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Kinder Morgan's civil suit: Is it really over?

A reader emailed me with some concerns that Kinder Morgan's civil suit isn't really over, and as far as legal technicalities go, she's right.

Kinder Morgan filed for "unilateral discontinuance", and here's what Alan Dutton's lawyer said about it:

A "discontinuance" of a lawsuit is not considered a final order. Therefore, the suit is "put to rest" and could be brought back to life at any time. Technically, the usual way to do this would be to file a new claim. Thus, Kinder Morgan could again sue Alan and the others asserting the same facts and claiming under the same torts (conspiracy, trespass, etc.). By contrast, where a lawsuit is terminated with a final order, either an order by a judge or a Consent Dismissal Order (by agreement of all parties), the lawsuit can not be brought back to life. Kinder Morgan at no time offered a Consent Dismissal Order, and rejected the offer from Gold/Nissen. We are stuck with the discontinuance, and can only hope that Kinder Morgan does not bring another claim in the future.

Please don't hesitate to respond with any further questions or concerns.


Jennifer Mareau

Neil M.G. Chantler*
Chantler &Company
Barristers and Solicitors
601 - 510 West Hastings Street
Vancouver, BC V6B 1L8

I also talked to another lawyer, on background only, who said that the truth about discontinuance is you could revive the case, but that never happens. Something important to note is that Kinder Morgan had to file the civil suit in order to get an injunction. The company has to show the judge what's at stake if the injunction isn't granted, and I was also told (by the same lawyer on background) that the list of tortious behaviours the company alleged the protesters did is somewhat typical.

Kinder Morgan Canada's Ian Anderson told reporters in a conference call back in December (that I was on) that the company wouldn't pursue the case if they could get the work on Burnaby Mountain done. This was likely the case from the very beginning; they just wanted the injunction but had to sue to get it. But you can't really say that while you are actually applying for an injunction. It's a "legal fiction," I've been told.

But all of that is not likely reassuring if you are one of the Burnaby Mountain Five that was named in the civil suit. If I were one of them, I would sleep better at night knowing Kinder Morgan can't sue again, rather than just trusting them when they say they won't.

Something else important to note: When you file for unilateral discontinuance, you are responsible for court costs, so the gesture Kinder Morgan made, as if covering court costs were an indication they wouldn't puruse the case further, was really just something they would have to do anyway.

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