Talk:SLAPP against anti-fracking protest, 2013

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DAISHOWA vs. FRIENDS OF THE LUBICON[edit]

Trial Decision - Complete text of the ruling - Apr 14/98: Ontario Court of Justice, MacPherson, J.

[SOURCE - http://www.lubicon.ca/pa/forestp/daifolp/decision.htm]

Court File No. 95-CQ-59707


ONTARIO COURT OF JUSTICE

(GENERAL DIVISION)


B E T W E E N:

DAISHOWA INC.

Plaintiff

- and -

FRIENDS OF THE LUBICON, KEVIN THOMAS, ED BIANCHI, STEPHEN KENDA, JANE DOE, JOHN DOE and PERSONS UNKNOWN

Defendants

)

)Appearances: Peter Jervis and Lisa Munro for the Plaintiff John Hunter, Q.C.for Daishowa - MarubeniInternational Ltd.

Karen Wristen and Fern Sager for the Defendants Owen Young for Lubicon Cree Nation

HEARD: September 2, 3, 4, 8, 9, 10, ll, 15, 16, 17, 22, 24, 25,26,29,30, October 1, 2, November 24, 15, 16,27, 28, December 1, 2, 10, ll and 12, 1997

MACPHERSON J.:

INTRODUCTION

[1] In this action, the plaintiff Daishowa Inc. seeks to restrain permanently the consumer boycott activities of the defendant Friends of the Lubicon and of some of its individual members, the defendants Kevin Thomas, Ed Bianchi and Stephen Kenda. The action raises novel and important questions about the relationship between, on the one hand, ordinary citizens seeking to participate in and influence debate on a public issue and, on the other hand, corporations and consumers who are directly affected by the manner in which the citizens choose to express their views. The factual touchstones for these questions are a consumer boycott organized by the defendants and their choice of picketing as the ultimate weapon in the boycott.

FACTUAL BACKGROUND

[2] The plaintiff Daishowa Inc. ("Daishowa") is a Canadian corporation with business premises in the provinces of Quebec, Ontario and Manitoba. It operates paper and sawmill operations in Quebec and has a packaging division based in Winnipeg, Manitoba. The packaging division manufactures and sells a variety of packaging products throughout Canada and in the United States. It has sales offices in Edmonton, Winnipeg, Toronto and Montreal.

[3] Daishowa is a subsidiary of Daishowa Forest Products Ltd. which is owned by Daishowa Canada Holdings Ltd. This latter company is in turn owned by Daishowa Paper Manufacturing Co. Ltd., a Japanese corporation. This parent company has another subsidiary, Daishowa Canada Company Ltd. This subsidiary negotiated a Forest Management Agreement ("FMA") with the Government of Alberta in 1988. It built a large pulp mill in Peace River and anticipated that it would supply the mill with wood harvested from the area covered by the FMA. In 1992, Daishowa Canada Company Ltd. transferred its interest in the pulp mill and related logging rights to Daishowa-Marubeni International Ltd., a company jointly owned by Daishowa Paper Manufacturing Co. Ltd. and Marubeni Corporation, a separate Japanese company.

[4] The defendant Friends of the Lubicon ("Friends") is a small public interest group based in Toronto. It carries out activities in Ontario, elsewhere in Canada and, occasionally, in other countries. Its mission is to draw attention to the sad plight, as it perceives it, of the Lubicon Cree Nation in Alberta and to put pressure on governments to take steps to overcome the problems faced by the Lubicon Cree. The Friends try to achieve these objectives through a variety of activities, including letter writing campaigns to governments, public speaking in schools and universities, and the organization of conferences and symposia. The majority of the Friends' activities are strictly educational in nature.

[5] The defendant Kevin Thomas resides in Toronto. He is a student at the University of Toronto; his academic areas of interest are peace studies and environmental studies. He is also a freelance legal researcher engaged principally in refugee, labour and family cases.

[6] The defendant Ed Bianchi resides in Ottawa and is the National Co-ordinator of the Aboriginal Rights Coalition, an ecumenical coalition of churches, aboriginal groups and community groups. He also has a background in film and video production. As an independent producer, he has produced two documentaries about the Lubicon Cree Nation of Alberta, Our Land, Our Life (1988) and A Fight Against Time (1995).

[7] The defendant Stephen Kenda did not testify at the trial which took place in the autumn of 1997 so I am not sure of his current status. In the Statement of Defence dated 20 March 1995 he is described as a resident of Toronto "studying to become a 'Shiatsu' massage therapist."

[8] The plaintiff seeks to restrain the activities of the defendants in Ontario. Those activities have their origins in events that unfolded in Alberta a decade ago. Daishowa Canada Company Ltd. offered to build a large pulp mill in Peace River, Alberta. Negotiations between the company and the Government of Alberta ensued. The result was a Forest Management Agreement between the parties which gave the company logging rights over a large tract of land in Alberta.

[9] The land that was the anchor of Daishowa's FMA was disputed land. Native people have lived in Alberta for centuries. They were there long before white settlers arrived, and long before Alberta became a province of Canada in 1905. One of the native bands with a long history in Alberta is the Lubicon Cree Nation.

[10] The Lubicon Cree is a small band located in Northern Alberta near Peace River. Unlike most of the other native bands in Alberta, the Lubicon Cree has never negotiated a treaty or other agreement with respect to the lands which it claims. The lack of an agreement is not for want of effort. For over a half-century, the Lubicon Cree Nation and both levels of government, federal and provincial, have engaged in sporadic, but unsuccessful, negotiations with a view to defining their relationship in a shared future.

[11] In simple terms, the FMA negotiated between Daishowa Canada Company Ltd. and the Government of Alberta covered a substantial portion of land claimed by the Lubicon Cree. The agreement gave the company the right to cut trees in an area which the Lubicon Cree regarded as central to its economic and spiritual history and future.

[12] The Lubicon Cree took steps to protect its interests. One of those steps was participation in a demonstration organized by the United Native Nations at the Vancouver office of Daishowa Canada Company Ltd. on March 7, 1988.

[13] On the day of the demonstration, representatives of the company and the Lubicon Cree met to discuss the situation. The key members of the delegations were Koicho Kitigawa, the then vice-president of the company, and Bernard Ominayak, then and now the chief of the Lubicon Cree Nation. That the meeting took place at all is a testament to the good will and sensitivity of Kitigawa and Ominayak. Moreover, the contents of the discussions at the meeting, as reflected in two detailed sets of notes prepared by other participants, are laudable and were promising at the time. Unfortunately, the results of the meeting have haunted the participants for a decade, and are a major source of this litigation. In bald terms, the Lubicon Cree Nation thought that the company agreed at the meeting not to log on disputed lands until the rights of the Lubicon had been finally settled in negotiations among the Lubicon and the federal and Alberta Governments. The company, on the other hand, regarded the outcome of the meeting as a useful and hopeful introduction, a promise to meet again, and nothing more.

[14] It took two years for the company to build the pulp mill in Peace River. After it was built the company wanted to exercise the logging rights it had acquired under the FMA. The Lubicon did not want this to happen until its perceived aboriginal land rights were protected. The different positions are reflected in correspondence between Mr. Kitigawa and Chief Ominayak and one of his advisors, Fred Lennarson, shortly after their March 7, 1988 meeting. After that meeting, Mr. Lennarson had forwarded a map on which was marked the "area of concern" for the Lubicon Cree. In the letter accompanying the map Mr. Lennarson said:

The area outlined in blue is the area over which the Lubicon people intend to retain wildlife management and environmental protection responsibilities post-settlement.


Mr. Kitigawa responded promptly and stated:

The wildlife management and environmental protection responsibilities will be spelled out in our Forest Management Agreement; however, we will endeavour to co-operate and consult with the Lubicon people prior to the planning and harvesting of the timber resources.

Chief Ominayak's response to this position was immediate and blunt. He wrote:


Apparently we failed to communicate adequately during our meeting on March 7, 1988.

....

As we told you during our meeting on March 7th, we don't intend to allow logging in our traditional area at least until our aboriginal land rights are settled ... Any effort to proceed with logging in our traditional area prior to settlement of our aboriginal land rights and/or negotiation of an appropriate agreement with us will be blocked - on the ground if need be.

The impasse reflected in this correspondence continued during the two years the mill was being constructed. There was still an impasse in the autumn of 1991 when the next important events took place.

[15] The Lubicon Cree was concerned that the company or its subsidiaries would log in its 'area of concern' in the 1991-1992 winter season. The Friends of the Lubicon, based in Toronto, kept in touch with the Lubicon Cree leadership. Ed Bianchi had noticed one day that a bag used at a store he visited was manufactured by Daishowa. This discovery was the germ of an idea, namely a possible boycott, but a boycott with a difference. The Friends decided that it would not be productive to picket the mill in Peace River or even the plant that manufactured the paper bags in Winnipeg. Such an activity would catch little public attention and could, therefore, be ignored by the company. However, a boycott of the consumers of Daishowa products might be a different matter; if enough consumers could be enlisted to stop using Daishowa products it might force Daishowa to think hard about whether to log in the Lubicon 'area of concern' before the aboriginal land rights of the Lubicon were settled.

[16] On November 6, 1991 Kevin Thomas wrote to Mr. Tom Hamaoka at Daishowa Canada Company Ltd. (in August, 1988 Mr. Kitigawa had become President of the parent company, Daishowa Forest Products Ltd.) This letter represented the first direct contact between Daishowa and the Friends. In his letter Mr. Thomas set out the commitment the Friends were seeking from Daishowa and presaged the Friends' plan if the commitment was not made. The letter reads in part:

We are writing to you today to inform you of our intentions vis-a-vis this impending crisis.

While you were willing to honour the March 7, 1988 agreement with the Lubicon Nation not to log in their territories until a settlement of their land rights was in place, we kept our energies directed at the federal government's refusal to resolve Lubicon land rights. However, you have flagrantly broken the terms of that agreement by planning the clear-cutting of Lubicon territories through your subsidiary Brewster Construction, making you an active agent in the destruction of the Lubicon peoples land and future.


We expect from you a clear, firm and public commitment to not cut and not to purchase any wood cut on unceded Lubicon territory until after a settlement of Lubicon land rights and negotiation of a harvesting agreement with the Lubicon people that takes into account Lubicon wildlife and environmental concerns. Until such time we are initiating a public boycott campaign of Daishowa products.

This campaign will encompass all Daishowa products which reach the public, including all paper products and chip board. We are currently negotiating with many of your clients who have shown an interest in the Lubicon Nation's concerns and are reconsidering their contracts with Daishowa.

[17] Indeed, the last sentence in this letter was particularly accurate. On the same day, the Friends sent letters to several of Daishowa's customers, including Pizza Pizza, Cultures and Ho-Lee Chow in Toronto and Knechtel Food Stores in Kitchener. The contents of these letters were identical; I set out the one to Pizza Pizza which was authored by Ed Bianchi:

On March 7, 1988 an agreement was made between the Lubicon Lake Cree Nation of northern Alberta and Daishowa, a multinational paper company. Part of this agreement stated that Daishowa would not begin clear-cutting Lubicon land until their land rights settlement has been negotiated. Daishowa has broken this agreement. As soon as the land freezes, Brewster Construction Company, a wholly owned subsidiary of Daishowa, will begin clear-cutting Lubicon land. This, as well as previous destruction of their land by government sponsored oil and gas development, will result in the cultural genocide of the Lubicon people.

The Canadian Peace Alliance has contacted you previously requesting that you stop using Daishowa paper products.

This letter serves as notice to you that a boycott of your company will be initiated unless we receive from you written confirmation by November 25, 1991 of your intention to stop using Daishowa paper products.

