Canadian Institute for Business and the Environment
Fisherville, Ontario, Canada
Tel. 416 410-0432, Fax: 416 362-5231

Vol. 14, No. 9, November 18, 2009
Honoured Reader Edition

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SLAPP suits, designed to slap down critics and, in some cases, to put individuals and families of opponents of so-called development initiatives through mental anguish have been around for many years. Recently the Environmental Commissioner of Ontario and other governmental organizations have been taking a more critical look at how corporations misuse their wealth and their political power to beat down their opponents. We review the state of thinking in this field, beginning with a guest column from the ECO.
SLAPP suits might sound like a dry and legalistic theme but Gallon Environment Letter always strives to make our reading interesting and fun. Seek our movie trailer link in this issue for what The Yes Men thinks is an "honest representation of what Dow should be doing". Read about Bananas!*. And it is not only critics who spoof the deep pockets. Consultants to the coal industry were recently caught with forged letters purportedly from an icon of American society. Paris Hilton does not find her way into the pages (screens?) of Gallon Environment Letter too often but here she is in our SLAPP suit issue!
This issue of GL also marks 40 years of work by the Conservation Council of New Brunswick, one of the founding groups in Canada's contemporary environmental movement. David Coon is its executive director; many readers will know him from his days as manager of Ecology House, an energy demonstration home which once stood over the back of the Spadina subway station on Madison Avenue in Toronto. BP has been hit by very large fines, which it is disputing, and Canada's winter Olympic medals may not be quite as green as they seem.
Enjoy this issue and keep those Letters to the Editor coming to
Our next issue will take a realistic look at the question of local food for year-round eating and the holiday season. Unless, of course, the Copenhagen climate talks really heat up, in which case we may bring you an analysis of the Copenhagen conference.
The Air & Waste Management Association is a nonprofit, nonpartisan professional organization that enhances knowledge and expertise by providing a neutral forum for information exchange, professional development, networking opportunities, public education, and outreach to more than 8000 environmental professionals in 65 countries. Its annual conferences are always well attended by environmental and engineering professionals from industry, academia, government, and elsewhere.
Next year the AWMA Annual Conference will be held in Calgary from June 22 to 25. The association currently has a Call for Papers for the Calgary meeting. Presenting a paper at the AWMA Conference is an excellent way to advertise your skills, expertise, and achievements. People interested in what you do will come to your session.
Canadian environmental professionals are strongly encouraged to submit an abstract for the Calgary AWMA Conference. The deadline for abstract submission is December 4th. All the information needed to submit an abstract, including principal areas of AWMA interest, is available on the Conference website at . Abstracts can be submitted electronically through the website.
The same site also has information on other ways to participate is this high profile international environment conference, including as an exhibitor, sponsor, etc.
By the way, GL's editor, Colin Isaacs, will be speaking at the EUEC Energy and Environment Conference in Phoenix on February 2, 2010. His topic is "A GRI-compliant Sustainability Report for a Distribution Utility".
Planning's Uneven Playing Field: the Asymmetry of Power and Resources as a Barrier to the Public Interest and Participation
Excerpt from Gord Miller, Environmental Commissioner of Ontario / Annual Report 2008/2009 Part 3 Building Resilience in Planning

