Ltd. (1994) but dismissed the issue of freedom of expression protected by the Charter of Rights and Freedoms in favour of the right of Kinder Morgan to leave so-called "private matters" to be tried in court. Justice Cullen's ruling was clearly based on Trans Mountain's characterization of the protests on Burnaby Mountain as a unified expression of one group’s goals, planning and strategy. Dutton was found guilty simply by association, despite serious questions about the evidence against him and others.

To challenge Justice Cullen's ruling, Dutton filed an application for a summary judgment under Rule 9-6 to dismiss Trans Mountain's claim of his alleged participation in a conspiracy to obstruct Trans Mountain's work. Dutton argued that Kinder Morgan's claim was launched for an improper purpose (In other words a SLAPP) to stifle Dutton's Charter right to express his views in protest over Trans Mountain's destruction of the environment on formerly protected Burnaby Mountain Conservation Land.(3) However, Justice Wong disagreed with the application to dismiss and accepted Trans Mountain's argument of conspiracy based on the characterization of the groups organizing and protesting on Burnaby Mountain by Trans Mountain.

Justice Wong ruled that Kinder Morgan's intention was not to silence and interfere with Dutton, but was only to further surveying and drilling work and that Justice Cullen’s interlocutory injunction issued two weeks after the lawsuit was launched put an end to the protesters’ obstruction but still allowed, within limits, protesting by the defendants. Following Justice Cullen’s decision, Justice Wong ruled that there was a strong prima facie case of conspiracy to obstruct against the named defendants, including Mr. Dutton. (Trans Mountain Pipeline ULC v. Gold, 2014 BCSC 242)

Justice Wong also noted that after the exploratory work was completed Trans Mountain announced that it was not going to pursue its civil claim against Mr. Dutton and the other named defendants for economic loss and/or damages. Justice Wong ruled that the matter of costs to Trans Mountain by Dutton was to be decided later. Trans Mountain argued that the only reason for costs to be claimed would be to motivate Dutton to accept a "discontinuance" which Dutton had previously rejected. Dutton was intent on bringing the matter to court for a hearing on the evidence and a true resolution. Trans Mountain then issued a "unilateral discontinuance" when Gold, Neisan and Dutton refused to agree to a settlement that Collis and Quarmby earlier accepted. (Collis and Quarmby had accepted Trans Mountain's offer of a discontinuance without costs, apology or a final settlement). The unilateral discontinuance did force the giant oil company under court rules to pay part of Dutton's court costs, thus avoiding a trial on the evidence.

As Chantler notes above, however, the discontinuance does not end or settle the case at all. Trans Mountain is free to continue with charges as it sees fit at any time in the future. As a result, all of the defendants may suffer consequences when applying for bank loans, crossing international borders, applying for work through loss of reputation. The discontinuance also prevents further challenges to Trans Mountain’s civil suit by Dutton who noted that he planned to appeal. The only door open to Dutton to clear his name is to sue Trans Mountain for defamation.(4)

The third lesson to take away from all this is that not everyone, and not every organization, is prepared or able to defend themselves or others they are responsible for. It is not just the financial costs which can be absurdly expensive, but the psychological stress of a massive lawsuit. In the case of Kinder Morgan's lawsuit and as noted by Neil Chantler above, two accepted a discontinuance which amounted to little more than holding the suit in abeyance: there is no final settlement and no penalty for laying a meritless lawsuit. The costs are borne by the defendants and their supporters. The three that would not accept a discontinuance continued and won the war in the media and finally forced Kinder Morgan to issue a unilateral discontinuance which stopped the three defendants from further direct court action. In the case of Dutton, Kinder Morgan was forced to pay part of the direct court costs as a result of the unilateral discontinuance. Nevertheless, Dutton is proceeding with a campaign to stop SLAPP suits and may take the case to an international court and/or sue Kinder Morgan for defamation. The point of the campaign is to draw attention to the attack by corporations on fundamental human rights and democracy itself. This is obviously not a trivial matter and requires bored based support from those capable of providing support. Not everyone can provide that support or work together to stop the attack on Charter Rights and Freedoms as we saw in the case of Dutton v. Kinder Morgan.

Finally, there is some debate about the characterization of Trans Mountain's civil suit as a SLAPP suit. Clearly, the case of Trans Mountain v. Dutton reveals many of the main characteristics of a SLAPP suit; there were no proven illegal acts committed by Dutton and the evidence presented of a conspiracy was circumstantial at best, if not defamatory. The only evidence presented by Trans Mountain and cited by Justice Cullen was from a BROKE website managed by Dutton and there was no proof of who posted the statements or in what context they were presented and a quote from a local newspaper which stated a personal opinion. Further, Trans Mountain did not take the case against Dutton to trial but forced a "unilateral discontinuance" with costs when media attention turned ugly against Trans Mountain. Clearly, the case against Dutton would likely not have succeeded at trial. While it was impossible to prove that Trans Mountain intended an improper purpose, the effect of the case against Dutton created a "chill" effect throughout the community and stopped ordinary residents of Burnaby, as well as many others, from attending and observing the destruction of areas of the Burnaby Conservation Land - land formerly protected by City bylaws - and on unceded Coast Salish territory. Finally, the SLAPP divided groups as people became afraid they would be dragged into Trans Mountain's civil suit. Whatever was intended, however, is not the problem. The effect was to damage public participation in an important environmental matter affecting many thousands of people for generations to come.