I look forward to hearing from you.

[18] On November 8, 1991 James Morrison, the General Manager of Daishowa's Edmonton office replied to Mr. Thomas' letter. This letter reads in part:

This is in reply to your letter to Mr. Tom Hamaoka dated November 6,1991. In recent weeks, Daishowa Canada has been attempting to dispel the negative effects of some of the misleading reports published in the press. Therefore, we have attached for your perusal a copy of Daishowa Canada's position paper which outlines the Company's efforts respecting the Lubicon situation.

You may not be aware that Daishowa Canada (and its subsidiaries) have elected to avoid the area of concern to the Lubicons this winter.

[19] Mr.Thomas wrote again to Mr. Hamaoka on November 10, 1991. Since this letter constitutes a detailed summary of the Friends' position and plans, and since it is the last communication between the Friends and Daishowa before the boycott started, I set it out in full:

We are in receipt of Mr. James P. Morrison's letter dated November 8, 1991, with the attached five-point "position paper" via fax. We appreciate the speedy reply.

Unfortunately, the matter is not resolved as of yet. In particular we have three main points which need to be clarified before we will consider disengaging our public action campaign.

1) In your point number 3, you make note of a legal obligation to purchase incidental aspen from independent sawmillers, farmers and loggers who have their own permits and quotas, and salvage aspen from other industrial activities, within the FMA area. If you are indeed legally obligated to do so, doesn't this contradict your promise not to accept this aspen. What is the province's position on this matter?

As people who have monitored your company's activities over the last few years, we haven't forgotten the awful tap-dance between Daishowa and the province of Alberta last winter when Daishowa first pushed forward its plans to break their March 7, 1988 agreement with the Lubicon Nation by beginning logging operations on unceded Lubicon territories. Faced with a possible confrontation on the ground and growing public outrage, Daishowa suggested on October 5, 1990 that they were abandoning logging plans for the winter, a decision which had to be approved by provincial Forestry Minister LeRoy Fjordbotten and Premier Don Getty. The provincial end of this "good-cop-bad-cop" combination refused to give Daishowa sub-contractors alternate sites for logging operations outside of unceded Lubicon traditional territories; so, on November 19, 1990, while Fjordbotten was saying that Daishowa subsidiary Brewster Construction would not be logging in "the area of concern", Brewster was already clear-cutting spruce and aspen in unceded Lubicon territories. In fact Buchanan Lumber Ltd. had been working on roads in the Lubicon area as early as October 29, having been "given the go-ahead" by provincial forestry officials. On November 14 Buchanan was actively logging and Brewster had bulldozed a couple of logging roads on Chief Bernard Ominayak's trapline east of Bison Lake.


2) The "area of concern to the Lubicons" you refer to throughout the document is never clearly defined. We are concerned with the ambiguity expressed. In fact, the very day you wrote us, the Edmonton Journal reported that Daishowa has been using faulty maps in a related dispute, despite having been provided with clear maps delineating the entire unceded Lubicon traditional territory. Any public commitment made by Daishowa Canada Co. Ltd. must include clear representation of the area covered by the agreement.

3) Most of the promises made in the enclosed "position paper" are quite clearly limited to this winter only. Does this mean that, barring a resolution of the Lubicon Lake Nation's land rights with both levels of government in the meantime, we have to repeat this scenario next year, and the year after that? Our position, as expressed to you in our letter of November 6, 1991, is that we expect Daishowa to make a clear, firm and public commitment to not cut and not to purchase any wood cut on unceded Lubicon territory until after a settlement of Lubicon land rights and negotiation of a harvesting agreement with the Lubicon people that takes into account Lubicon wildlife and environmental concerns. Mr. Hamaoka, principles are not a matter of convenience. This is a matter of the very survival of an aboriginal society and regardless of how long it takes to resolve the land rights of the Lubicon Nation it is still wrong to clear-cut in their unceded traditional territories before such a settlement is in place. It's wrong today and it will still be wrong tomorrow. If you sincerely wish to see justice done, no other position is tenable.

Your optimism concerning recent discussions with Tom Siddon is astounding. Mr. Siddon did little to justify the opinion that these talks "may lead to a resumption of their negotiations." In fact that meeting between Siddon and Ominayak had no real substance to it. For the record, Mr. Siddon told Edmonton Journal reporters that he was once again dusting off the federal government's unacceptable "take-it-or-leave-it"offer of January 1989, minus approximately 40% of the initial offer which has now been promised to the government-created Woodland Cree band. Perhaps Siddon felt that three years of government sponsored disruption of Lubicon society would have made them desperate enough to accept a clearly insulting offer. This hardly constitutes a healthy atmosphere for the resumption of negotiations - if anything it illustrates that the federal government is as low and untrustworthy as ever.

Which brings us to the primary issue at hand: trust. On what grounds should we trust another vague statement from Daishowa? In public and private statements over the past year your position has changed frequently and dramatically. For instance:

On March 7, 1988, at a meeting between Daishowa officials and Lubicon representatives, an agreement was made in front of witnesses that Daishowa would not log on unceded Lubicon traditional territories until a settlement of Lubicon land rights had been reached with both levels of government. Daishowa then moved to break that agreement last winter by commencing logging in unceded Lubicon territory through subsidiaries like Buchanan and Brewster.

In an April 12, 1991 letter to the chairperson of the Toronto-based Task Force on Churches and Corporate Responsibility, Daishowa General Manager of the Edmonton Corporate Office James P. Morrison claimed that "Daishowa at no time made a commitment to the Lubicon Band that involved their traditional territory". He suggested instead that the March 1988 meeting was held to explain to the Nation "the provisions contained in the proposed Forest Management Agreement" (between Daishowa and the Alberta Provincial Government).

In a meeting held on September 24, 1990 in the Lubicon settlement at Little Buffalo, Wayne Thorp and Tom Hoffman from Daishowa were asked about the agreement. Mr. Thorp said that "Daishowa is respecting that agreement, Daishowa is not logging in the Lubicon area." Stu Dornbierer of Daishowa clarified this position by saying "a distinction has to be made between Daishowa and these logging companies", referring to the Daishowa subsidiaries who were doing the dirty deed. On September 27 Mr. Akidat of Daishowa subsidiary Brewster Construction further mentioned the agreements, claiming that as a recently purchased subsidiary they didn't feel bound by it.

The next attempt to redefine the agreement came from James Morrison of Daishowa who said on November 17, 1990 that your agreement with the Lubicons provided only that you would stay out of unceded Lubicon lands until the Grimshaw accord was negotiated. The Grimshaw accord, as you recall, was an agreement on a proposed land base between Alberta premier Getty and the Lubicon Nation, negotiated in October 1988 after blockades were set up on Lubicon territories. This accord, however, could never have been anticipated in March 1988 when the Daishowa-Lubicon agreement was made. It had never even been proposed.

Later that same month Mr. Morrison reversed his claim and said for the first time that there had never been an agreement at all. This time he said you had met in March 1988 merely to talk about the state of Lubicon negotiations with the province. This is also noteworthy in that there were no negotiations with the province happening at that time.

Morrison contradicted himself again by falsely claiming that there was an agreement, but that it only applied to logging in new areas, and that the Lubicons had told Daishowa that Daishowa could continue to log in traditional logging areas. Two days later Daishowa publicly directed Buchanan to continue logging operations, breaking the former myth that Buchanan was an independent operator and thus not subject to the Daishowa agreement.

Most recently, James Morrison sent a letter on August 22 to a concerned Quebec citizen which resembled the position paper you sent to us. However in that position paper Morrison made it clear that while full-scale clear-cutting operations hadn't proceeded as planned last year, "further delays are no longer possible".

Does Daishowa rely on the short-term memories of the TV generation as a basis of its public policy? Or are you so sure that people won't compare your contradictory public statements that you feel free to change your position at your convenience? I'm sure by now you can see why nothing short of a clear, firm and public commitment of the sort we are demanding is acceptable. Without such a commitment, how can we be sure that Daishowa's position won't change again next week?

As we have stated in the past, until we see the aforementioned firm and public commitment from Daishowa which is acceptable to the Lubicon Nation, we will continue to mount a full-scale challenge to Daishowa's plans through a public boycott and action campaign. No doubt by now you will have heard from several of your many clients who have been contacted by us. Each day we are identifying and approaching new clients who are concerned with the issues being raised here. I believe it is in your best interests to make a commitment as soon as possible.

Daishowa did not respond to this letter.

[20] On November 11, 1991 the Friends issued a press release announcing a demonstration on November 14 outside Daishowa's Toronto office and suggesting that a boycott was imminent. On November 28 the Friends and other groups held a press conference in Ottawa. A press release on the letterhead of the Friends was released. It stated:

FOR IMMEDIATE RELEASE - NOVEMBER 28, 1991

Attention: NEWS DESK

RE: "STOP THE GENOCIDE, BOYCOTT DAISHOWA"

LEAFLETTING DEMONSTRATION BY FRIENDS

OF THE LUBICON

Saturday,November 30, 1991-12:00 to 3:00 p.m.

PIZZA PIZZA outlet at Yonge & Elm

Toronto, Ontario

Friends of the Lubicon (Toronto) will be demonstrating outside Pizza Pizza's store on Yonge Street, north of Dundas.

This demonstration is part of a growing international boycott of DAISHOWA paper products, in support of the Lubicon Cree Nation.

Some of the paper products that Pizza Pizza uses are from DAISHOWA. DAISHOWA is set to clear-cut Lubicon land in Northern Alberta.

This is an act of genocide against the Lubicon Cree Nation!

On March 7, 1988, DAISHOWA met with the Lubicon Cree and agreed NOT to cut trees on unceded Lubicon territory until a land rights settlement was negotiated. Daishowa now denies ever making such an agreement.

Up until a few years ago, the Lubicon were a self-reliant people who lived off the land. Federal and Alberta government supported oil and gas development, which began in the late seventies, devastated the traditional economy and lifestyle of the Lubicon by ruining the environment and driving away wildlife. Unbridled resource exploitation has forced 95% of the people on welfare, and now threatens to destroy the community.

All supporters, and members of the press are most welcome.

For more information, please contact Ed Bianchi at 783-4694.

[21] Pizza Pizza was chosen as the subject of the first public demonstration against a customer of Daishowa because it had refused to join the boycott as requested in Mr. Bianchi's letter of November 6. Approximately 10-15 Friends converged on a single Pizza Pizza store on November 30. They displayed a large banner; some of the Friends wore sandwich boards. They did not impede the entry of anyone into the store. According to Kevin Thomas, some people stopped to talk to the Friends. Some also talked to a representative of Pizza Pizza who was there. The Friends distributed leaflets to people who would accept them. The leaflets stated:

BOYCOTT

PIZZA PIZZA

THE PIZZA PIZZA CHAIN PURCHASES SOME OF ITS PAPER PRODUCTS FROM THE MULTI-NATIONAL PAPER COMPANY DAISHOWA.

On March 7, 1988, Daishowa met with the Lubicon Cree of Northern Alberta and agreed not to cut trees on unceded Lubicon territory until a land rights settlement was negotiated between the Lubicon and the Government.

Daishowa now denies ever making such an agreement, and is planning to clear-cut vast areas of Lubicon land.

THIS IS AN ACT OF GENOCIDE AGAINST THE LUBICON LAKE NATION

Up until a few years ago, the Lubicon were a self-reliant people who lived off the land. Federal and Alberta government supported oil and gas development, which began in the late seventies, devastated the traditional economy and lifestyle of the Lubicon by ruining the environment and driving away wildlife. Unbridled resource exploitation has forced 95% of the people on to welfare, and now threatens to destroy the community.