Every year, the ECO receives many inquiries from Ontario residents and neighbourhood groups who are concerned about development proposals in their communities. Unfortunately, these concerned residents and ratepayer organizations often lack the resources and specialized knowledge necessary to navigate the complex planning approval process. The system is hugely weighted in favour of those in the development industry, who have the resources, knowledge and experience (and access to a stable of planning, environmental and other professionals with specialized expertise) to skillfully argue their case before the Ontario Municipal Board (OMB).
Nowhere is the asymmetry of the system more evident than in the relative economic power of the two sides involved. When the stakes are in the many millions - sometimes billions - of dollars, the resources that developers are prepared to invest to overcome residents' objections far surpass the capacity of most citizens groups, environmental organizations, and even conservation authorities and municipalities.
Adding to the wide asymmetry inherent in the system is the threat of "SLAPP suits" - Strategic Lawsuits Against Public Participation - described as "civil actions with little or no substantial basis or merit advanced with the intent of stifling participation in public policy and decision-making." In the planning context, SLAPP suits are advanced by developers to discourage local residents from participating in the planning approval process, to divert citizens groups' financial and/or other resources from public participation, or to punish residents for participating. SLAPP suits, whether successful or not, affect far more than the specific individuals or groups that are targeted as defendants; such lawsuits can deter others from participating in the same or other matters of public concern, out of fear of the financial liability that could ensue.
The Big Bay Point Decision
In Ontario, a recent case before the OMB shone a spotlight on this issue. A group of concerned residents and others participated in an OMB hearing regarding approvals for Big Bay Point Resort, a proposed $1 billion luxury resort project on the shores of Lake Simcoe. The developer, Kimvar, who was successful at a 2007 hearing in obtaining the required approvals to proceed despite opposition from the residents' group, subsequently sought a costs award of $3.2 million dollars against the group of opponents and their lawyers.
Kimvar argued that the opponents had delayed the hearing process and engaged in unreasonable, frivolous and vexatious conduct in bad faith and without regard to cost. The opponents argued that the motivation behind Kimvar's claim for costs was to silence public opposition to the project, which constitutes an improper purpose, and that making the requested award for costs would have the effect of a SLAPP suit.
The Environmental Commissioner was called as a witness for intervenors who sought to argue that a large cost award would discourage public involvement in future OMB hearings.
In its January 2009 decision on the costs motion, the OMB disagreed that the developer's claim for costs was brought for an improper purpose, but adopted the opponents' position that the public interest should be considered and that in this case "an award of costs anywhere near the amount requested would create a chilling effect." Accordingly, the OMB denied the developer's claim for costs. Despite this positive outcome for the opponents, the costs incurred just to defend the developer's claim have reportedly exceeded the maximum amount the OMB has ever awarded in costs.
The Need for Equal Footing
The Big Bay Point decision and similar cases have led to calls for the Ontario government to develop anti-SLAPP legislation, a move that several US States, (British Columbia) and Québec have already made. On December 9, 2008, a private member's bill, Protection of Public Participation Act, 2008, received First Reading in the Ontario Legislature. However, Bill 138 died on the Order Paper when the Legislature adjourned in June 2009.
The public's right to participate in decision-making over matters of public interest is a cornerstone of our democratic system. Efforts aimed at suppressing this right should be discouraged by the Ontario Legislature and other public agencies. The ECO sees a need for provincial legislation that would put both sides of development disputes on equal footing. Such legislation could serve to halt SLAPP suits in their tracks. It also could provide a means for the public to access financial and other resources in order to exercise their participatory rights in planning approvals and other contexts that have a significant bearing on the environment.
Ontario. Gord Miller, Environmental Commissioner of Ontario. 2008/09 Annual Report - Building Resilience. Submitted to the Speaker of the Legislative Assembly. Toronto, Ontario: October 6, 2009.
Supplement Report
In July 2004, Bennett Environmental Inc. announced it had filed a defamation suit in the Court of Queens' Bench of New Brunswick against the Conservation Council of New Brunswick, an environmental group. On October 7, 2004, Bennett's lawyers amended their claim. The suit also named CCNB staffers Inka Milewski and David Coon.
Bennett is an environmental remediation company which was "engaged in the construction of a High Temperature Thermal Oxidizer facility ("Thermal Oxidizer) at Belledune, in the County of Gloucester, Province of New Brunswick." The claim states that Bennett got all regulatory approvals and permits for the construction of the facility and that "CCNB objects to the construction of the Thermal Oxidizer, and has conducted a public campaign against the facility's construction in which Milewski and Coon have participated, alleging serious public health and environmental risks."
The claim goes on to review some elements of the campaign which include writing letters to the editor of the Saint John Telegraph-Journal and speaking to journalists about issues such as the cumulative effect, quantity and other risks of emissions from the facility said by the claim to be "false and defamatory." Ditto for the group's discussion about failures within the environmental assessment not being made on sound scientific practices. The claim goes on to identify statements Bennett considers false and defamatory and states that all of the words cited were published with "actual and express malice."


As of November 9 when GL's editor talked to David Coon, Executive Director of CCNB the Bennett case is inactive. David Coon told GL that the Court has issued a notice to review the status of this case, a review expected in January 2010. Although the company built the thermal oxidiser, it has never been operated and the facility may now be up for sale.

