CITATION: Resolute Forest Products Inc. et al. v. 2471256 Canada Inc. DBA Greenpeace Canada et al, 2014 ONSC 3996
DIVISIONAL COURT FILE NO.: DC-14-001
DATE: 2014-07-15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, KITELEY, HARVISON YOUNG JJ.
BETWEEN:
RESOLUTE FOREST PRODUCTS INC., RESOLUTE FP US INC., FIBREK GENERAL PARTNERSHIP, FIBREK U.S. INC., FIBREK INTERNATIONAL INC. and RESOLUTE FP CANADA INC.
Plaintiffs (Respondents)
– and –
2471256 CANADA INC. DBA GREENPEACE CANADA, RICHARD BROOKS and SHANE MOFFATT.
Defendants (Appellants)
Arthur Hamilton and Colin Pendrith, for the Plaintiffs (Respondents)
Jordan Goldblatt, for the Defendants (Appellants)
HEARD: at Thunder Bay June 24, 2014
NATURE OF APPEAL
[1] This is an appeal, pursuant to leave, by the appellants (collectively “Greenpeace”), from the order of Fitzpatrick J. dismissing Greenpeace’s Rule 21.01(1)(b) motion to strike the respondents’ (collectively, “Resolute”) claim for intentional interference with economic relations as disclosing no reasonable cause of action.
PROCEDURAL BACKGROUND
[2] The statement of claim 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 Resolute’s economic relations by threatening and intimidating its customers. Resolute seeks general damages of $5 million and punitive damages of $2 million.
[3] Pursuant to a Demand for Particulars made by Greenpeace, Resolute delivered an Amended Response to Demand for Particulars which was before the Motions Judge.
[4] Greenpeace’s motion pursuant to Rule 21.01(1)(b) was to strike only those parts of the claim alleging intentional interference with economic relations.
[5] After this appeal was launched, Resolute delivered a further Amended Amended Response to Demand for Particulars and now asserts that the appeal is moot and should be quashed because even if it had not been clear before, the additional particulars demonstrates that its claim for intentional interference of economic relations is certainly a viable one.
[6] On this appeal, Greenpeace submits that the new particulars in the Amended Amended Response to Demand for Particulars are not properly before this Court, and in any event, do not make the appeal moot.
THE STATEMENT OF CLAIM
[7] The allegations pertaining to intentional interference with economic relations are set out in paragraphs 76-81 and 84(d) of the statement of claim as follows:
The defendants interfere with customers, investors and stakeholders
The defendants sent targeted communications to Resolute’s customers, investors and stakeholders that were and remain defamatory and purposely injurious. In particular, and most recently, the defendants have widely distributed the Unsustainability Report to Resolute’s customers, investors and stakeholders for maximum penetration and impact. The defendants also sent to Resolute’s customers, investors and stakeholders, some or all of the other defamatory publications referred to herein. The defendants have engaged in this conduct maliciously and for the purpose of harming Resolute’s business, goodwill and reputation.
With respect to Resolute’s customers, the defendants have written defamatory letters and emails about Resolute directly to customers and have demanded meetings with customers in an attempt to influence their procurement policies. The defendants have targeted Resolute’s customers widely in Canada, the United States and Europe. The defendants were and are attempting to harass, intimidate and otherwise exert pressure on Resolute’s customers as a means of damaging Resolute.
The defendants have also targeted Resolute’s stakeholders, including the signatories to the Canadian Boreal Forest Agreement (“CBFA”). These stakeholders include members of the Forest Products Association of Canada and other Environmental Non-Government Organizations. The defendants disseminated the Unsustainability Report and other defamatory publications to the CBFA signatories for the purpose of damaging Resolute’s reputation and undermining Resolute’s participation in the CBFA.
The defendants’ malicious and defamatory actions have caused and continue to cause damage to Resolute’s business and its reputation with its numerous stakeholders, which include but are not limited to customers, investors, suppliers, First Nations groups, employees, unions, members of government, CBFA signatories and communities in Ontario’s and Québec’s North.
Intentional interference with economic relations
The defendants, individually and in concert with one another, have secretly disseminated the Unsustainability Report and other defamatory publications to Resolute’s customers. In addition to disseminating these defamatory publications, the defendants have continuously and intentionally interfered with Resolute’s economic relations by threatening and intimidating Resolute’s customers.