YOU CAN MAKE A CHANGE.

Make your voice heard! Help us put pressure on Daishowa to make a clear and public commitment to stay out of unceded Lubicon territory. Support the boycott of Pizza Pizza stores until they cancel their contracts with Daishowa.

For more info call Friends of the Lubicon at 783-4694

and

Write directly to Daishowa and ask them to deal fairly with the Lubicon people.

Mr. Tom Hamaoka,

Vice president,

Daishowa Canada Co. Ltd.,

3500 Park Place,

666 Burrard Street,

Vancouver, BC

V6C 2XB

(604) 689-1919 - fax (604) 689-2853

A second demonstration was held at nine Pizza Pizza stores in January 1992. Two Friends attended each store. There were no banners or placards on this occasion; however, leaflets were handed out to prospective customers.

[22] For three years, from late 1991 to late 1994, the Friends continued their boycott campaign. They approached about fifty companies which purchased Daishowa paper products. The pattern for engaging customers was consistent, with minor variations for some customers. Usually the first contact was a telephone call to the customer. Occasionally the first contact was by letter. This initial contact was followed by a package of material sent by a Friend to the customer. This package usually included Kevin Thomas' letter to Daishowa dated November 10, 1991, a five-page background paper prepared by the Friends which described events relating to the Lubicon Cree during the last half century, copies of Updates prepared by the Friends as the campaign progressed, letters from other Daishowa customers confirming that they were joining the boycott, and occasional press reports about the boycott. As well, the Friends would include in the package any information they received from Daishowa, such as Mr. Morrison's letter dated November 8, 1991 and the Daishowa position paper included with that letter. After the information package was sent, a Friend would follow-up by telephone or letter. The purposes of the follow-up were to verify that the customer had received the material, to invite discussion concerning its contents, to ascertain whether a decision had been made, and to inform the customer that a boycott would take place if the customer continued to use Daishowa products. If a customer agreed to discontinue use of Daishowa products, the Friends typically insisted on receiving a letter confirming this decision. They would then issue a press release announcing a new participant in the boycott. If the customer did not agree to join the boycott, its stores would be picketed in the hope that the store's customers, once informed of the fact that a store was purchasing paper products from Daishowa, would decide not to shop at the store, thus putting pressure on it to stop buying Daishowa products.

[23] Essentially, the Friends campaign against Daishowa was a simple two-stage campaign. The first stage was an approach to the direct customers of Daishowa with a request, coupled with the threat of a boycott, that they stop using Daishowa products. If this approach did not obtain the desired response, the Friends moved to the second stage, namely informational picketing at the stores of those Daishowa customers with a view to educating the customers of the customers of Daishowa about the Lubicon Cree situation and the perceived connection of Daishowa to that situation, and with a view to enlisting their support to persuade Daishowa's direct customers to change their minds.

[24] Daishowa did not stand idly by while all this was happening from 1991 to 1994. Daishowa Inc., the company that made the paper products in its Winnipeg plant, employed its senior management and its Ontario sales people in efforts to persuade stores not to sever their relationship with Daishowa. Morever, throughout these years, the senior management and public relations personnel of the parent company, Daishowa Forest Products Ltd., were deeply involved in trying to communicate Daishowa's position with a view to persuading customers to continue their economic relationship with Daishowa.

[25] The results of the Friends' campaign against Daishowa from 1991 to 1994 were, in a word, stunning. Approximately fifty companies which purchased paper products (mostly paper bags) from Daishowa were approached by the Friends. The list of these companies reads like a Who's Who of the retail and fast food industries in Ontario - Pizza Pizza, the Liquor Control Board of Ontario, Cultures, Country Style Donuts, Mr. Submarine, Bootlegger, A&W, Kentucky Fried Chicken, Woolworth's, Roots, Club Monaco, Movenpick Restaurants and Holt Renfrew, to name but a few. Every one of the companies approached by the Friends joined the boycott of Daishowa products. All but two did so at stage one of the Friends' campaign, that is before their stores were picketed. Some of the companies who joined the boycott did so willingly; they appeared to agree with the Friends' position and wanted to help. However, the vast majority of companies joined the boycott with great reluctance. They were satisfied with the Daishowa products, including quality, price and service, and would not have stopped using them but for the Friends' threat to proceed with stage two of the campaign, namely picketing outside their stores. Two companies, Pizza Pizza and Woolworth's , did not join the boycott at the first stage of the campaign. Pizza Pizza was subjected to picketing outside its stores on two occasions; Woolworth's had a single store picketed on two occasions. On the second occasion most of the small group of picketers dressed as trees; one picketer dressed as a chainsaw and moved among the trees. Both Pizza Pizza and Woolworth's joined the boycott.

[26] On January 11, 1995 Daishowa issued its Statement of Claim in this action. On March 20, 1995 the defendants filed their Statement of Defence.

[27] On February 6, 1995 Wright J. granted an interim injunction, on consent, restraining the defendants from engaging in boycott activities for a three-month period, from contacting Daishowa's customers and urging the general public not to deal with Daishowa's customers, and from picketing Daishowa's customers.

[28] On May 19, 1995 Daishowa sought an interlocutory injunction which would include the following - restraining unlawful interference with Daishowa's contractual and economic relationships through the use of unlawful means such as threats, intimidation and coercion, misinformation and defamatory statements and the threat of secondary picketing and secondary boycott of Daishowa's customers; restraining secondary picketing and unlawful secondary boycott of Daishowa's customers; and restraining the communication of untruthful and defamatory statements in the course of their unlawful secondary boycott of Daishowa's customers.

[29] Kiteley J. substantially dismissed Daishowa's motion: see Daishowa Inc. v. Friends of Lubicon (1995), 30 C.R.R. (2d) 26 (Gen. Div.). However, she did restrain the defendants from representing that an agreement was made in March 1988 between Daishowa and the Lubicon Cree Nation and that Daishowa had breached the agreement. She also restrained the defendants from making any reference to genocide in their communications.

[30] On appeal to the Divisional Court, Kiteley J.'s decision and order were overturned in a split decision, Corbett and McRae JJ. concurring, O'Leary J. dissenting: see Daishowa Inc. v. Friends of the Lubicon (1996), 27 O.R. (3d) 215 (Div. Ct.). The Divisional Court granted an interlocutory injunction restraining the defendants from intentionally interfering with Daishowa's contractual and economic relations by unlawful means, including picketing and threats of picketing aimed at customers. In addition, the more limited injunction granted by Kiteley J. remained in effect.

[31] On April 24, 1996, the Court of Appeal refused leave to appeal the Divisional Court Order. On June 19, 1997 the Supreme Court of Canada also refused leave. Accordingly, the Divisional Court Order remained in effect prior to and during the trial of this action.

[32] All of the above is a general, and essentially chronological, summary of the events that gave rise to this action. What is missing is any description and assessment of the evidence heard at the trial. Eighteen witnesses testified for the plaintiff; ten witnesses testified for the defendants. It will be necessary to consider some of that testimony when I consider the allegations of unlawful conduct made by Daishowa against the Friends.

LEGAL ISSUES

[33] The principal relief sought by the plaintiff is a permanent injunction restraining the defendants' conduct. In paragraph 1 of its factum Daishowa sets out its position in the following fashion:

1. The plaintiff (referred to as "Daishowa" which term shall also include other companies with the name Daishowa in their company name) seeks a permanent injunction restraining the defendant's conduct and that of all persons acting in concert with them or engaged in the common purpose of engaging in a boycott of Daishowa as follows:

(i) Restraining the picketing, or threatened picketing of the customers of Daishowa or the encouraging of consumers to boycott Daishowa's customers, in order to pressure, coerce or otherwise encourage these customers not to enter into, continue or renew contractual relationships with Daishowa;

(ii) Restraining unlawful interference with Daishowa's contractual and economic relationships through the use of threats, intimidation and coercion of Daishowa's customers, misrepresentation and defamatory statements;

(iii) Restraining the oral or written communication of the allegations that:

(a) Daishowa has committed, is committing, or intends to commit acts of genocide against the Lubicon Cree;

(b) Daishowa made an agreement with the Lubicon Cree in or about March 1988 not to log on lands claimed by the Lubicon until after a land rights settlement had been negotiated between the Lubicon Cree and the Federal Government and/or until after the negotiation

of an agreement between Daishowa and the Lubicon Cree with respect to wildlife management and environmental issues;

(c) Daishowa has breached such a March 1988 agreement or will be in breach if DMI conducts logging operations under its FMA on the land claimed by the Lubicon Cree as Lubicon traditional territory; and

(d) Daishowa has clear-cut "on Lubicon land" or is set to clear- cut "on Lubicon land".

In addition, the plaintiff seeks nominal damages of $1 on the basis that the defendants have demonstrated impecuniosity and would be incapable of paying any damage award.

[34] The plaintiff claims an entitlement to permanent injunctive relief on six bases:

(1) the tort of interference with economic and contractual relations, including inducing breach of contract;

(2) the tort of intimidation;

(3) the tort of conspiracy;

(4) the tort of misrepresentation;

(5) the tort of defamation; and

(6) the use and threatened use of unlawful means, including unlawful secondary picketing, watching and besetting, nuisance, injurious falsehood, as well as the aforementioned torts.

ANALYSIS

[35] I propose to consider the six bases on which the plaintiff seeks injunctive relief. I have decided to consider the sixth ground first. The plaintiff asserts that "the use and threatened use of unlawful means", especially secondary picketing, is a separate tort. However, the quoted words are also an individual component of some of the other torts that I must consider, including interference with economic interests, intimidation and conspiracy. Accordingly, it makes sense to discuss this claim first so that my conclusion with respect to it can be incorporated into my analysis of the other torts as required.


[36] Before turning to an analysis of the substantive torts, there are two preliminary matters worthy of brief comment.

Preliminary Issue 1 - Daishowa Corporate Structure

[37] The defendants directed their protest activities at Daishowa Inc., the subsidiary company which manufactures paper products at its Winnipeg plant. The FMA which gave logging rights in Alberta to land over which the Lubicon Cree Nation

asserts aboriginal rights was granted to Daishowa Canada Company Ltd. In 1992 the FMA was transferred to Daishowa-Marubeni International.

[38] Daishowa Inc. manufactures and sells paper products. The Peace River mill, operating under two Daishowa corporate structures since the late 1980s (but neither being Daishowa Inc.), manufactures paper which is sold to customers who then make paper products. Interestingly, the paper from the Peace River mill is not used by the Daishowa Inc. plant in Winnipeg.

[39] This absence of a product link between the Peace River mill and the Winnipeg plant led the plaintiff to take the position in some of the preliminary legal skirmishing before the trial that the defendants had targeted the wrong company. At the trial this point receded into obscurity, properly so in my view. It is clear from the evidence that Daishowa holds itself out as a single corporate entity in Canada. Its paper products were marked with the single word 'Daishowa'. Moreover, the first correspondence with the defendants, a letter dated November 8, 1991, came from Daishowa Canada Co. Ltd.; it referred globally to 'Daishowa Canada' and it enclosed 'Daishowa Canada's position paper'. Furthermore, throughout the boycott and this litigation some of the principal participants (e.g. Mr. Kitigawa, Mr. Hamaoka) on Daishowa's side have not been employees of Daishowa Inc. As well, some of the internal Daishowa corporate documentation, and Mr. Kitigawa's testimony, establish that major decisions require approval from the Daishowa head office in Japan. In short, although Daishowa was at liberty to choose Daishowa Inc. as the plaintiff in this action, that choice cannot obscure the fact that it is Daishowa Inc.'s corporate connection to other components of Daishowa, especially those which hold the FMA in Alberta, which led the Friends to target Daishowa Inc. as the subject of the boycott.