As if the one lawsuit isn't enough for a small group already stretched for time, money and resources, the insurance company providing liability insurance refused to pay the lawyers fees. CCNB went to court against its insurance company and won at the Court of the Queen's Bench and at Appeal Court. The insurance company still would not pay for CCNB's legal costs until ordered to do so by the court. After the loss, the insurance company cancelled the insurance so the environmental group had to seek insurance elsewhere with much higher rates, no doubt exacerbated by the still pending case with Bennett.
A campaign called Friends for the Legal Defence of the Conservation Council began fundraising in September 2004 to support the CCNB efforts. Their web site has a list of some SLAPPs including logging company suits against forest campaigners against clear-cutting.
[see also separate article on CCNB's 40th anniversary]

Friends for the Legal Defence of the Conservation Council. About the lawsuit ... What is the Bennett lawsuit claim?
Bennet Environmental Inc. Statement of Claim. Saint John, New Brunswick: October 2004.
As well as corporations, governments and government agencies also participate in SLAPP-type suits. Defamation and copyright infringement are common reasons in the claim. In the end though, the issue is often not about due process but about issuing threats and pressures to get approval for projects which might be delayed or stopped due to public opposition or to punish critics so they and others won't speak up again. The attention companies draw to themselves isn't always beneficial to them and some suggest thinking twice before launching such Goliath vs David lawsuits. GL includes in this issue some other examples of how power imbalance is sometimes leveraged.
The existence of anti-SLAPP legislation does not provide any protection against lawsuits. Companies might think twice before launching a suit if the court could name it a SLAPP but people who see themselves as speaking out in the public interest can still get sued. What the legislation does is that the court can decide that, if all conditions of the legislation are met, the case can be dismissed as a SLAPP. The defendant still has to come to court but the trial process is short and cheaper. Or the court may decide that all the conditions of the anti-SLAPP legislation are not met and that some or all of this isn't a SLAPP so a trial proceeds with no protection from the anti-SLAPP legislation.
Quebec passed anti-SLAPP legislation in June of this year. Apparently the act allows the courts to evaluate cases already filed. Publisher Écosociété and the three authors of the book Noir Canada hope it will help them in the lawsuit brought by Canadian mining firms Barrick Gold and Banro Corporation for damages over $10 million. Because the size of the claim is so huge, Écosociété, the publisher and friends have has been lobbying for this legislation for some time. with the names of the suing companies always mentioned.
British Columbia had legislation enacted by the NDP in April 2001 and rescinded a number of months later when the Liberals won the provincial election so no court case was ever heard under the law.
A number of states have anti-SLAPP laws.*
Often anti-SLAPP legislation assigns the legal cost of the defendant to those who launch the lawsuit as a SLAPP but this doesn't help much because a big company doesn't feel much pain at the kind of costs awarded if the court finds they have SLAPPed the defendants. A small indicator is the lack of information conveyed to investors in the company's financial reports; SLAPP suits are rarely mentioned - neither the damage to reputation purportedly done by the defendants or the possible costs of the suit are considered of material risk to the company.

On the other hand, a small environmental group or "Joe/Josephine Schmuck" who gets sued is overwhelmed by the risk of the costs. Just spending time away from work and paying lawyers upfront is daunting enough. Using an American payscale example, a $2 million dollar cost assessed by the courts on Joe Schmuck earning the average wage of US$41,861,  is 48 years of annual income (with no proviso for eating, paying taxes, etc). According to a study done by the Economic Policy Institute ** in the US, in 2005 the average CEO of a company with at least $1 billion dollars revenue earned just about the same in one day as the average worker earned that whole year.  In relation to the risk of having to pay the $2 million, on average a company matching that criteria would risk what it pays its CEO for just about 48 days. Our Joe Schmuck risks more than a lifetime of wages; suing company 2 and a bit months of CEO's wages, wages which many companies have increased by more than a few million anyway.
**A study in the US done by the Economic Policy Institute reported by CNN estimated that in 2005 the average CEO of a company with at least $1 billion dollars revenue was $10,982,000 or 262 times what the average worker made at $41,861. The workdays are calculated as totalling 260 days with pay (52 weeks x 5 days a week) In 2005, the ceo-to-worker gap was the second highest recorded with 2000 being the highest.

Paid subscribers see link to original documents and references here. 

