Supreme Court Appeal


- by Russell Mokhiber, Essential Information

The Toronto Friends of the Lubicon are asking the Supreme Court of Canada to hear an appeal of an Ontario court ruling which could wipe out boycotts as a political tactic. The Ontario Court of Appeal recently refused to hear their appeal of an Ontario's Divisional Court ruling that consumer boycotts which cause economic harm to a corporation cross the line into illegality.

The court was ruling on an appeal by the transnational pulp and paper giant Daishowa, who are seeking a permanent injunction against a five-year-old boycott campaign called by the Toronto Friends of the Lubicon (FOL) and claiming an unspecified amount in damages. Supporters of the Lubicon Lake Cree Nation in Alberta have been boycotting Daishowa paper products in a successful bid to keep Daishowa off traditional Lubicon territories until their land rights have been settled.

Daishowa was granted leases to clear-cut almost the entire Lubicon territory in 1988. Their subsidiary Brewster Construction began cutting in 1990 but operations have been held off since a national boycott was announced in 1991. So far almost 50 companies representing over 4,300 retail outlets have agreed to stop using Daishowa paper bags.

Last May, Justice Frances Kiteley ruled that an injunction against a consumer boycott -- aimed at preventing informational picketing at stores that use Daishowa paper bags -- would unduly restrict freedom of expression. Daishowa promptly appealed the decision, arguing that Friends of the Lubicon's intent was to hurt their company and that intention rendered their activities illegal.

A three member panel heard the appeal last October. The panel paid no attention to the social, political or environmental context of the case, treating it as a piece of commercial litigation in which only the economic interests of both parties are at stake. Friends' lawyer, Karen Wristen of the Sierra Legal Defense Fund tried to argue that the Charter values of freedom of expression must be considered in any attempt to restrict peaceful picketing, but the plea fell on deaf ears. In a split decision, released January 23, the court granted Daishowa a temporary injunction preventing Lubicon supporters from handing out flyers in front of stores which use Daishowa paper products.

Then came the clincher. Giving no reasons, the Ontario Court of Appeal flatly refused to entertain an FOL appeal. The Friends of the Lubicon have had to turn to the Supreme Court, asking for leave to appeal the decision to the higher body. Wristen argues that the decision threatens the right to conduct a consumer boycott. "The Court has essentially said that the intention to cause economic harm made this boycott illegal," Wristen says. "Every successful boycott inevitably results in economic impacts on the company targetted. It is difficult to imagine how any boycott could be said to be legal, following this reasoning."

The decision says that because Daishowa suffered economic harm from the boycott -- Daishowa claims it has cost them upwards of $5 million so far -- FOL must have known this would occur, and therefore FOL must have intended to harm the company. Using this logic, any boycott which actually causes a loss of business to a company could be restricted by the courts. The true test of a boycott's illegality has become its effectiveness.

Stephen Kenda, of Friends of the Lubicon, says that they're not out to harm Daishowa. "The boycott was our means of protesting the clearcutting of Lubicon land before land rights issues are settled."

The court case follows a pattern of "SLAPP suits" -- Strategic Lawsuits Against Public Participation -- which is well established in the United States. Bringing overwhelming legal action against their opponents, corporations like Daishowa try to restrict protests directed at their activities by tying up a group's time and money in the courts. The net effect is to dampen public participation as people begin to think twice about speaking out. Having spent over a year in court and thousands of dollars with no end in sight, FOL is feeling the effects. "It's an endless round of court appearances sandwiched in between fundraising efforts," says Kenda. "For an entirely volunteer based group it's a real weight on our shoulders."

The court case will now proceed possibly to appeal and eventually to a full trial in which the court will decide whether or not to make the injunction permanent and whether or not individual FOL members will be liable for the huge financial damages Daishowa claims the boycott has caused them.

For environmental and consumer activists, the case is precedent setting -- it may well spell the end of effective consumer boycotts in Canada. For the Lubicon Cree, it could be the last straw. Justice Kiteley made the connection. She found that the boycott was the main factor keeping Daishowa from beginning clearcutting operations. With the boycott effectively banned, Daishowa has already moved to widen logging roads in the Lubicon territory. The Lubicon community is once again facing impending clearcutting with the public debate effectively silenced.

Contact Friends of the Lubicon at
485 Ridelle Ave.
Toronto ON M6B 1K6
tel: (416) 763-7500
fac: (416) 603-2715

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