If you have not been following the defamation case against Greenpeace, with a key ruling expected from a Canadian court in the coming days, now is the time to come up to speed.
The case is Resolute Forest Products Inc., et al v. 2471256 Canada Inc. d/b/a GreenPeace Canada, et al, pending in the Ontario Superior Court of Justice.
Resolute alleges in its pleadings that in 2012 Greenpeace published defamatory articles critical of Resolute’s forestry and corporate practices, even after publicly retracting its claims after Resolute threatened litigation, and secretly disseminated them to Resolute’s customers. Resolute claims that Greenpeace wrongfully informed Resolute’s customers, investors and stakeholders that Resolute improperly harvested or sourced materials in Canada’s boreal forest, and that these falsehoods caused Resolute to suffer damages. It is also alleged that Greenpeace has continuously and intentionally interfered with Resolute’s economic relations by threatening and intimidating its customers (including by example, Best Buy that stopped purchasing paper for advertising circulars). Resolute seeks general damages of $5 million and punitive damages of $2 million.
Specifically, in its amended amended response to demand for particulars, Resolute alleged that Greenpeace’s unlawful activity included:
trespass, unlawful picketing, defamation and other unlawful activities engaged in by Greenpeace and other radical ENGOs in previous campaigns. The threatened conduct serves notice upon Resolute’s customers that if they do not accede to demands to remove Resolute from their supply chain, they will be the target of unlawful activity, which is intended to cause the customers harm.
Greenpeace defended the claim in preliminary motions on the basis of truth (justification), fair comment, qualified privilege, and responsible communication. It pleaded that Greenpeace acted in good faith and provided a background to the factual allegations regarding Resolute’s sourcing and harvesting of materials in the boreal forest. And Greenpeace alleged that Resolute’s litigation constituted strategic litigation against public participation (SLAPP).
In defense of the defamation claim, Greenpeace also pleaded that Greenpeace had a “social and moral duty to investigate the forest practices of Resolute Forest Products, and to prepare and publish the [allegedly defamatory] Publications.”
Resolute filed a reply itemizing what Resolute characterized as a 40 year history of campaigns in which Greenpeace or its international affiliates engaged in “illegal and tortious conduct.” None of these allegations related to the Canadian boreal forest. Greenpeace moved to strike these objectionable portions of the reply on the grounds that they did not rebut matters raised in the defense but instead raised new claims including allegations against organizations that were not parties to the litigation. The motions judge agreed that the impugned portions of the reply expanded the proceedings, but determined that Greenpeace “had put in issue” its moral and social duty and public interest reasons for its conduct, thereby inviting a reply that expanded the scope of the litigation. In concluding thus, he dismissed Greenpeace’s motion to strike the offending portions of the reply. It is GreenPeace’s appeal from that interlocutory order that is pending.
The heart of the issue being appealed, as acknowledged by the motions judge in his ruling, is the expanded the scope of the litigation:
While Greenpeace complains it will be required to lead evidence or respond to evidence in regard to seven other campaigns alleged to be sensational and twenty-two other campaigns where tortious or illegal conduct is alleged, I expect proof of Greenpeace’s allegation of its “moral or social duty” upon which it relies in its defence will require reference to particular matters that arise outside of the particular matters complained of by Resolute. This may require the entire litigation to take on a very broad area of inquiry….
It is anticipated that the Canadian court will soon rule on the matter appealed which could set in motion “a comprehensive review of the activities of Greenpeace world-wide over a period of forty years.”
This blog will continue to monitor this rare case where a single business has taken on a global environmental organization in the courts.