The British Columbia Civil Liberties sued the City of Powell River in British Columbia last January to obtain an order that the City did not have the legal authority to sue or threaten to sue for defamation and that the City was not allowed to threaten defamation action against individuals for published letters critical of the city.

Some residents of the community opposed steps by the City of Powell River for a $6.5 million project known as the North Harbour Project. One critic published sharp criticism of the conduct of city council in an online newspaper known as Peak Online, another suggested the council was involved in criminal behaviour and a city councillor wrote an email stating her opposition. The City retained legal counsel and sent letters to these objectors, saying the statement were defamatory and actionable and demanding a retraction and publication of an apology. In fact, the City never did launch a suit.
In the decision in March, the Judge said, "It is antithetical to the notion of freedom of speech and a citizen's rights to criticize his or her government concerning its governing functions, that such criticism should be chilled by the threat of a suit in defamation." Because municipalities are considered "natural persons" like all corporations, a number of rulings before The Charter of Rights and Freedoms gave them the right to sue for defamation. However, these court cases had been before the passing of the Charter* which influenced judges in subsequent rulings to favour citizen's free speech over municipal rights. She ordered that "The defendant City of Powell River lacks any legal basis or right to bring civil proceedings for defamation of its governing reputation, or bring other proceedings of similar purpose or effect, or to threaten to do so,"
*Section 2 of the Charter provides that:
"Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;"
Paid subscribers see link to original documents and references here.
The Canadian Civil Liberties Association was granted leave to intervene in the case of Leblanc c. Rawdon (Municipalite de). The city sued residents for defamation of two public officials and the city about remarks made in an online forum. Until the trial, the Quebec Superior Court ordered the defendants to stop making any comments defaming the municipality. The CCLA writes that it is extremely concerned about the freedom of speech implications of municipalities suing for defamation in general, as well as the broad order restraining future speech that was issued in this case." Arguments will likely be heard in February, 2010.

Long time head of the CCLA Alan Borovoy is now designated General Counsel, Emeritus. Since July 1, 2009, Nathalie Des Rosiers, who was Dean of the Civil Law Section at the Ottawa University Faculty of Law from 2004-2008 has been General Counsel. GL hopes that we will get to know her voice as well as we knew the distinctive voice of Borovoy, whose rarely failed to inspire us with hope that Canada could become a free and just society.

Contact: Canadian Civil Liberties Association 506 - 360 Bloor Street West Toronto, ON M5S 1X1 Phone: 416-363-0321 Fax: 416-861-1291 mail//

Paid subscribers see link to original documents and references here.

On October 19, an organization The Yes Men sent out fake press releases and gave a fake press conference at the National Press Club in Washington, DC. They presented a press statement as if it were from the US Chamber of Commerce indicating that the Chamber had changed its position on climate change and would not oppose the Senate climate bill by Senators John Kerry (D) and Barbara Boxer (R). A real executive of the Chamber arrived and the fake and the real representatives challenged each other's credentials. The story was carried as real by wire services before it was announced as a prank. The Yes Men also created a whole web site purporting to be the Chamber but with a different internet address to support their press conference.

As well as various prohibitions on uses of trademarks, names, or copyrights belonging to the Chamber, and ban on the use of the video of the press conference, the Chamber seeks damages, share of the profits of the prank and award of court costs.

Yes Men released their new movie The Yes Men Fix the World at the Sundance Film Festival this year. The Yes Men say they are comedians. They have done other bogus takeoffs including Dow, McDonalds, and at a 2007 oil conference in Calgary, Alberta posing as Exxon Mobil.
The case is still before the courts but at least one or two legal observers have suggested that the Yes Men could get hammered - copyright laws are so strong. Unlike the case of the Conservation Council of New Brunswick (see separate article) which is clearly an environmental group, the Yes Men, as the Chamber emphasized in its statement of claim, is a commercial group involved in selling films and publications. Yet GL wonders if that should be the decisive issue in court. It is legal to spend millions of dollars, as the Chamber does, in long-term lobbying against action on climate change. Action on climate change is clearly in the public interest yet there is little protection of free speech which draws such lobbying to the public attention when the copyright laws are called on.
High Profile Exits from the US Chamber of Commerce
In October a number of high profile companies, including Apple, PG&E, and Nike, exited the Chamber giving climate change as a reason. GL thinks that negative publicity may have caused more damage to the Chamber than anything the Yes Men could have done.
Film: Yes Men Fix the World
The film "The Yes Men Fix the World" was aired at the Sundance Film Festival in January, was an official selection at Hot Docs in Toronto (it is not a documentary film!), has won awards at several film festivals, and is described in a New York Post review as "a hilarious movie". The two leads, Andy Bichlbaum and Mike Bonanno, described as a mix of Michael Moore and Sacha Baron Cohen, pose as corporate executives from such companies as Exxon, Halliburton, and Dow and undertake pranks based on apparently real situations which make the companies look ridiculous.