Due to the surreptitious nature of the defendants’ threats and intimidation, the full extent of which is known by the defendants but not Resolute, full particulars of the interference with Resolute’s economic relations will be provided at trial. However, Resolute states that:
(a) the defendants have acted maliciously and in bad faith by interfering with its customers and that the defendants’ actions were and are calculated to disparage and injure Resolute;
(b) the defendants have interfered with Resolute’s economic relations by unlawful means, and in particular, by threatening and intimidating Resolute’s customers; and
(c) Resolute has and continues to suffer economic and reputational loss as a result of the defendants’ unlawful interference.
- The defendants have engaged in a continuing and concerted course of deceptive and malicious conduct, all in an attempt to threaten, intimidate and harm Resolute. More particularly, the defendants have:
(d) Harassed, intimidated and otherwise exerted pressure on Resolute’s customers and investors as a means of damaging Resolute;
POSITION OF GREENPEACE
[8] Greenpeace submits that the Motions Judge erred in law in concluding that Resolute has pleaded its claim of intentional interference with economic relations in a way sufficient to disclose that cause of action. It submits that the claim does not set out all the material facts necessary to establish that cause of action, specifically:
(a) Resolute’s claim does not allege unlawful conduct on the part of Greenpeace other than defamation. It does not set out unlawful conduct directed at Resolute’s customers which would form the basis of a claim by them against Greenpeace;
(b) The claim fails to identify specific third parties who were subjected to any unlawful conduct;
(c) The claim fails to set out any specifics as to the damages incurred by Resolute, i.e., what the loss is and how it was sustained.
TEST UNDER R. 21.01(1)(b)
[9] The parties agree that the proper test on a Rule 21.01(1)(b) motion is whether it is plain and obvious that the statement of claim discloses no reasonable cause of action.
[10] The allegations contained in the statement of claim must be taken as true or capable of being proven, for the purposes of the motion.
THE TORT OF INTENTIONAL INTERFERENCE WITH ECONOMIC RELATIONS
[11] The elements of this tort are:
(1) An intent to injure and cause loss to the plaintiff;
(2) Interference with the plaintiff’s business or livelihood by illegal or unlawful means;
(3) The unlawful means are directed at a third party who has an actionable claim or an actionable claim but for the absence of having suffered a loss; and
(4) The plaintiff suffers economic loss as a result of the unlawful means.
[12] Greenpeace’s position is that there has been a failure to set out the material facts when alleging the commission of an intentional tort. It argues that the plaintiff is required by reason of Rule 25.06(8) to set out “full particulars” of the claim.
[13] The issue thus becomes whether Resolute in its statement of claim has asserted a legally sufficient or substantively adequate claim such that one cannot say that it is plain and obvious that no reasonable cause of action for intentional interference with economic relations has been disclosed.
GUIDING PRINCIPLES
[14] The following principles have guided our decision on this appeal:
(1) The words of the statement of claim relating to the cause of action in question should be read generously in favour of a plaintiff so as not to unfairly deny that party the benefit of the pleading. This is particularly so with the tort of intentional interference with economic relations, having regard to Cromwell J.’s comment in A.I. Enterprises Ltd. v. Brown Enterprises Ltd. 2014 SCC 12 [A.I. Enterprises] at para. 2, that the scope of this tort has been unsettled;
(2) Rule 25.06(8) states that full particulars are required when “fraud, misrepresentation, breach of trust, malice or intent is alleged”. Its purpose is to ensure that bald allegations of this nature, totally devoid of any detail, should not be permitted even at this early stage of the action. However, the rule was never meant to stand in the place of discovery but only to ensure that a defendant knows the case to meet with respect to such allegations and is able to plead over. In our view, “full” means sufficient material facts to permit a defendant to respond in a meaningful way at the pleading stage;
(3) The “plain and obvious” test sets a high hurdle for a Rule 21.01(1)(b) motion to be successful. It is only in the clearest of cases – where a claim is certain to fail – that a claim should be struck out;
(4) Rule 1.04(1) sets out the general principle that should be taken into account in interpreting and applying the Rules of Practice. It provides that “these rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Thus, Rule 21 motions should not become a battle ground for highly technical complaints about the form of pleadings for solely tactical reasons to preclude issues from being heard on their merits.
