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Trans Mountain v. Dutton

On September 26, 2014, the BC Supreme Court denied the City of Burnaby the right to appeal the decision of the NEB to allow Kinder Morgan to undertake survey work and test drilling on Burnaby Mountain Conservation Land. The decision infuriated residents, environmental, church and many other groups and they began demonstrating against the work on the mountain. Kinder Morgan responded by filing a $5.6-million civil suit against five people for speaking out and allegedly interfering with contractual relations.

The media quickly identified the civil suit as a SLAPP suit, or strategic litigation against public participation. SLAPP suits have become common throughout North America, including the province of British Columbia, and are causing havoc among many types of groups. SLAPP suits generally lack merit and are not likely to succeed in court. Instead the goal of a SLAPP suit is not generally to win, but to silence critics. SLAPP suits tie up resources, drain resources, divide groups and may also dissuade others from speaking out and excising their own rights to express themselves.

When it became apparent that Kinder Morgan was loosing the publicity war against the defendants, the transnational offered the defendants a “discontinuance.” Two jumped at the offer and accepted. A discontinuance, however, is not a settlement and does not end the civil suit, or result in the corporation paying for court costs. The allegations against the defendants stand. As a result, three of the defendants refused the demands to settle. Alan Dutton took Kinder Morgan back to court claiming that the civil suit was, in fact, a SLAPP suit and claiming damages. Dutton lost the case and Kinder Morgan issued a unilateral discontinuance against the three remaining defendants, resulting in a liability for Kinder Morgan to pay a portion of the mounting court costs.

The experience of days in court and the injustice of the court system resulted in Dutton mounting a provincial campaign for law reform against SLAPP suits. West Coast Environmental Law has provided two grants to Dutton to hire a legal research team for law reform and Dutton is working with groups to petition the provincial government for change to protect Charter rights that are under attack from corporations that are able to use the legal system to suppress Charter rights.

No matter how the campaign fares, however, one thing is clear; Kinder Morgan bit off more than it could chew. As one reporter for an oil strategy journal recently wrote:

…as the public reaction to Kinder Morgan’s suit shows, energy companies should use their legal recourse in the courts – however it might be defined – with both caution and restraint. Both Coleman and Cowan say that companies should carefully consider the optics of engaging in a suit against a critic rather than engaging with critics in an open dialogue. To the public, a case that is dismissed as a SLAPP is often seen as an attempt by a company to gag a small, independent critic. Public support tends to fall with the oppressed – whether the oppression is perceived or real. (