It is not obvious that it is yet being distributed in Canada but it is in limited release in both the US and the UK.

Paid subscribers see link to original documents and references here.

See also Gallon Environment Letter Vol. 13, No. 10, October 29, 2008: Special Us Election Issue Article: US Chamber of Commerce: Election 2008.

While the US Chamber of Commerce launched its lawsuit against the Yes Men (see separate article), one of its major policy platforms for prosperity in America is "Ending Lawsuit Abuse and Ensuring Litigation Fairness: America's Out-of-Control Civil Lawsuit System Hurts Businesses, Employees, and Families." The law reform section states that "Frivolous lawsuits are crippling our legal system and sucking the vitality out of American businesses." and "Our out-of-control lawsuit system costs more than a quarter of a trillion dollars a year, representing 1.8% of U.S. GDP."
The rest of the section discusses, among other things, the legal reform needed at the federal, state and international levels, consumer-related lawsuits, the False Claims Act, too many state laws rather than federal ones, and reining in of "aggressive" Attorney Generals.

Paid subscribers see link to original documents and references here.
In July, Dole filed a lawsuit against a Swedish filmmaker Fredrik Gertten about the film Bananas!* which depicts a 2007 trial in which a Los Angeles lawyer represents Nicaraguan workers who say they were sprayed by the company with a banned pesticide. Millions of dollars of damages were awarded.
Although Dole continues to say the claims in the film are untrue, it withdrew its claim. According to one version of the story, one of the factors in the Dole decision might be the level of support the film/filmmaker received. Swedish grocery store chains ICA and Axfood scheduled a talk with Dole representatives. Max, a Swedish hamburger chain, stopped selling Dole fruit salad and some MPs spoke against the lawsuit as undermining free speech. Dole's sales in Nordic countries has grown in recent years with sales of nearly $500 million last year. The supermarkets didn't exactly say they would stop buying from Dole but the threat of the "talk" obviously was like those lawyer phone calls some corporations send the way of environmental groups.
Sounds like a SLAPP, but (see below) it may be that the film does not reflect reality very much.

* The star is part of the film's name Bananas!*

Paid subscribers see link to original documents and references here.

Widespread Fraud in Nicaraguan Workers Claims

On October 20, 2009, Judge Paul C. Huck of the United States District Court Southern District of Florida denied recognition of a $97 million Nicaraguan judgement. The Plaintiffs are 150 Nicaraguan citizens alleged to have worked on banana plantations in Nicaragua between 1970 and 1982 during which time they were exposed to dibromochloropropane (DBCP). DBCP was banned in the US because it was found to cause sterility in factory workers in 1977. Nicaragua banned it in 1993. Both Dole and Dow Chemical Company are defendants. Dole is alleged to have used DBCP in Nicaragua between 1957 and 1979 .
Special Law 364, was enacted in Nicaragua in 2000 to deal with DBCP claims. The Nicaraguan trial court awarded the plaintiffs $97 million in one case. The Defendants have appealed the decision in Nicaragua and the case is still pending. The trial in Miami sought to enforce the claim in the US. There are about 200 other DBCP cases pending in Nicaragua and some have proceeded including one in which the Nicaraguan trial court awarded 1248 plaintiffs over $800 million. Previous trials in the US in relation to Special Law 364 SL364 were dismissed on technical grounds without establishing whether the SL364 is enforceable in the US.
In the recent Miami case the judge ruled that the defendants had not been given due process and that the Nicaraguan judgement was not enforceable. For example, when Dole tried to introduce birth certificates of the children these men had fathered, the court wouldn't allow it even though that was proof that they weren't sterile.
While this is not the case covered in the film Bananas!*, the movie does discuss others which have been tried in US courts as well as in Nicaragua under SL364. In 2007, in Tellez vs Dole, six plaintiffs were awarded five million dollars and the defendants were found not liable for the other plaintiffs. After the verdict, Dole alleged there was fraud involved and that some of the plaintiffs had never worked on a banana farm. Two other DBCP cases have been heard in California and the court set up a system of getting depositions from Nicaragua including protection of the witnesses. The court concluded that there was widespread conspiracy to commit fraud, including the Nicaraguan trial judge who issued the earlier judgements, the plaintiffs and some doctors. The US cases were dismissed and the California appellate court sent back instructions to the trial court to vacate the judgement in the Tellez case due to the fraud findings.