Preliminary Issue 2 - Decisions of Kiteley J. and the Divisional Court

[40] Both Kiteley J. of this court and three judges of the Divisional Court made major decisions at earlier stages of this litigation. Kiteley J. in this court, and Corbett J. and O'Leary J. in the Divisional Court, wrote extensive reasons in support of their decisions. Not surprisingly, counsel before me relied on the actual decisions, and pointed to parts of the reasons which they hoped I would find particularly persuasive. The word 'bound' crept into those submissions.

[41] I think it important to state explicitly that, in my view, the context within which I must decide this action is very different from the context within which Kiteley J. and the Divisional Court made their decisions. Those courts were dealing with only affidavit evidence. The record before me, on the other hand, consists of the testimony of twenty-eight witnesses and eighty-two exhibits containing perhaps 1000 documents. The trial lasted twenty-eight days. Moreover, the principal legal issue in this action is the remedy of a permanent injunction which, obviously, was not before the courts which made the earlier decisions. In my view, the remedy of a permanent injunction is qualitatively different than interim or interlocutory remedies; hence the legal analysis must also be different in important respects.

[42] Finally, I note that any fair reading of the reasons of Kiteley, Corbett and O'Leary JJ. leads to this conclusion: the views concerning the evidence before them and concerning the law of, on the one hand, Kiteley and O'Leary JJ., and of, on the other hand, Corbett and McRae JJ., are radically different.

[43] For these reasons, the remainder of my reasons will focus on the interpretation and application of the leading authorities, especially those of the Supreme Court of Canada and the Ontario Court of Appeal. I will not refer, favourably or unfavourably, to the decisions of Kiteley J. and the Divisional Court.

(1) Unlawful secondary picketing

[44] Daishowa has refused to give the Friends what they have been seeking since November 6, 1991, namely "a clear, firm and public commitment to not cut and not to purchase any wood cut on unceded Lubicon territory until after a settlement of Lubicon land rights and negotiation of a harvesting agreement with the Lubicon people that takes into account Lubicon wildlife and environmental concerns". (see Thomas-Hamaoka letter, November 10, 1991).

[45] In response to Daishowa's refusal to make this commitment, the Friends have engaged at various times in picketing activities outside Daishowa's corporate office in Toronto and its paper products manufacturing plant in Winnipeg. Daishowa does not contest the Friends' legal right to engage in such activities. Daishowa says that if the Friends have a dispute with its corporate practices, the Friends are entitled in law to convey their message to Daishowa at its business locations. Daishowa does not oppose, in labour law parlance, primary picketing of its business sites.

[46] However, the Friends have not limited their protest activities to primary picketing. They have taken their message to Daishowa's customers, the many companies in Ontario which buy paper products from Daishowa. The Friends have approached those companies, by personal visits, telephone calls and letters. Their message to these customers has been simple: please stop using Daishowa paper products in your business because of the effects of Daishowa's corporate activities on the Lubicon Cree in Alberta. If the customer agreed with this request the Friends would take no further action. However, if the customer refused to discontinue its use of Daishowa products, the Friends would take their campaign one step farther. They would personally attend at the customer's stores and engage in informational picketing. Their goal at this second stage would be to educate the customers of the customers of Daishowa about the plight of the Lubicon Cree and the perceived connection of Daishowa to that plight with a view to enlisting their support to persuade Daishowa's direct customers to change their minds. To illustrate by example, if Pizza Pizza refused the Friends' direct request that it stop using Daishowa paper products, the Friends would picket Pizza Pizza outlets in hopes that the customers of Pizza Pizza would persuade it, by not buying pizzas, to change its mind.

[47] I have serious doubts about using the phrase 'secondary picketing' to describe the second stage of the Friends' campaign. The friends are engaged in a consumer boycott, not a labour dispute. Their campaign is divorced from personal economic interests, whereas economic interests are usually the raison d'etre of picketing and boycott activities in a labour dispute. Moreover, the primary/secondary distinction has been criticized even in the labour context. In Brotherhood of Railway Trainmen v. Jacksonville Terminal Co., 89 S. Ct. 1109 (1969), Harlan J. said, at p. 1120:

No cosmic principles announce the existence of secondary conduct, condemn it as evil, or delimit its boundaries. These tasks were first undertaken by judges, intermixing metaphysics with their notions of social and economic policy. And the common law of labour relations has created no concept more elusive than that of "secondary" conduct; it has drawn no lines more arbitrary, tenuous, and shifting than those separating "primary" from "secondary" activities.

In my view, the use of the phrase 'secondary picketing' in a non-labour context is even more "arbitrary, tenuous, and shifting" than it is in a labour context. The use of this terminology in a non-labour context was recently considered in this court in Ontario (Attorney General) v. Dieleman (1994), 117 D.L.R. (4th) 449 (Gen. Div.). In that case the issue was whether picketing of doctors' offices and homes by protesters against abortion was unlawful. Adams J. declined to use the phrase 'secondary picketing' to describe the protesters' activities. After discussing the labour law pedigree of the primary/secondary distinction, Adams J. continued, at p. 678:

In my view, this approach to labour relations has no application to the picketing and protest activity at the clinics. I agree with Kelly J. in Halifax Antiques Ltd. v. Hildebrand, supra, who, after a thoughtful discussion of American and Canadian authorities, concluded that peaceful non-labour related picketing is not properly subject to secondary picketing analysis: see at p. 297. See also Canada Dairies Ltd. v. Seggie, supra, and Williams v. Aristocratic Restaurants (1947) Ltd., supra.

As I understand the interveners' argument, the primary relationship is between the defendants and the government, on the theory that the defendants wish a change in the law. The clinic and the doctors are argued to be secondary targets. This, however, is an entirely arbitrary classification of the parties caught up in the "abortion debate". While differences exist between picketing at an abortion clinic or a hospital (i.e., the sites where abortions are performed), and picketing at a doctor's office or at a doctor's home, even these differences are much less pronounced than the "primary/secondary" distinction in labour law, a distinction which arises from the structure of an employment relationship. "Political protestors" will often have multiple targets for their messages because of their multiple purposes. They may wish to affect conduct, change attitudes and promote legal change. A prima facie case of secondary picketing has not been established.

[49] I agree with Harlan J's and Adams J's observations. They persuade me that the label 'secondary picketing' should not be used to describe the Friends' activities in this case. I prefer to use the single word 'picketing' to describe their activities so as to avoid the overlay, mostly negative, that the word 'secondary' might inject into the legal analysis.

[50] The choice of terminology does not conclude the matter. Daishowa's complaint is with the Friends' conduct, however it is labelled. Daishowa contends that the Friends' picketing and boycott activities directed at the customers of the customers of Daishowa (e.g. directed at the purchasers of pizzas from Pizza Pizza which in turn buys its paper bags from Daishowa) is unlawful. It articulates this contention in a lucid and sophisticated fashion at paragraph 83 of its factum:

The common law prohibition against secondary picketing of customers in order to force them to stop dealing with the primary target of the picketers, aims to strike a balance between the rights of protesters to express their views by, for example, directly picketing parties with whom they have a legitimate dispute and the right to pursue one's legitimate economic interests without unlawful interference. Our courts have long recognized and still recognize that the act of picketing involves more than the dissemination of information but, rather, that it aims to send a "strong and automatic signal" and to create a barrier which people often refuse to cross regardless of their views. The law's policy of pursuing the balance between the right to picket and other interests applies to all disputes, regardless of whether they might be characterized as "labour" "social", "economic", or "political". The freedom to pursue one's economic interest is a value to be considered just as much as other values, such as the right to protect one's reputation, which must be balanced in the private law context against the values embodied in the Charter.

[51] In support of this analysis, Daishowa relies principally on cases dealing with secondary picketing in a labour relations context and submits that the reasoning in those cases applies to the Friends' consumer picketing and boycott activities.

[52] The first and most important case cited by Daishowa on the picketing issue is Hersees of Woodstock v. Goldstein, [1963] 2 O.R. 81 (C.A.). Daishowa relies heavily on this case because, as it puts it at paragraph 76 of its factum, "the Ontario Court of Appeal clearly established that the common law of Ontario prohibits secondary picketing as does the common law of other Canadian jurisdictions."


[53] In Hersees, a retail store was picketed by a union for buying clothing products from a manufacturer which did not employ union labour. Thus the chain of connection was union-retailer-manufacturer. The Court of Appeal concluded that the union's picketing activity was unlawful for several reasons. Three of the reasons are found in the judgment of Aylesworth J.A.; they have anchored the jurisprudence relating to secondary picketing in a labour relations context for several decades, not just in Ontario but in other common law jurisdictions as well.

[54] The first of these reasons is what has come to be known as the 'signalling' effect of picketing. As expressed by Aylesworth J.A. at p. 85:

In this day and age the power and influence of organized labour is very far indeed from negligible. "Loyalty to the picket line" is a credo influencing a large portion of any community such as the City of Woodstock with its own District Labour Council and numerous member unions ... [T]he employees of more than one employer whose premises had been picketed refused out of "loyalty to the picket line" to cross that line. In this and in several other cases in Canadian Courts judicial notice has been taken of "the rule" so far as employees are concerned.

[55] The second reason has come to be identified as the 'neutrals' argument, namely that secondary picketing implicates third parties in a dispute that is not theirs. As expressed by Aylesworth J.A., at p. 85:


[D]oubtless for many private citizens not directly interested in the labour movement the presence of pickets before business premises is a powerful deterrent to doing business at those premises.

[56] The third reason for restraining secondary picketing is that it can have a substantial detrimental effect on a business. On that point, Aylesworth J.A. said, at p. 86:

But even assuming the picketing carried on by the respondents was lawful in the sense that it was merely peaceful picketing for the purpose only of communicating information, I think it should be restrained. Appellant has a right lawfully to engage in its business of retailing merchandise to the public. In the City of Woodstock where that business is being carried on, the picketing for the reasons already stated, has caused or is likely to cause damage to the appellant. Therefore, the right, if there be such a right, of the respondents to engage in secondary picketing of appellant's premises must give way to appellant's right to trade; the former, assuming it to be a legal right, is exercised for the benefit of a particular class only while the latter is a right far more fundamental and of far greater importance, in my view, as one which in its exercise affects and is for the benefit of the community at large.

[57] In recent cases, some Canadian courts have articulated a fourth reason for prohibiting secondary picketing in a labour context, namely that such activity has as its primary objective the infliction of economic harm on a business rather than the dissemination of information about the labour dispute. For example, in a thorough and thoughtful judgment in K Mart Canada Ltd. v. U.F.C.W., Local 1518, (1995), 14 B.C.L.R. (3d) 162 (B.C.S.C.), Huddart J. stated, at p. 191:

Expressive activities such as press releases, letters to affected third parties, television or newspaper advertisements, leaflets distributed at support rallies or in the neighbourhood, or left on cars in mall parking lots, are not prohibited as picketing. They may be intended to have an economic purpose, but they can be seen as primarily informational. But ... leafleting overtakes the informational purpose.

See also: Allsco Building Products Ltd. et al v. United Food and Commercial Workers International Union, Local 1288P, (1987), 149 D.L.R. (4th) 326 (N.B.C.A.).

[58] The question which must be considered in this trial is whether the reasons in favour of the prohibition against secondary picketing in a labour relations context support a prohibition against picketing in a consumer boycott context. In my view, they do not. I will consider each of the four reasons in turn.

[59] The 'signalling' reason is, in my view, distinctively located in its labour relations context. In B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, Dickson C.J. said, at p. 231:

Picketing sends a strong and automatic signal: do not cross the line lest you undermine our struggle; this time we ask you to help us by not doing business with our employer; next time, when you are on strike, we will respect your picket line and refuse to conduct business with your employer.