(5) Parties should not be faced with procedural motions right out of the litigation gate which only serve to frustrate the advancement of the litigation and result in the building up of unnecessary costs and delay. The purpose of a statement of claim is essentially to frame the issues in controversy and set out the material facts of the claim to allow a defendant to respond by way of a statement of defence. The recent emphasis on access to justice (see for example, Hyrniak v. Mauldin, 2014 SCC 7 at para. 23-24 in respect of Rule 20 motions) supports the view that parties and counsel should engage less in disputing pleading details and move as expeditiously and as cost effectively as possible to a resolution on the merits.
(6) The Supreme Court of Canada in A.I. Enterprises, at paras. 77-82, has stated that a defamation claim and an intentional interference with economic relations claim can be concurrently asserted in respect of the same incident. In the instant case, the underlying facts which support Resolute’s defamation allegation and its claim for punitive damages, are similar in substance as the facts in relation to its claim for intentional interference with economic relations. There would be little or no savings of costs or judicial economy to sever the claim for intentional interference with economic relations from the defamation claim.
DISPOSITION
[15] In this case, it became clear in argument rather quickly that the issue before us was not a complaint about the failure to plead the constituent elements of the tort, but rather whether sufficient particularity has been given.
[16] We are of the view that the statement of claim and the Amended Response to Demand for Particulars have provided enough particulars of “the when, the what, by whom and to whom of the relevant circumstances” (Balaryk v. University of Toronto, [1999] O.J. No. 2162 at para. 28) to permit Greenpeace to respond. Greenpeace has not filed any affidavit to suggest that it needs any further particulars to do so.
[17] The specific complaints of Greenpeace are that:
(1) There is no allegation of unlawful conduct;
(2) No allegation of actionable conduct against a third party;
(3) An inadequate plea of damages.
[18] The answer to these complaints is:
(1) The alleged unlawfulness is the intimidation of customers and the use of defamation as part of such intimidation;
(2) Intimidation is a tort and constitutes conduct against a third party which is actionable by that party. The intimidation is designed to have customers refrain or alter their business relations with Resolute. The Amended Response to Demand for Particulars alleges that customers were contacted to cause them to remove Resolute as a supplier in their supply chain;
(3) Resolute’s damages arise because Greenpeace is targeting its customers. Common sense would suggest that such conduct could disparage Resolute’s reputation and cause it loss of business. It is specifically alleged that Greenpeace has surreptitiously communicated with Resolute’s customers and demanded meetings with them. 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. Greenpeace is therefore in possession of sufficient information about these matters and would know generally what customers Resolute is alluding to so as to permit a response in a statement of defence.
[19] In any event, discovery still serves a purpose in litigation. Greenpeace can readily obtain during the discovery process further information about the names of the customers, the effect on them and their response.
[20] For these reasons, we conclude that Fitzpatrick J. correctly held at para. 22 of his decision:
In my view, this pleading identifies actions which constitute essential elements of the tort namely intent to injure, interference with economic interests by unlawful means and a corresponding loss. It is alleged that the defendants have intimidated (an unlawful means) a third party (Resolute customers) in an attempt to harm Resolute.
[21] The statement of claim adequately discloses a reasonable cause of action for intentional interference with economic relations. The appeal is dismissed; it therefore becomes unnecessary to consider Resolute’s motion to quash the appeal. Greenpeace is to deliver its statement of defence within 10 days of this decision.
[22] Counsel have agreed that the total costs of the proceedings be fixed at $20,000, all inclusive. Accordingly, Greenpeace is to pay Resolute that amount within 30 days.
Lederman J.
Kiteley J.
Harvison Young J.
Released: July 15, 2014
CITATION: Resolute v. Greenpeace, 2014 ONSC 3996
DIVISIONAL COURT FILE NO.: DC-14-001
DATE: 2014-07-15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, KITELEY, HARVISON YOUNG JJ.
BETWEEN:
RESOLUTE FOREST PRODUCTS INC., RESOLUTE FP US INC., FIBREK GENERAL PARTNERSHIP, FIBREK U.S. INC., FIBREK INTERNATIONAL INC. and RESOLUTE FP CANADA INC.
Plaintiffs (Respondents)
– and –
2471256 CANADA INC. DBA GREENPEACE CANADA, RICHARD BROOKS and SHANE MOFFATT.
Defendants (Appellants)
REASONS FOR JUDGMENT
Lederman J.
Released: July 15, 2014