Censorship of films, especially those about poor farm workers, is always problematic especially if one adds to that the potential cynicism about the US protecting its captains of capitalism. There is no doubt there are some workers who were harmed by the pesticide but until we find a better way of dealing with harm to those who can't afford the legal system, the decision about fraud in these cases does indicate that Dole's desire to shut people up isn't just a SLAPP. In the meantime, the film Bananas!* has had far more publicity that the filmmaker could have dreamed of.
Paid subscribers see link to original documents and references here.
In a 2006 US court decision, Canadian company Teck Cominco was found to be subject to liability under the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund. Teck's lead-zinc smelter in Trail, British Columbia operating from 1906 to 1995, discharged tons of slag into the Columbia River which carried the heavy metals and slag into Lake Roosevelt in the State of Washington. The US Environmental Protection Agency, following a request in 1999 by the Confederated Tribes of the Colville Reservation (Pakootas), issued an order in 2003 that Teck assess the contaminated site. Later the Pakootas used the citizen suit provisions of the CERCLA to sue Teck for failure to comply with that order.

Despite appeals, Teck was found to be liable for cleanup in 2006. Even though its disposal activity occurred in Canada, the court decided that the river currents were stirring up contamination and hence releasing hazardous substances in the United States. The first phase for determining how Teck will be held responsible for cost recovery for the cleanup and for natural resources damage is expected to begin October 2010.
CERCLA is about liability for cleanup of hazardous substances which have already been disposed not the disposal itself and which are released or are threatened to be released into the environment.

In a counter lawsuit, Teck sought to make the Tribes which launched the lawsuit co-responsible for the cleanup because the mines they operated might have contributed to some of the pollution. In a decision released in June, the US court ruled the Indian tribes are not municipalities or any of the other types such as corporations which are defined as "persons" under the Superfund subject to liability for cleanup so Teck's counter suit was dismissed.
Paid subscribers see link to original documents and references here.

As one of many topics, the Ontario Environment Commissioner ECO 2008/2009 report provides a good review of the issues relating to the ban on cosmetic pesticides and explores the concept of risk-based environmental decisions. Dow AgroSciences brought a challenge to a similar Quebec regulation under Chapter 11 of the North American Free Trade Agreement based on the argument the ban of 2,4-D is not based on science. Dow is seeking compensation for loss of profit as well as damages. ECO says, "This NAFTA challenge is just the latest of many lawsuits brought by corporations to prevent government from passing laws aimed at limiting public exposure to harmful substances." MOE is commended for the public consultation and the use of the Environmental Registry at the various stages: policy, statute and regulation along with information sessions with one failure of not posting the guidelines as a separate policy proposal.
In Ontario, the Environmental Bill of Rights gives the public the right to participation in environmental decision-making. With some exceptions, Ministries covered by the legislation are required to post notices of environmentally significant proposals for policies, Acts, regulations and instruments (permits, licences, approvals, direction, orders) on the registry. The Environmental Commissioner of Ontario ECO reports annually.
Ontario. Gord Miller, Environment Commissioner of Ontario. 2008/09 Annual Report - Building Resilience. Submitted to the Speaker of the Legislative Assembly. on
Toronto, Ontario: October 6, 2009.
Supplement Report