[60] The Friends do not have any kind of similar relationship with the customers they try to persuade not to purchase Daishowa products. Nor do they have the power or clout of the organized union movement. Any community of interest with Daishowa's customers at such places as a Pizza Pizza outlet will be established solely by the content of their message and the means by which they convey it.

[61] The 'neutrals' reason is also grounded, in my view, in the highly specific exigencies of a labour dispute. In RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, McIntyre J. engaged in an extensive analysis of the 'neutrals' reason. He said, at pp. 590-91:

From the evidence, it may well be said that the concern of the respondent is pressing and substantial. It will suffer economically in the absence of an injunction to restrain picketing. On the other hand, the injunction has imposed a limitation upon a Charter freedom. A balance between the two competing concerns must be found. It may be argued that the concern of the respondent regarding economic loss would not be sufficient to constitute a reasonable limitation on the right of freedom of expression, but there is another basis upon which the respondent's position may be supported. This case involves secondary picketing - picketing of a third party not concerned in the dispute which underlies the picketing. The basis of our system of collective bargaining is the proposition that the parties themselves should, wherever possible, work out their own agreement ....

It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, a legislative weapon to be employed in a labour dispute by the employees against their employer, it should not be permitted to harm others.

[62] There is no collective bargaining relationship between the Friends and Daishowa. The Friends do not meet Daishowa on the stage of economic self - interest, and in the context of a continuing, and regulated, relationship. Rather the Friends have identified what they perceive to be an important social and political issue - the plight of the Lubicon Cree. They believe that Daishowa's corporate activities have contributed, and will continue to contribute, to the worsening of that plight. Accordingly, they speak to Daishowa and ask it to change its conduct.

[63] However, the Friends have not limited their message to Daishowa. In Dieleman, supra, Adams J. said that political protestors :"will often have multiple targets for their messages because of their multiple purposes". (p. 678). The Friends have multiple purposes in their campaign in support of the Lubicon Cree - they try to educate the public, persuade governments to change their policies, and dissuade Daishowa from logging on land the Lubicon believes belongs to them. With respect to this last purpose, the Friends speak directly to Daishowa. However, since the Friends are themselves consumers of Daishowa products they also take their message to their fellow consumers, both corporate (e.g. Pizza Pizza) and individual (e.g. fellow purchasers of Pizza Pizza products placed in Daishowa bags). In doing this, the Friends' message is not: we are engaged in a personal economic dispute with Daishowa; please help us. Rather, the essence of their message is: we, like you, are consumers of Daishowa products; on an important political and social issue Daishowa has taken a position that is detrimental to some of the poorest citizens in Canada; please, join us in communicating to Daishowa that we will not continue as customers if it does not change its position.

[64] The third reason for restraining picketing in Hersees and other labour cases is its detrimental effect on business. In the passage from Aylesworth J.A.'s judgment set out earlier, he refers explicitly to a 'right to trade'. Moreover, he states that this right "is for the benefit of the community at large" and contrasts it with the union's speech through their picketing which he describes as being "exercised for the benefit of a particular class only."

[65] Without quarrelling with the ratio of Hersees and its continuing applicability in cases dealing with secondary picketing in a labour relations context, it strikes me that this component of Aylesworth J.A.'s reasoning is anachronistic today. The fact that freedom of expression is protected in the Charter of Rights and Freedoms, coupled with the absence of any economic rights, except for mobility to pursue the gaining of a livelihood, in the same document, is a clear indication that free speech is near the top of the values that Canadians hold dear. As expressed by MacIntyre J. in Dolphin Delivery, supra, at p. 583:

Freedom of expression . .. is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

[66] Additionally, even if one accepts Aylesworth J.A.'s description of unions as representing "a particular class only", namely their own membership interested in their own economic well-being, this description does not apply to the Friends. They are interested in an issue, the plight of the Lubicon Cree, that presents an amalgam of historical, political, social, economic and even moral factors. The plight of the Lubicon is precisely the type of issue that should generate widespread public discussion. Moreover, there is not one penny of economic self-interest in the Friends' campaign.

[67] The fourth reason for the prohibition against secondary picketing in the labour cases is that the primary purpose of the picketing is the infliction of economic harm on an employer, rather than the dissemination of information about the labour dispute. This reason makes sense in the context of a direct dispute between employers and employees over economic issues against the backdrop of a collective bargaining regime that creates, at least on paper, a balance of power between the two disputants. In that context, the parties must fight each other with their own economic weapons; they should not be able to engage unwilling third parties in the dispute. Secondary picketing during a labour dispute falls into the category of one party trying to employ an additional economic weapon (and one not its own) in its pursuit of its own economic interests. As expressed by Huddart J. in K Mart, supra, at p. 191:

The purpose of consumer leafleting cannot be separated from the interest of the Union in pursuing it. Here the Union's interest is exactly the same as that of a conventional picket line, to put economic pressure on the primary employer to resolve the dispute.

[68] The consumer picketing and related activities conducted by the Friends simply do not fit within this description. There is no question that the picketing constitutes expression: see Dolphin Delivery, supra, at pp. 586-88. But what kind of expression?

[69] The Friends say that their picketing activities at the business locations of Daishowa's consumers is speech concerning public affairs. I agree. The essential subject matter of everything the Friends say and do is the plight of the Lubicon Cree in Alberta. There can be little doubt that their plight, especially in recent years, is a tragic, indeed desperate, one. The compelling testimony of Chief Bernard Ominayak painted a vivid picture of the disintegration of a proud people who had lived successfully and prospered, on their own terms, for centuries. The loss of a traditional economy of hunting, trapping and gathering, the negative effect of industrial development on a communal spirituality anchored in nature, the disintegration of a social structure grounded in families led by successful hunters and trappers, alcoholism, serious community health problems such as tuberculosis, and poor relations with governments and corporations engaged in oil and gas and forest operations on land the Lubicon regard as theirs - all of these have contributed to a current state of affairs for the Lubicon Cree which deserves the adjectives tragic, desperate and intolerable.

[70] Chief Ominayak described in detail the complex and troubling relationship between the Lubicon Cree and resource companies. He testified (Transcript, pp. 28-29):

But my experience in dealing - in dealing with the non-native society, not as a whole, but most of the people that are in, say, the oil and gas development, and the other people who are interested in the resources, whether it be oil, gas, or now, you know, we're getting into diamonds, they've found diamonds in our area, or the logging people, is that they don't - they want to come in, exploit the resource as fast as they can, and don't have any regard to the environment or to the land, to the animals, to the trees.

And it's something that I don't think a lot of our people can accept, even to this day, where, because we were so dependent on the land that everything we done, we had to protect and preserve as much as we could in order to have something for tomorrow.

And the kind of rapid pace that is taking place all throughout just about the whole traditional area now is that there has been excessive destruction by way of, say, roads, pipelines. Lot of it has to do with the oil and gas exploration. A lot of the land, a lot of the area that we've preserved and lived off for many, many generations is just being eroded every year as we - as we get into these things.

So those are the kinds of - you know, at the outset, the kinds of differences from our people versus the people coming in from outside and trying to take the resources.

[71] Archbishop Edward Scott, the retired leader of the Anglican Church of Canada and a man who has made an impressive lifelong contribution to social justice issues in Canada and abroad, testified about the profound connection between nature and spirituality for the Lubicon people. He said that the Lubicon see themselves as in nature, not over nature. The activities of governments and corporations in recent years, with an emphasis on resource exploitation and economic gain, challenge the core of the Lubicon's spirituality.

[72] I cite these brief examples from the testimony of witnesses like Chief Ominayak and Archbishop Scott not because I have concluded that they are true. It is impossible, and would therefore be wrong, for a judge sitting in a Toronto courtroom, even one who heard twenty-eight days of testimony, to reach any firm conclusions about why the Lubicon Cree is in such a sad situation in 1998. It would especially be wrong to lay blame on anyone for the current situation. To be specific, I do not say a single negative word about Daishowa's past conduct or future plans for the forest lands within their FMA.

[73] The reason I cite brief portions of Chief Ominayak's and Archbishop Scott's testimony is that it establishes clearly that the situation of the Lubicon is a complex and important amalgam of historical, political, social, cultural, religious and economic issues. It is this amalgam that the Friends' activities seek to address. It follows that the expression engaged in by the Friends relates directly to a very important public issue. As such, it deserves respect, protection and a forum. It is precisely the type of expression that the Supreme Court of Canada has declared as lying at the heart of the fundamental freedom protected by the Charter: see, for example, Dolphin Delivery, supra; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; and Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139.

[74] Daishowa's response to the Friends' submissions grounded in the principle of freedom of expression on important public issues is that the Friends' message is really an economic message. It is intended to be, and is perceived by most of its recipients as, blunt dissuasion from purchasing Daishowa products.

[75] I agree that the Friends' message has a strong and direct economic content. The message is in part an exposition of a public issue and a critique of Daishowa's role with respect to that issue. The message is also a vigorous attempt to persuade Daishowa to change its position. However, the message goes even farther - it invites consumers of Daishowa products to become informed about Daishowa's position and to participate in the debate on the issue by refusing to purchase Daishowa products unless Daishowa changes its position. In short, an important part of the Friends' message, and certainly the most effective part, is the attempt, through speech in a picketing context, to enlist consumers in a boycott of Daishowa products.

[76] Is there anything unlawful about such a consumer boycott? And do those who conceive and organize it violate any law? I think not.

[77] One of the interesting and, to some, surprising results in the early Charter jurisprudence was the decision by the Supreme Court of Canada to protect what is loosely called 'commercial speech', that is speech focussed on an economic issue. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, the Court said, at p. 764:

The post-Charter jurisprudence of this Court has indicated that the guarantee of freedom of expression in s. 2(b) of the Charter is not to be confined to political expression. In holding, in RWDSU v. Dolphin Delivery Ltd. ... that secondary picketing was a form of expression within the meaning of s. 2(b) the Court recognized that the constitutional guarantee of freedom of expression extended to expression that could not be characterized as political expression in the traditional sense but, if anything, was in the nature of expression having an economic purpose.

See also: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.

[78] One of the consequences of decisions like Ford and Irwin Toy is that corporations have a constitutionally protected right to try to persuade people to purchase their products. Moreover, for the most part, they do this entirely in a context of economic self-interest - they want to make a profit through the sale of their products.

[79] If the great principle of freedom of expression protects a corporation, say Daishowa, whose simple message is: "Here is why you should buy our products", then is there any reason why the same principle should not protect a small group of consumers of Daishowa products, say the Friends, from saying to fellow consumers: "Here is why you should not buy Daishowa's products"? In my view, the answer is clear; there is no reason, in logic or in policy, for restraining a consumer boycott.

[80] Indeed, the argument for protection of the expression of the consumers is perhaps even the better one. The corporation's expression is almost always entirely economic; it is designed to promote its own economic interests and, inevitably, to harm the economic interests of competitors. There is no 'public issue' context within which most of a corporation's expression will operate. Nike hires Tiger Woods to speak on its behalf because it wants to make money and harm Adidas and Reebok. Roots hires Ross Rebagliati because it wants to sell more winter jackets and hats, and hopes that Sporting Life's sales of the same items will decline. There is nothing unlawful about any of this - the attempt to persuade people to purchase your product, and a concomitant attempt, either explicit (e.g. negative advertising) or implicit, to dissuade people from purchasing a competitor's product, is entirely an economic message and entirely a lawful form of expression.

