Here's a letter to the editor we received from Alan Dutton, one of the Burnaby Mountain Five named in Kinder Morgan's civil suit, which the company has now dropped. Kinder Morgan filed for a unilateral discontinuance, which means the case can be revived, as Alan says below, but I've been told by another lawyer that never happens.
Alan, a spokesperson for Burnaby Residents Opposing Kinder Morgan Expansion, is still purusing his legal options, and he's campaigning to bring anti-SLAPP suit legislation back to B.C. with a provincewide petition.
Here's his letter:
From: Alan Dutton, Burnaby Residents Opposing Kinder Morgan
To: Burnaby Now
Date: February 5, 2015
Subject: Re: Kinder Morgan drops suit against protestors
Based on a Trans Mountain news release of January 30, 2015, the Burnaby Now reported that the subsidiary of the Texas based Kinder Morgan oil company is "dropping its multimillion-dollar civil suit against all five Burnaby Mountain protestors and is willing to pay their costs."
However, Trans Mountain's news release must be read with a good deal of caution. While Trans Mountain promises to pay the costs of defendants, the company does not specify what costs will be compensated. Court regulations require plaintiffs that unilaterally discontinue a civil suit to cover only a small fraction of the court costs of defendants as punishment. In the case of Trans Mountain's civil suit, costs will likely amount to just few thousand dollars. The small amount of compensation is nowhere close to the tens of thousands in legal fees required for defense against the civil suit, nor does it cover damages and lost time to defendants.
In addition, Trans Mountain's promise to drop its civil suit offers little finality. Trans Mountain issued a unilateral notice of discontinuance not a consent dismissal order. A consent dismissal guarantees that the plaintiff (Trans Mountain) cannot sue the five defendants again on the same facts. A simple discontinuance allows the Trans Mountain to bring another lawsuit against any or all of the defendants.
Two of the five defendants already had accepted a discontinuance without costs in mid-December. Two of the three remaining defendants had rejected Trans Mountains' offer to discontinue without costs and without finality. Those two wanted finality and costs and were fighting for a consent dismissal.
As the fifth and final defendant, I rejected both the offer of discontinuance and a consent dismissal order. I took Trans Mountain to court in January to argue for a more comprehensive dismissal with costs and damages on the basis that Trans Mountain's civil suit was a SLAPP suit. SLAPP stands for strategic litigation against public participation and are used by large corporations to silence their critics and prevent them from protesting, thus denying fundamental democratic rights. The judge decided not to strike the claims on the basis of court rules, which require an extremely high threshold to be met on application to strike at this preliminary stage.
I was on the verge of launching an appeal when Trans Mountain unilaterally issued a notice of discontinuance that protected the company from further court action against the civil suit. Meanwhile, all the allegations of conspiracy, assault, etc., and damage to my reputation and wasted time are left hanging.
What have we learned from Kinder Morgan's lawsuit and promises? A very intelligent woman named Sue explained to me via social media that the whole point of a SLAPP suit is to bring a lawsuit to make the little guy spend lots of time and emotional energy and money, and then drop it before it can come before a court of law where, in this case, the transnational would have to prove their allegations of conspiracy, etc. The transnational drops the SLAPP suit before it can go to court so that the threat of reviving the lawsuit continues to hang over the little guy. The transnational has to pay a portion of their funds to keep the suit "alive," but it's a small investment. As a portion of the little guy's funds, however, it is huge. This is why anti-SLAPP suit legislation is so important in a democratic country like Canada. It's the only way the big guys can be penalized for using the law in this way to silence their critics and stop protests. Thank you Sue!
This is why I refuse to settle, stay quiet or stop legal action and why I am fighting for anti-SLAPP legislation in B.C.