SLAPP suits are not always about the environment or development. Recently Paris Hilton brought suit against Hallmark for using material clearly identified with her. Her claim was that a Hallmark card was commercial speech and it was infringing on her rights to make profit. She asserted that the card's depiction copied too closely a scene that she made famous on her television show. The case provides an example of the process under the California rules (Cal. Civ. Proc. Code § 425.16) including the context of the SLAPP legislation in relation to other laws. It shows that the defendant can't ahead of time tell whether they are safe from litigation. While many see SLAPP suits as a way to protect the weak and underfunded, this case also shows how the powerful and rich use whatever means to protect their interests.
There are two steps in escaping from further litigation under the California anti-SLAPP legislation.
Step 1
Hallmark must show that it meets the threshold "that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue [or an issue of public interest]."
Among the discussion was:
The court ruling: "Hallmark's card qualifies as speech and falls comfortably within the universe of types of communication that California courts have considered "conduct in furtherance of" the exercise of free speech rights upon which to base anti- SLAPP motions to strike." So Hallmark won at Step 1
Step 2
If the defendant does meet the threshold in Step 1, then the onus falls on the plaintiff to prove that they have a probability of prevailing on the claim. The plaintiff can't rely on discovery (the disclosure of facts which the opposing parties must provide each other during normal litigation) but must bring enough evidence to this court so that if that evidence were proven true, a trial court might give a favourable judgement. The court at this stage doesn't evaluate the credibility or the competing strength of the evidence brought by either party just that the plaintiff has a legally sufficient basis to the complaint.

If the defendant were able to defend its actions by claiming "publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it....Public interest attaches to people who by their accomplishments or mode of living create a bona fide attention to their activities" then the plaintiff would have lost. However, the court ruled that "Hallmark cannot employ the "public interest" defense because its birthday card does not publish or report information."

In order to fail, the Plaintiff's case must lack even minimal merit so even a small chance of success is enough for the Plaintiff to win at this step. The court decided that it had at least a small chance so Hallmark lost at Step 2.
So the court ruled this was not a SLAPP suit and allowed Hilton to pursue her case against Hallmark.

Paid subscribers see link to original documents and references here.


The US House Select Committee for Energy Independence and Global Warming held hearings at the end of October on fake letters supposedly sent by public interest groups but actually sent by the public relations firm Bonner & Associates to support its work with the American Coalition for Clean Coal Electricity (ACCCE), an industry group opposing bill H.R. 2454, the American Clean Energy and Security Act. The House passed. H.R.2454 and recently a Senate committee approved a version for the Senate to consider. Eventually combined, they may direct US action on climate change.

Rep. Tom Perriello said, "I am pained to see [that] so many good, upstanding groups, including seniors' groups and an American Legion post, misrepresented and dragged into this debate. Our Founding Fathers knew the importance of an elected representative body held responsible by the people and ensured that the right of the people to petition the government would be protected by the 1st Amendment. While politics has never been pretty, there are certain lines you just don't cross, like the forging of letters, which must be taken very seriously."
Groups misrepresented also gave presentations as did the industry-funded groups and companies.
Paid subscribers see link to original documents and references here.

Cindy Chiasson, Executive Director of the Environmental Law Centre, writes in Alberta Oil Magazine about the uneven power balance for the public and landowners with interests in the oil and gas development process.
Public consultations take place relatively late in the oil and gas development process with no formalized public input when mineral rights are leased. While oil companies have to ask for permission before exploration for oil, there is no formal consultation required. Consultation details are in force once the developer seeks approval for a well and associated facilities with a 14-day window to review materials and express concerns. The guide written by the Canadian Association of Petroleum Products goes beyond the regulatory requirements for public involvement but it is voluntary and developers may choose not to follow it.
Chiasson writes, "The regulatory emphasis on resource recovery and the relative imbalance in funding and technical expertise between developers and the public tends to tilt the playing field significantly in favor of the industry." Some concerns she expresses are:
Chiasson suggests that family law would be a good model. In a divorce case, if one spouse is not represented by a lawyer, the courts will require a certificate that this spouse has consulted independent legal advice before granting an uncontested divorce settlement. In other words, before a landowner can sign a non-objection, he/she must show proof of having got advice about his/her rights in order to make an informed decision.
The Environmental Law Centre was founded in 1982 "to provide Albertans with an objective source of information about environmental and natural resources law and policy. Its vision is a clean, healthy and diverse environment protected through informed citizen participation and sound law and policy, effectively applied. The Centre's mission is to ensure that laws, policies and legal processes protect the environment."
Chiasson, Cindy. Building Relationships: Industry should look to family law of all places, to improve the fairness of energy projects. October 19, 2009 Published in Alberta Oil Magazine October-November 2009.
The Conservation Council was one of the three original environmental organizations founded in 1969, marking the beginning of the modern environmental movement in Canada. The other two were Toronto's Pollution Probe and Vancouver's Society for the Prevention of Environmental Contamination (SPEC).
Among some of the contributions made listed in the press release by The Conservation Council in its 40 years are:
Contact: David Coon, Executive Director: 506 458-8747
Conservation Council of New Brunswick, 180 St. John Street Fredericton NB E3B 4A9,
Conservation Council of New Brunswick. Conservation Council Marks 40 Years of Environmental Achievement. News: October 16, 2009.
The Occupational Safety and Health Administration of the US Department of Labour issued BP Products North America Inc over $87 million in proposed penalties for failing to correct potential hazards for employees. It is the largest fine levied by OSHA following the 2nd largest penalty levied in 2005 also against BP. After an explosion at BP's Texas City, Texas refinery (southeast of Houston) in March 2005 which killed 15 people and injured 170, BP entered into an agreement to eliminate potential hazards at the facility. OSHA's six month inspection notified BP of 270 potential hazards "failure to abate" and 439 "new willfull violations".

