Vexatious Litigants and Climate Saviours: Resolute Forest Products v Greenpeace Canada

In 2013, Resolute Forest Products (“Resolute”) filed a $7 million claim against Greenpeace Canada for defamation and intentional interference with economic relations. While initially, Resolute attempted to bring into question the activities of Greenpeace worldwide over the past 40 years, Justice Pierce of the Ontario Superior Court noted in his 2015 ruling that if the litigation would be expanded to include the activities of Greenpeace affiliates, “there is a risk that the claim [would] be high-jacked by collateral or irrelevant issues,” and that the trial could be delayed or prejudiced with “allegations that are potentially scandalous, frivolous, or vexatious.

More recently, a similar lawsuit was filed in Texas by climate sceptic and computer engineer, Leonid Goldstein, for what he calls “climate alarmist” bodies, under US anti-racketeering legislation that is intended to combat organized crime. Goldstein has made allegations against 40 green networks and charities, including – to name a few – Greenpeace International, Friends of the Earth, World Wildlife Fund, and the Sierra Club Foundation. Leonid suggests that the “Climate Action Network” has engaged in “a long-term criminal scheme, involving a false claim that anthropogenic release (or emissions) of carbon dioxide” caused dangerous climate change, and have demanded government actions based on “this false claim, including money transfer.” Goldstein is suing for harm inflicted on him directly.

Lawsuits such as these exemplify the meritless and obvious SLAPP tactics that continue to undercut public interest work.

Not only do these suits expend the limited resources of environmental organizations (ENGOs), they are a misuse of the judicial system by corporate players to bully environmental do-gooders into submission.

A SLAPP-suit is a “strategic lawsuit against public participation” and is intended as a scare-tactic to censor, intimidate, and silence public criticism, using such ordinary civil torts claims as defamation, conspiracy, and interference with prospective economic advantage. While SLAPPs are by definition legally meritless, they often achieve their desired effect: to halt public debate on particular issues. ENGOs like Greenpeace who find themselves on the receiving end of a SLAPP must expend considerable time, money, and legal resources defending allegations, thereby detracting from the means available for pursuing future public causes.

Many corporations and wealthy individuals have deep pockets and thus the ability to bring meritless claims against organizations that are often struggling financially to survive. ENGOs are frequently the targets of multiple SLAPP suits and are thus subject to crippling legal fees defending against the frivolous allegations.

Most notable, however, is the increasing aggressiveness with which plaintiffs are using SLAPPs – and environmental groups are not the only victims.

Private citizens and local residents have similarly been subject to corporate bullying. In May of 2016, the Peace Valley Farmers and First Nations who engaged in peaceful protest of the Site C dam proposed by BC Hydro were faced with a civil lawsuit that included allegations of conspiracy, intimidation, trespass, creating a public and private nuisance, and “intentional interference with economic relations by unlawful means”. As Hugh Wilkins, former staff lawyer with Ecojustice, has noted, “These suits impede public participation in the democratic process and expose SLAPP victims to unnecessary financial and emotional costs”.

This is a chilling reminder that the law doesn’t always favour the little guy, and some legal tools are used increasingly by powerful and repeat players to gain the upper hand in public discourse surrounding hotly contested issues – such as climate change.

Fighting for important environmental initiatives is already challenging, given a lack of political will and lagging environmental laws. The opportunity for corporate abuse of the judicial system erodes democracy. If we want open discussion and diverse opinion on matters of public importance, then we need to make sure that speech on matters of public importance is neither stifled nor threatened. Corporations shouldn’t have the ability to wage war when they feel backed into a corner for their own careless behaviour. If we want a meaningful platform for open, public debate, then jurisdictions across North America currently lacking anti-SLAPP legislation need to adopt the appropriate legislative responses – and quickly.

Antonia Bosco completed a virtual placement with Greenpeace Canada

Organizations such as the Canadian Civil Liberties Association (CCLA) and Environmental Defence have stepped forward to promote freedom of expression and anti-SLAPP legislation across Canada. Similar initiatives are taking place in the United States, such as the Public Participation Project. There is need to balance the protection of public participation against reputation and economic interests. It is crucial that power be brought back to the greater part of society, and that ENGOs be able to pursue claims on behalf of public interest without the hindrance of meritless lawsuits. There should be limitations on the exercise of legal recourse by corporate players, and especially energy companies. Anti-SLAPP Bills like that enacted in Ontario should mark a trend towards greater incorporation of anti-SLAPP legislation. Let’s put a stop to this sooner than later.