ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-0164
DATE: 2015-09-29
B E T W E E N:
Resolute Forest Products Inc., Resolute FP US Inc, Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc. and Resolute FP Canada Inc.
Arthur Hamilton and Colin Pendrith, for the Plaintiff /Responding Parties
Plaintiff /Responding Parties
- and -
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt
Steven Shrybman and Jordon Goldblatt, for the Defendants/Moving Parties
Defendants/Moving Parties
HEARD: by Written Submissions,
at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Motion for Leave to Appeal
Introduction
[1] Resolute claims against Greenpeace for defamation, malicious falsehood and intentional interference with economic relations. It alleges that Greenpeace informed its customers, investors and stakeholders that Resolute improperly harvested or sourced materials in Canada’s boreal forest, and that these allegations caused Resolute to suffer damages.
[2] 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.
[3] Neither the claim nor the amended amended response to demand for particulars suggested that “other radical ENGOs,” were Greenpeace affiliates, or that any conduct complained of took place internationally. The claim did not seek relief for conduct that pre-dated December, 2012 or that occurred outside of Canada. The plaintiff’s dispute is grounded in Greenpeace’s activity related to the Canadian boreal forest.
[4] Greenpeace defended the claim 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. Greenpeace alleged that Resolute’s litigation constituted strategic litigation against public participation (SLAPP).
[5] In defence 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.”
[6] Resolute filed a reply. The reply itemized 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.
[7] Greenpeace moved to strike out these objectionable portions of the reply on the grounds that they did not rebut matters raised in the defence but instead raised new claims including allegations against organizations that were not parties to the litigation. As well, Greenpeace argued that the objectionable paragraphs in the reply would prejudice or delay the fair trial of the action or alternatively, that they were scandalous, frivolous or vexatious, as described in Rule 25.11 (a) and (b).
[8] 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 out the offending portions of the reply.
Grounds for Seeking Leave to Appeal
[9] The test for leave to appeal an interlocutory order of the Superior Court is found at Rule 62.02(4) of the Rules of Civil Procedure, which states:
Leave to appeal shall not be granted unless,
a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[10] Greenpeace seeks leave to appeal based on both grounds.
Discussion
[11] Counsel agree that the right to deliver a reply is a “qualified right:” Brigatis v. ICQ Ltd., [2012] O.J. No. 5458 (S.C.J.), para. 43. As the motions judge noted, the right of reply is limited by Rule 25.08 to the following circumstances:
where a party intends to prove a version of facts different than that pleaded in the statement of defence, it shall deliver a reply setting out the different version unless it has already been pleaded in the claim; or
on any matter that might, if not specifically pleaded , take the opposing party by surprise or raise an issue that has not been raised by a previous pleading, subject to subrule 25.06(5).
[12] In my respectful view, there is good reason to doubt the correctness of the order, and the proposed appeal involves matters of such importance that leave to appeal should be granted.
[13] The motions judge acknowledged that the reply expanded the scope of the litigation. At para. 23 of his reasons, he stated:
I agree that while the Reply appears at first blush to be expansive, it is necessarily so because of the manner Greenpeace has characterized its actions.
[14] The difficulty with the ruling is found in the reasons themselves, also at para. 23, which state:
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….
[15] In my view, the defence of qualified privilege does not extend to a comprehensive review of the activities of Greenpeace world-wide over a period of forty years. That is what will be involved if the reply stands. The claim itself does not take issue with the activities of Greenpeace’s affiliates in other countries. The reply should not be used to expand the scope of the litigation, once the statement of defence has been delivered. Rather it should be limited to Greenpeace’s activities concerning Resolute in Canada’s boreal forest, as originally pleaded in the statement of claim. The scope of the litigation should be limited to that sphere.
[16] If the litigation is expanded as contemplated by the reply, there is a risk that the claim will be high-jacked by collateral or irrelevant issues. The trial of the action could be prejudiced or delayed with allegations that are potentially scandalous, frivolous or vexatious, contrary to Rule 25.11 (a) and (b).
[17] In my view, the scope of a reply pleading that raises new issues is of such importance, not only to these parties, but to the legal community, that leave to appeal should be granted. Judicial time is a finite resource. Costs of litigation are escalating, to the point where access to justice is an oft-cited concern. Accordingly, pleading of claims should be limited to the facts in dispute, so that unnecessary costs are not incurred in preparing the case for trial and unnecessary time is not taken to try the case.
[18] Leave to appeal is granted. Having granted leave on the foregoing grounds, it is not necessary to deal with the remaining grounds.
[19] Costs of the motion for leave are reserved to the panel hearing the appeal.
“original signed by”_
Madam Justice H.M. Pierce
Released: September 29, 2015
ONSC 6043
COURT FILE NO.: CV-13-0164
DATE: 2015-09-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Resolute Forest Products Inc., Resolute FP US Inc, Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc. and Resolute FP Canada Inc.
Plaintiffs/Moving Parties
- and -
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt
Defendants/Moving Parties
REASONS ON MOTION
FOR LEAVE TO APPEAL
Pierce J.
Released: September 29, 2015
/cs