[81] The Friends' message has a similar starting point. It is, as Daishowa asserts, a message with a negative economic content; it says bluntly to the public "Do not buy Daishowa's bags". However, there is no economic self-interest in the Friends' message; they do not add as a reason "because we have better or less expensive bags to sell". Rather, the economic component of the Friends' message is anchored in the same foundation as all of its activities, namely an attempt to focus public attention on a public issue, the plight of the Lubicon, and Daishowa's alleged connection to that issue.

[82] For these reasons, my conclusion is that if the Canadian Constitution protects a corporation's expression where the context is largely economic, and where one of the consequences of the expression, if accepted by the listener, might well be economic harm to competitors, then the common law should not erect barriers to expression by consumers where the purpose and effect of the expression is to persuade the listener to use his or her economic power to challenge a corporation's position on an important economic and public policy issue. The plight of the Lubicon Cree is such an issue, as is Daishowa's connection to it.

[83] I make one final observation on this aspect of the case. Consumer picketing and boycott activities cannot operate in a completely unfettered fashion. There are important procedural limitations which must be respected. Picketing cannot be accompanied by violence, assaults or destruction of property: see Dolphin Delivery, supra, at p. 588. It cannot intrude into legitimate privacy interests; for example, picketers cannot bring the public expression of their views to the private residences of those on the other side: see Dieleman, supra, at pp. 741-44.

[84] The Friends' picketing and boycott activities do not run afoul of any of these procedural constraints. The picketing takes place on public property. The number of picketers is small. They communicate their message in a courteous fashion. They do not attempt to stop anyone from communicating a different message. They do not impede access to the store being picketed. On this point, I can observe, as did Neil L.J. in Middlebrook Mushrooms Ltd. v. T.G.W.U., [1993] I.C.R. 612 (Eng. C.A.), at p. 620:

In the present case it is an important fact that the suggested influence was exerted, if at all, through the actions or anticipated actions of the third parties who were free to make up their own minds.

In short, the manner in which the Friends have performed their picketing and boycott activities is a model of how such activities should be conducted in a democratic society.

[85] There are also substantive limitations on what consumers can say while picketing and boycotting a business. They cannot induce people to breach contracts with the business. They cannot tell lies about the business.

[86] Daishowa contends that the Friends have engaged in such unlawful conduct in their campaign. I turn to a consideration of these contentions, which are grounded in the contents of the Friends' communications.

(2) The tort of interference with economic and contractual relations, including breach of contract

[87] In its factum, the plaintiff treats the tort of interference with economic interests as separate from, albeit closely related to, the narrower tort of inducing breach of contract. I agree with this treatment, and will consider the torts separately.

(a) Interference with economic interests

[88] The tort of interference with economic interests finds its anchor in the Canadian jurisprudence in the decision of the Supreme Court of Canada in International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 65. In that case the Court held that in order for the tort to be made out the plaintiff must establish three propositions - first, the defendant had an intention to injure the plaintiff; second, the plaintiff suffered economic loss or related injury as a result of the defendant's conduct; and third, the means employed by the defendant were unlawful.

[89] I note at the outset that the third of these factors covers exactly the same ground as the sixth basis for the plaintiff's claim in this action - namely, Athe use and threatened use of unlawful means." Since I have decided that none of the means employed by the Friends in their campaign, including picketing, was unlawful, it follows that the plaintiff cannot succeed in its claim against the defendants grounded in the tort of interference with economic interests.

(b) Inducing breach of contract

[90] For more than a century and a half the common law has recognized the tort of intentionally inducing or procuring a breach of contract: see Lumley v. Gye (1953), 118 E.R. 749 (K.B.), and J.L. Stratford & Son Limited v. Lindley, [1964] 3 W.L.R. 541 (H.L.); for a recent discussion in a non-labour picketing context see Dieleman, supra, at pp. 674-75.

[91] In order to make out the tort of inducing breach of contract the plaintiff must establish five propositions - first, the existence of a valid and enforceable contract; second, awareness by the defendant of the existence of the contract; third, breach of the contract procured by the defendant; fourth, wrongful interference; and fifth, damage suffered by the plaintiff.

[92] In my view, the plaintiff has failed entirely to establish the first proposition. Like Adams J. In Dieleman, I can say (p. 674): "The record before me does not disclose either the existence or the terms of contracts".

[93] Indeed, most of the evidence before me strongly points the other way. Witness after witness called by the plaintiff testified that his or her company's relationship with Daishowa was not a contractual relationship and that when the company ceased doing business with Daishowa it did not breach any contract.

[94] Marc Robitaille, the President of Omniplast, a distributor of Daishowa products to other companies, testified that those companies could "walk away" from their relationship. Suzanne CotJ, a buyer for Bowring's, stated that Bowring's had "no contractual obligation" to purchase Daishowa products; indeed Bowring's made its decisions on the basis of a tendering process every 12-18 months. Norma Lynn Jolliffe, the Chief Financial Officer for Holt Renfrew in 1994, testified that there was "no agreement with Daishowa". Fern Lukofsky, an account executive with Progress Packaging, another distributor of Daishowa products, said that although Daishowa had long-term relations with many of its customers, those customers had "no contractual obligation" to buy Daishowa products. Peter Mertens, the Executive Vice President of Country Style Donuts, stated that his company was "not contractually bound to Daishowa; it was a matter of choice". Tony Cooper, the Director of Food and Beverages for Movenpick Restaurants, said that he purchased paper products on the basis of an annual tendering process. Harry Ribkoff, a purchasing agent for Woolworth's, testified that Woolworth's "did not breach our obligations" to its distributors when it decided to abandon Daishowa. Michael Overs, the founder and Chairman of Pizza Pizza, testified that "we did not breach any contract; there wasn't any contract."

[95] The consistent testimony of Daishowa's distributors and customers on this point is echoed by the testimony of Daishowa's own employees. Gordon Bunt, the General Manager of the Packaging Division of Daishowa (who, I might add, impressed me very much as a witness and as a manager very concerned about his co-workers and his customers), testified that Daishowa's arrangements with customers are open-ended; accordingly, there is no breach of contract if a customer decides not to renew previous orders. He also testified that all of the customers which left Daishowa fulfilled their obligations with respect to their existing inventory of Daishowa products. Karen Winter, a Daishowa sales representative in Ontario, stated that "there are no fixed contracts with customers." Jack Love, the other Daishowa sales representative in Ontario, said that there are "lots of competitors" in the paper products industry and, therefore, Daishowa has "basically a handshake agreement with its customers."

[96] My conclusion is that there is overwhelming evidence to support the conclusion that there were no contractual relations between Daishowa and its distributors and customers. It follows that there is no need to consider the plaintiff's alternative argument on this point, namely that interference with a contract or existing contractual relationship which falls short of causing an actual breach but results in the untimely conclusion of relations is nonetheless actionable. The distinction between actual breach and near breach is irrelevant if there is no contract in play.

[97] In light of my conclusion that the plaintiff has not established the first component of the tort, it is not necessary, strictly speaking, to consider the other components. However, I would like to make one observation about the third component of the tort, breach of contract procured by the defendant. It is true that in its early material, including letters to customers and leaflets distributed to the public, the Friends called on Daishowa customers to "cancel their contracts with Daishowa". However, quite early in the boycott, the Friends, none of whom had legal training, were informed by a customer that it would be unlawful to cancel an existing contract. Accordingly, the Friends changed the wording of their communications to make it clear that what they sought was a decision by a customer to discontinue its relationship with Daishowa after existing legal obligations, if any, had ceased. With one exception, a 1994 leaflet announcing a demonstration to put pressure on Holt Renfrew to "[cancel] their contracts for Daishowa bags", the language of 'cancel your contracts' disappeared from the Friends' campaign. Both Mr. Thomas and Mr. Bianchi admitted during their testimony that this language was incorrect and that, once they realized this, they took steps to remove it from their communications. The steps they took appear to have been successful, with the one unexplained exception in 1994. In short, by the time this action was launched in 1995, the 'inducing breach of contract' claim was, in real terms, stale.

[98] For these reasons, I conclude that the plaintiff has not succeeded on its claim that the defendants committed the tort of inducing breach of contract.

(3) The tort of intimidation

[99] Intimidation was recognized as a distinct and separate economic tort in the famous case Rookes v. Barnard, [1964] 1 All E.R. 367 (H.L.). Several Canadian courts have accepted and applied this decision: see Fridman, The Law of Torts in

in Canada, Vol. 2, pp. 279-89.

[100] In his text, Professor Fridman sets out the components of the tort in a three-party situation (the situation in this case: Friends - alleged intimidation; consumers of Daishowa - alleged recipient of threats; Daishowa alleged victim) in this fashion, at p. 286:

The requirements of liability in three-party intimidation where the intimidation threatens X who acts in a manner that is harmful to the plaintiff, are the same as those which are relevant in two-party situations. The defendant must threaten X, by means of a threat to do something unlawful; he must have the necessary intent; he must cause the harm in question by making X act in the desired way; and the threat must be unlawful.

[101] The plaintiff asserts that the unlawful threat in this case is the Friends' threat to engage in the unlawful conduct of secondary picketing, secondary boycott and intentional interference with their economic interests unless they agree to terminate their contracts for the purchase of Daishowa products.

[102] In previous sections of these reasons, I concluded that the Friends' boycott and picketing activities are not unlawful and that the Friends have not committed the torts of interference with economic interests or inducing breach of contract. It follows that one of the crucial components of the economic tort of intimidation, namely an unlawful threat, is absent in this case.

(4) The tort of conspiracy to injure

[103] There is a common law tort of conspiracy to injure: see Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452; and Lonrho Ltd. v. Shell Petroleum Co. Ltd., [1981] 2 All E.R. 456 (H.L.). However, it has been a much criticized tort, even by the courts which have affirmed its existence. Estey J. said in Canada Cement LaFarge that "the action may have lost much of its usefulness in our commercial world, and survives in our law as an anomaly." (p. 473) In Lonrho Lord Diplock described it as "a highly anomalous cause of action." (p. 463). The tort has also been the subject of scathing academic commentary: see, for example. H.W. Arthurs, "Tort Liability for Strikes in Canada: Some Problems of Judicial Workmanship", (1960), 38 Can. Bar Rev. 346.

[104] The plaintiff summarizes, accurately in my view, the components of the tort, in its factum at paragraph 26:

26. An actionable conspiracy will occur if there is:

(i) An agreement between two or more persons;

(ii) Who share a common intent;



(a) To act unlawfully, and where the likelihood of injury to the plaintiff, as a result of the unlawful action, is known or should be known to the defendant (i.e. constructive intent to injure) or alternatively,

(b) To act lawfully but with a predominant purpose to injure the plaintiff.

(iii) An overt act pursuant to the common design; and

(iv) Actual damages.

[105] In my view, the plaintiff cannot establish either of the two components in factor (ii) of the tort. The Friends' picketing conduct was lawful. So the condition in paragraph (ii)(a) is not met. Since the Friends acted lawfully, the first condition in paragraph (ii)(b) is present. However, for reasons set out in a previous section of this decision, the predominant purpose of their conduct was not to injure the plaintiff; rather it was to focus public attention on an important public issue, the plight of the Lubicon Cree.

[106] My conclusion is that the plaintiff has not succeeded in its claim that the defendants committed the tort of conspiracy to injure.



(5) The tort of misrepresentation

[107] In their facta and closing arguments both parties appeared to employ the terms misrepresentation, defamation and injurious falsehood interchangeably. Under all three rubrics the plaintiff complains about the contents of the message communicated by the defendants. The plaintiff asserts that what the defendants say about an alleged agreement on March 7, 1988 between Daishowa and the Lubicon Cree, about Daishowa's alleged role in the genocide of the Lubicon Cree, and about Daishowa's role in the alleged clear-cutting of Lubicon land, is false. Since both counsel focussed their submissions on the tort of defamation, I will analyze these three areas of dispute under that heading.

