COURT FILE NO.: CV-13-0164-00
DATE: 2023-08-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc. and Resolute FP Canada Inc., Plaintiffs
vs.
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt, Defendants
HEARD: August 9, 2023, via teleconference
BEFORE: Fitzpatrick J.
COUNSEL: L. Livingstone, for Resolute O. Eng, for Greenpeace
Endorsement on Refusal Motion
[1] This was a refusals motion in a complex commercial defamation action. I have case managed this matter since it was commenced in 2013. I have written many decisions in the matter. A recitation of the background is unnecessary for this endorsement on this interim motion.
[2] The Court thanks counsel for their efforts in streamlining matters and focusing on a particular subset of the questions refused as a way of assisting in a timely resolution of this interim question.
[3] The 17 page chart prepared for the purposes of this motion was extremely useful to the Court. The questions can be categorized broadly into two types. The first, numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 24, 25, 26, 27, 28, 42, 53, 54 relate to questions about civil disobedience in past Greenpeace campaigns. The second, numbers 13, 52, 61, 62, 63 and 77 relate to specific actions in campaigns other than the Boreal campaign against Resolute.
[4] Resolute argues that the questions are relevant as they are particularized in the pleadings, specifically in the amended amended statement of claim and relate to threats from past campaigns that played a role in the Boreal campaign. Greenpeace argues the matter has been settled by a decision of the Divisional Court in 2016 ONSC 5398 (“the Div Ct Decision”), which by striking certain reply pleadings served to define the scope of relevance in the action.
[5] I agree with the submissions of counsel for Greenpeace that all questions set out in the chart were properly refused. I agree with the submission of Greenpeace that the Div Ct Decision did clearly identify and determine that the issue of past campaigns of Greenpeace were irrelevant to this action. It follows that question such as those which were the subject of this motion were properly refused as being irrelevant. Among other things the questions seek answers regarding matters that are in the nature of similar fact evidence which was identified as a problem in the Div Ct Decision at paragraph 69. I agree with this characterization. The litigation is about what happened starting in late 2012. It appears from the submissions of the parties that many of the questions related to campaigns that occurred well before that time and targeted other companies. The focus of the questions at issue were broadly Greenpeace’s acts of civil disobedience on other occasions. The attempts by Resolute to bring these “similar facts” to bear in the litigation was clearly before the Divisional Court panel determining the issue in the Div Ct Decision. At para. 71 Corbett J. for the panel wrote:
[71] Resolute pleads, in several places, that the international Greenpeace organization, its constituent entities and the defendant Greenpeace, endorse and use civil disobedience in their advocacy efforts. Assuming this allegation to be true, it has nothing to do with whether Greenpeace published the impugned statements, whether the impugned statements are defamatory and whether Greenpeace has a defence for publishing them. These pleadings seem to suggest that because Greenpeace has been, at times, prepared to break the law, it is somehow not entitled to the benefit of the law in this proceeding. If that is the thrust of these allegations, then they are utterly without merit.
[6] I also think the broad scope of the matters being pursued by the questions refused would also pose additional problems for a jury if the matter continues as projected. I find there is merit in the proportionality argument of Greenpeace on this motion and that this too was a proper basis to refuse the questions asked.
[7] For these reasons the motion is dismissed. In my view this endorsement should provide the necessary guidance to the parties that a further attendance with respect to any other questions previously refused is unnecessary.
[8] The parties provided costs outlines. As the motion was dismissed the responding party Greenpeace is entitled to partial indemnity costs in respect of this motion. Resolute shall pay Greenpeace costs fixed in the amount of $14,000.00 inclusive of HST and disbursements forthwith.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Date: August 11, 2023
COURT FILE NO.: CV-13-0164-00
DATE: 2023-08-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc. and Resolute FP Canada Inc., Plaintiffs
vs.
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt, Defendants
HEARD: August 9, 2023
BEFORE: Fitzpatrick J.
COUNSEL: L. Livingstone, for Resolute O. Eng, for Greenpeace
ENDORSEMENT ON REFUSAL MOTION
Fitzpatrick J.
DATE: August 11, 2023