On October 30, 2009 BP announced that BP Products North America Inc. formally contested all citations including alleged violations and proposed penalties. Previous disagreements with OSHA had been brought by BP to the Occupational Health & Safety Review Commission, a body that is independent of OSHA. BP has posted information including explanations of why the company thought that although the 2005 Settlement Agreement expired on September 22, 2009, not all actions had to be completed by that date.
GL often thinks that most fines are of no material significance to really big companies. This one seems significant but may not be. BP globally earned $35, 239 million profit before interest and taxation from continuing operations in 2008, the highest of the three years 2006-2008. A $87 million fine is about .25% of the above profit which if applied similarly to a Canadian earning $60,000 a year would be about a $150 fine.
Paid subscribers see link to original documents and references here.
See also Gallon Environment Letter. STSS Section: Urgent Recommendations for BP Vol. 10, No. 21, November 30, 2005

In the press release announcing the unique one-of-a-kind Olympic medals, the press release from the Olympic organizers quoted president and CEO of Teck Resources*, Don Lindsay, ""We're also excited that these medals will contain recycled metal recovered from end-of-life electronics, consistent with the sustainability philosophy of the Olympic and Paralympic Games."
We had to ask and eventually we received an answer. Teck's process involves recovering metals contained in computer parts and circuit boards through smelting. The parts and circuit boards are shredded and smelted in such a way that the plastic parts are burned off and the valuable metals can be recovered. The smelting takes place at Teck's Trail BC facility and at Umicore facilities in Belgium. Umicore is the former Union Minière, a mining company which once operated in the Belgian Congo, but the company is now a multinational focussed on refining and recycling of precious metals and developing applications for their use.
Despite newspaper headlines such as "Winter Olympics 2010 Medals Made From Recycled Electronics" the actual content of recycled metal in the metal of the medals is: Gold: 1.52%; Silver: 0.122%; Copper: 1.11%. The gold medals are not pure gold but are plated with six grams of gold. so the amount of recovered gold in a Vancouver gold medal is presumably 1.52% of six grams, or 0.09 grams.
Smelting of shredded end-of-life electronics is not an unusual activity in so-called waste electronics recycling but the fact is that this process means that most of the old computer is effectively burned in an incinerator with the plastic and other materials from the printed circuit board and electronic components providing energy but also sending air pollution and greenhouse gases up the stack and creating toxic residue.
Federal rules for recycled content claims on products require that "Where a claim of recycled content is made, the percentage of recycled material shall be stated." GL is pleased to assist VANOC, the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, by letting environmentally interested gold medal winners know that their medal, which weighs about 500 grams, actually contains less than 0.02% of gold recovered from end-of-life electronics by a company that has been found liable for pollution of the Columbia River (see separate article). Maybe it does not matter but at the same time GL wonders if it really was such a good idea for VANOC to make such a big fuss about such a little thing.
* In 2009, the company which was once called Teck Cominco (see separate article) was renamed..
Paid subscribers see link to original documents and references here.
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