(6) The tort of defamation

[108] In Dieleman, supra, Adams J. provided a succinct definition of defamation, at p. 670:

An action lies by an individual against the maker of a statement the publication of which tends to lower the reputation of the plaintiff in the estimation of right-thinking members of society. To be actionable, a statement (1) must refer to an individual by name or would lead reasonable persons to conclude that it was the plaintiff to whom the defendant referred; (2) be defamatory; and (3) not be justified as a true statement, fair comment or a statement made on an occasion of privilege.


[109] The plaintiff asserts that the defendants have defamed it in three ways during the course of their boycott campaign. First, the Friends assert that Daishowa and the Lubicon Cree made a formal agreement on March 7, 1988. The essence of the agreement was that Daishowa would not conduct logging operations on land claimed by the Lubicon until its rights to the land were settled through negotiations with the federal and Alberta governments. Second, the Friends assert that Daishowa is involved in genocide against the Lubicon. Third, the Friends contend that Daishowa is poised to engage in clear-cut logging on Lubicon land. Daishowa submits that all three of these claims are false. Accordingly, says Daishowa, the Friends have committed the tort of defamation.

[110] I will deal with the three subjects of this claim in turn.

(a) March 7, 1988 Agreement

[111] In many of its letters to Daishowa customers, the Friends asserted that Daishowa had entered into a formal agreement with the Lubicon Cree at a meeting held in Vancouver on March 7, 1988. The Friends further asserted that Daishowa

had broken the agreement. A typical letter relating to this issue was the one sent to Pizza Pizza by Ed Bianchi on November 6, 1991, which stated in part:

On March 7, 1988 an agreement was made between the Lubicon Lake Cree Nation of northern Alberta and Daishowa, a multinational paper company. Part of this agreement stated that Daishowa would not begin clear-cutting Lubicon land until their land rights settlement has been negotiated. Daishowa has broken this agreement.

The Friends made similar statements in the leaflets they used at the second stage, the picketing stage, of their campaign. For example, the leaflets handed out at a demonstration at a Pizza Pizza outlet said:

On March 7, 1988, Daishowa met with the Lubicon Cree of Northern Alberta and agreed not to cut trees on unceded Lubicon territory until a land rights settlement was negotiated between the Lubicon and the Government.

Daishowa now denies ever making such an agreement, and is planning to clear-cut vast areas of Lubicon land.


[112] Daishowa asserts that these statements are false. It is necessary, therefore, to consider in some detail the meeting between Daishowa and Lubicon representatives that took place on March 7, 1988.

[113] While Daishowa and the Government of Alberta were negotiating the FMA early in 1988, Daishowa became aware that the Lubicon Cree was opposed to it. A demonstration was organized at Daishowa headquarters in Vancouver for March 7, 1988. Chief Bernard Ominayak was scheduled to participate in the demonstration.


[114] Koichi Kitigawa, the vice-president of Daishowa Canada Company Ltd. at the time, took the initiative and arranged to meet Chief Ominayak on March 7. The meeting lasted about an hour. The key participants on the Daishowa side were Mr. Kitigawa and Henry Wakabayashi, the project manager for the Peace River mill. For the Lubicon Cree, the significant participants were Chief Ominayak and Fred Lennarson, a long time advisor to the band. All four of these participants testified at length at this trial about the March 7, 1988 meeting. Moreover, both Mr. Wakabayashi and Mr. Lennarson kept detailed notes at the meeting, which were entered as exhibits.

[115] Mr. Kitigawa described the meeting as a preliminary and informal one during which the Peace River mill project was explained to the Lubicon representatives. He stated that he understood the Lubicon and the Government of Alberta and federal Government were negotiating a reserve area for the Lubicon. If the result of that negotiation was designation of reserve land located within Daishowa's FMA, Mr. Kitigawa said that it would be removed from the FMA. He understood that the Lubicon was concerned about the effects of logging on hunting, wildlife and the environment in land outside the potential reserve. Mr. Kitigawa testified that he advised the Lubicon that those issues would be addressed in the FMA; moreover, he undertook to consult with the Lubicon prior to logging to minimize the impact on wildlife and to avoid destroying traditional burial grounds. However, Mr. Kitigawa firmly stated that he did not go farther and promise that Daishowa would refrain from logging at all in the 'area of concern' until a comprehensive land rights settlement was negotiated between the Lubicon and the federal and Alberta Governments. He testified:

In a one-hour meeting, we do not make arrangements to enter into agreements that are unrecorded, that are not - there's no evidence of agreement being made at that particular meeting. And there's further correspondence that says that there was no agreement.

[116] Chief Ominayak agreed with Mr. Kitigawa that Daishowa had taken the initiative to arrange the meeting on March 7, 1988. He said that during the meeting "we went back and forth for quite a while". He said that Daishowa's basic position was that it would obey provincial forestry and environmental laws; he informed Daishowa that that was not good enough. After further discussion, Daishowa agreed, according to Chief Ominayak, that it would not conduct logging operations anywhere in the FMA that coincided with the Lubicon 'area of concern' until a land claims agreement had been concluded between the Lubicon and the two governments.

[1117] I was impressed with both Mr. Kitigawa and Chief Ominayak as witnesses. In my opinion, they are honest men who went to a meeting with good intentions and even left the meeting thinking that it had been useful. Unfortunately, their interpretations of the results of the meeting are quite different.


[118] On the basis of the testimony of Mr. Kitigawa, Mr. Wakabayashi, Chief Ominayak and Mr. Lennarson, and on the basis of the relevant exhibits relating to the March 7, 1988 meeting, my conclusion is that there was no agreement reached between Daishowa and the Lubicon at that meeting. I reach this conclusion for a number of reasons.

[119] First, the documentation of the discussions at the meeting does not support the existence of an agreement. Neither Mr, Wakabayashi's nor Mr. Lennarson's extensive notes of the meeting contains language indicating that an agreement had been reached.

[120] Second, the correspondence between the parties shortly after the meeting says nothing about an agreement. Mr. Lennarson wrote to Daishowa on March 14; this letter is silent about an agreement. Mr. Kitigawa responded on March 25. He wrote:

The wildlife management and environmental protection responsibilities will be spelled out in our Forest Management Agreement, however we will endeavour to co-operate and consult with the Lubicon people prior to the planning and harvesting of the timber resources.

This passage is clearly inconsistent with any promise not to log inside the FMA for an indefinite period of time while negotiations took place between the Lubicon and governments.

[121] That this letter was perceived by the Lubicon as being inconsistent with such a promise is apparent from Chief Ominayak's responding letter dated April 2,

1988. Mr. Lennarson testified that he drafted this letter for Chief Ominayak's signature. The letter began:

Fred Lennarson referred your March 25th letter to me. Apparently we failed to communicate adequately during our meeting on March 7.

And the last sentence of the letter stated:

Hopefully this letter will make clear what we apparently failed to communicate adequately during our meeting on March 7.

The letter then proceeded to set out, in blunt language, the Lubicon position that no logging could take place until its land claims rights had been resolved. Nowhere in

this letter is there an assertion that Daishowa had agreed to this restraint on its logging rights at the March 7 meeting.

[122] Mr. Lennarson testified that he did not say that clearly in the letter because he was drafting it in accordance with the Lubicon practice of being "pleasant" and "courteous" in its communications. I completely reject this explanation. Mr. Lennarson included the following in his draft letter, which Chief Ominayak signed:



As we told you during our meeting on March 7, we don't intend to allow logging on our traditional area at least until our aboriginal land rights are settled.

.....

Any effort to proceed with logging in our traditional area prior to settlement of our aboriginal land rights and/or negotiation of an appropriate agreement with us will be blocked - on the ground if need be.


This is hardly the language of pleasantness or courtesy!

[123] Third, other important documents at the time made no reference to the agreement. For example, Mr. Lennarson was in the habit of sending regular information packages to a worldwide network of people interested in the Lubicon situation. He sent such a mail-out on March 25, 1988. There is no mention in it of a recent agreement between Daishowa and the Lubicon, although the fact of the March 7 meeting is mentioned.

[124] Fourth, the entire contents of Mr. Lennarson's letter to Mr. Kitigawa on March 14, 1988 are inconsistent with the existence of the asserted agreement. The letter began:

Pursuant to our meeting on March 07, 1988, enclosed for your information is a map outlining in blue that part of the traditional Lubicon area still being continually used and occupied by the Lubicon people . ...

In my view, the fact that within a week after the meeting the Lubicon sent Daishowa a map showing the extent of its land claim is consistent with a description of the meeting as an informal, information sharing meeting. It strains credulity to think that Daishowa would agree not to log on a vast area of land over which it was acquiring rights without knowing how much land such a momentous agreement would cover.

[125] Fifth, both Chief Ominayak and Mr. Lennarson testified that the Lubicon had a practice of documenting important agreements. Indeed, Mr. Lennarson testified that the Lubicon has entered into about 200 detailed written agreements with oil and gas companies concerning activities in its 'area of concern'. Chief Ominayak testified that the March 7 Daishowa-Lubicon agreement was "a very important agreement." Yet there is nothing to document the agreement.

[126] Sixth, there is what I would call a common sense point that belies the existence of the asserted agreement. The Lubicon 'area of concern' is a vast area. It overlaps substantially with Daishowa's FMA. The Lubicon and federal and Alberta governments have engaged in negotiations for a half-century. These negotiations have failed completely. It is simply not sensible to think that in these circumstances Daishowa would agree, in a first meeting lasting an hour, to forego the logging rights necessary to support a $500 million mill for an indefinite period of time.

[127] Set against these six reasons is the fact that in 1990 certain Daishowa officials in the Edmonton office appeared to say things that supported the existence of the agreement. In my view, these statements reflect a brief confusion on the part of relatively low-level Daishowa employees about what had happened at the March 7, 1988 meeting. At that meeting Daishowa had recognized that the Lubicon reserve, once identified and agreed to, would be removed from its FMA; Daishowa had not agreed not to log anywhere in its FMA that coincided with the Lubicon 'area of concern'. For a brief time in the autumn of 1990, some Daishowa employees in Edmonton used language that was general enough to give the impression that Daishowa had made the much broader agreement relating to all land over which the Lubicon was asserting its claim. In my view, their comments, if interpreted in that broader fashion, were mistaken. They do not come close to offsetting the overwhelming evidence that there was no agreement reached on March 7, 1988 that would require Daishowa to stay off all lands in the Lubicon 'area of concern' until the Lubicon and the federal and Alberta Governments had finalized a land claims agreement.

[128] My conclusion is that the statements by the Friends to the effect that Daishowa made, and then broke, an agreement with the Lubicon on March 7, 1988 are false. Without question, the publication of those statements in letters and leaflets would tend to lower Daishowa's reputation in the community.

[129] The Friends' defence on this issue was limited to an assertion that its statements were true. Since I have concluded that they were false, it follows that the plaintiff has proven the tort of defamation with respect to these statements.

(b) Genocide

[130] Throughout their campaign, the Friends have explicitly linked Daishowa's conduct with a potential result of the genocide of the Lubicon Cree. In the material most visible to the public at large, namely, the large banner they displayed at the demonstration outside a Pizza Pizza store, the statement on the banner, in large letters, was STOP THE GENOCIDE. Moreover, in the leaflets distributed to the public at the demonstration, the Friends said:

On March 27, 1988, Daishowa met with the Lubicon Cree at Northern Alberta and agreed not to cut trees on unceded Lubicon territory until a land rights settlement was negotiated between the Lubicon and the Government.

Daishowa now denies ever making such an agreement, and is planning to clear-cut vast areas of Lubicon land.

THIS IS AN ACT OF GENOCIDE AGAINST THE LUBICON LAKE NATION.

[131] In some of their letters, the Friends made a similar linkage. For example, in a letter to the national chain Bootlegger on May 23, 1992 Sara McDowell of the Friends wrote:

Bootlegger is already under pressure in Alberta from the Daishowa Boycott Coalition, and other Daishowa boycott groups across the country are certain to join the boycott campaign against you. Surely it is not worth going through the public ordeal of a nation-wide boycott for the sake of your paper bags. There are alternative Canadian suppliers for the type of bags that you use. There is no reason for you to continue using Daishowa products, tainted with genocide.

[132] Another example, with different wording, is Mr. Bianchi's letter to Country Style Donuts dated November 11, 1991. After making the standard statements about Daishowa's breach of the March 7, 1988 agreement and its intention to clear-cut Lubicon land, Mr. Bianchi wrote:

This, as well as previous destruction of their land by government-sponsored oil and gas development, will result in the genocide of the Lubicon people.

[133] In a defamation proceeding, words must be interpreted according to their plain and ordinary, or usual and common, meaning. As expressed by R.E. Brown,

author of the leading Canadian text The Law of Defamation in Canada (2nd. ed., Vol. 1), at p. 5-2:

Words, in order to be actionable, must be understood in a defamatory sense. In construing the language used, a court will avoid any forced or unreasonable interpretation. Words will generally be given their ordinary meaning unless they have some special, technical or colloquial meaning and would be understood in that sense by those to whom they were published. The defamatory meaning must be one which would be understood by reference to an ordinary and reasonable person, and not a meaning by someone who may be naturally inclined either to attribute the best or worst meaning to words published about the plaintiff.

[134] In my view, the plain and ordinary meaning of the word 'genocide' is the intentional killing of a group of people. 'Genocide' is defined by Webster's Dictionary (Seventh Collegiate Edition) as "the deliberate and systematic destruction of a racial, political or cultural group", by the Shorter Oxford English Dictionary (Third Edition, 1991 Reprint) as "the annihilation of a race", and by the Oxford English Dictionary (Second Edition, 1989) as "the deliberate and systematic extermination of an ethnic or national group."

[135] Thus, the essence of the meaning of the word 'genocide' is the physical destruction of a group identified on a racial, political, ethnic or cultural basis. The United Nations Convention on the Prevention and Punishment of the Crime of Genocide conveys a similar meaning:

ARTICLE II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

[136] The definition of 'genocide' in the Criminal Code, R.S.C. 1985, c. C-46, is in a similar vein:

318(2) In this section "genocide" means any of the following acts committed with intent to destroy in whole or in part an identifiable group, namely,

(a) Killing members of the group;

(b) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

[137] Neither in intent nor in result could Daishowa's proposed logging activities come anywhere close to these definitions. Indeed, in a century that has borne witness over and over again to terrible examples of genocide, it would be an enormous injustice to link Daishowa's proposed activities with this meaning of genocide.


[138] The Friends contend that they do not try to make this link. They say they are using the word 'genocide' in the manner contemplated by the writer who first used the word, Raphael Lemkin, in Axis Rule in Occupied Europe (Carnegie Endowment for International Peace, 1944), at p. 79:

New conceptions require new terms. By "genocide" we mean the destruction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing), thus corresponding in its formation to such words as tyrannicide, homicide, infanticide, etc. Generally speaking, genocide does not necessarily mean the destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.


[139] Relying on this definition, which they say they have studied carefully, the Friends assert that what they accuse Daishowa of being involved in is 'cultural genocide' or 'a genocidal process'. There are examples of this phrasing in some of

the Friends' material. For example, in his letter dated November 6, 1991 to Cultures, Mr. Bianchi wrote:

As soon as the land freezes, Brewster Construction Company, a wholly owned subsidiary of Daishowa, will begin clear-cutting Lubicon land. This, as well as previous destruction of their land by government sponsored oil and gas development, will result in the cultural genocide of the Lubicon people.

Similar language is contained in many other documents, including the press release on November 11, 1991 announcing the demonstration against Daishowa scheduled for November 14.

[140] In my view, there are three serious problems with the Friends' submission on this point. First, in some of the most visible material distributed to the public (set out above) the Friends used no language to qualify or explain their use of the word 'genocide'. Instead, they made bald assertions of 'genocide' or 'act of genocide'.

[141] Second, the Friends' argument does not respond to the fact that the plain and ordinary meaning of the word 'genocide' is, as set out above, the systematic killing of a people. It may well be that some of the Friends, for example Mr. Thomas and Mr. Bianchi according to their testimony, have studied and reflected upon the meaning of the word 'genocide' and concluded that it has a broader meaning. That does not detract, in my view, from the fact that the meaning of the word for ordinary citizens is, as the dictionary definitions reflect, the destruction of a group of people. The Holocaust in Europe in the 1940s and the tragic events in parts of Africa and in the former Yugoslavia in this decade - these are what ordinary people think about when the word 'genocide' is employed.

[142] Third, in my view the Friends cannot even bring themselves within a fair reading of Professor Lemkin's definition. That definition speaks of "actions aiming at the destruction of essential foundations of the life of national groups," "the aim of annihilating the groups," "the objectives of such a plan would be disintegration of ... culture". It borders on the grotesque for the Friends to try to link Daishowa's planned logging activities with such aims, objectives and plans.

[143] In summary, in a previous section of these reasons, I concluded that the Friends' boycott and picketing activities were lawful in a democratic society which places a high value on free speech. I also concluded that the manner in which the Friends conducted their activities was fair (for example, they scrupulously included Daishowa's materials in the packages they sent to consumers) and properly respectful of the rights of others (for example, during picketing activities they made no attempt to prevent people from entering a store).


[144] None of this description applies to the Friends' use of the word 'genocide' in their activities. Mr. Thomas and Mr. Bianchi testified that they engaged in serious study and reflection before deciding to use the word 'genocide'. I believe them. Unfortunately, that care did not carry through to the manner in which they used the word. Their use of the word in the Friends' campaign was cavalier and grossly unfair to Daishowa. It was also defamatory.

[145] The Friends took the position that if their use of the word 'genocide' was defamatory, it was nonetheless 'fair comment' on an important political and social issue. Although I would reject this argument on the merits, I note that in his testimony Mr. Thomas said that he used the word 'genocide' because it was true. This precludes the defence of fair comment.

(c) Clear-cut logging on Lubicon land

[146] When they commenced their campaign against Daishowa in the autumn of 1991, the Friends alleged that Daishowa was poised to clear-cut trees on Lubicon land. Their press release on November 11 stated:

Its Five Minutes to Midnight for the Lubicon Cree

Stop Daishowa/Stop the Clear-cutting

Within the next few days, the land at Lubicon Lake will be frozen, and Daishowa - a transnational paper manufacturing company - will begin clear-cutting the traditional, unceded territory of the Lubicon Cree Nation in northern Alberta

[147] The Friends also prepared a leaflet announcing a demonstration on November 14 at Daishowa's Toronto office. This leaflet stated:

As soon as the ground freezes in northern Alberta, Daishowa will begin clear-cutting on Lubicon land.

[148] Daishowa claims that these statements were false. It says that in the autumn of 1991 it imposed a voluntary moratorium on logging in the Lubicon 'area of concern'. Daishowa says that it communicated this decision to the Lubicon Cree in letters to Chief Ominayak dated October 31 and Kevin Thomas of the Friends dated November 8. Accordingly, the statements about imminent clear-cutting of trees on Lubicon land made by the Friends in the material they prepared and distributed at the start of their campaign were false.

[149] I do not accept Daishowa's argument on this point. There is no doubt that the method of cutting trees used by Daishowa and its subsidiaries in its forest operations is clear-cutting. Howard Gray, the Regional Director for Lands and Forest Service of the Department of Environmental Protection in Alberta, confirmed this in his testimony. Moreover, in the 1989-1990 and 1990-1991 winter seasons, Brewster Inc., a Daishowa subsidiary, had clear-cut trees in the Lubicon 'area of concern'. And the Daishowa letters to Chief Ominayak (which he says he never received) and to Kevin Thomas did not put to rest the concerns of the Lubicon Cree or the Friends. This is manifest from Kevin Thomas' prompt reply on November 10 to Daishowa's November 8 letter to him. In his reply, Thomas sought clarification of what lands would be subject to the logging moratorium. He received no response from Daishowa.

[150] In light of these factors, I do not think that the Friends' assertions about clear-cutting in their early material were defamatory. The situation with respect to Daishowa's logging plans for the 1991-1992 winter season was confusing. In the midst of that confusion, it would be unfair, in my view, to label the Friends' statements as defamatory.

[151] Moreover, shortly after the campaign began, when the Friends realized that in fact Daishowa would not be clear-cutting on Lubicon land in the 1991-1992 winter season, they changed their materials to reflect this fact. For example, in their press release dated November 26, 1991 they said:

This year, Daishowa is once again promising that it is not going to cut on Lubicon territory, BUT, requests by the Lubicon and their supporters for a firm, public and clear commitment from Daishowa have been ignored.


And in their leaflets announcing the boycott of Pizza Pizza, the Friends said:

CLEAR-CUT AND PIZZA PIZZA

The multi-national paper company, Daishowa, is poised to clear-cut the entire traditional territory of the Lubicon Cree of northern Alberta. Daishowa subsidiaries began cutting last fall, although a growing national boycott of Daishowa products has put a halt to logging this year. But they refuse to promise not to log until the Lubicon land claim is settled.

[152] In summary, Daishowa's complaint about the Friends' allegations concerning Daishowa's logging plans strikes me as somewhat trivial. In my view, the Friends' statements on this issue were not defamatory.

DISPOSITION

[153] The principal relief sought by Daishowa, namely, a permanent injunction restraining the picketing activities of the Friends at the stores of Daishowa customers, is refused.

[154] In all aspects of their campaign, including picketing activities, the named defendants Friends of the Lubicon, Kevin Thomas, Ed Bianchi and Stephen Kenda are enjoined from asserting that Daishowa and the Lubicon Cree Nation reached an agreement on March 7, 1988 concerning Daishowa's exercise of its logging rights in the Forest Management Area. The same defendants are also enjoined from using the word 'genocide' in any of their communications in their campaign.

[155] These two restrictions should also apply to anyone who has notice of this decision and the court order which will give effect to it. The style of cause, which lists Jane Doe, John Doe and Persons Unknown as defendants, is a proper foundation to permit Daishowa to seek this relief, and it is appropriate on the merits to grant it: see MacMillan Bloedel Ltd. v. Simpson (1996), 137 D.L.R. (4th) 633 (S.C.C.).

[156] Daishowa is entitled to the $1 damage award it seeks. The Friends' defamation of Daishowa with respect to the March 7, 1988 meeting and genocide deserves to be sanctioned by the award of the nominal amount Daishowa seeks.

[157] Costs may be spoken to, if necessary.




________________

Released: 14 April, 1998 J.C. MacPherson



















Court File No.95-CQ-59707

ONTARIO COURT OF JUSTICE

(GENERAL DIVISION)


B E T W E E N:

DAISHOWA INC.

Plaintiff

- and -


FRIENDS OF THE LUBICON, KEVIN THOMAS, ED. BIANCHI, STEPHEN KENDA, JANE DOE, JOHN DOE and PERSONS UNKNOWN


Defendants


REASONS FOR JUDGMENT




RELEASED: 14 April 1998 MACPHERSON J.

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