Ontario Court of Justice (General Division)
Heard: April 26, 27, 28, 1995.
Judgment: May 29, 1995. Released: May 30, 1995.
Injunctions -- Interlocutory or interim injunctions -- Consideration of merits -- Balance of convenience -- Avoidance of disposition of issue -- Requirement of strong prima facie case -- Requirement of irreparable injury -- Labour relations -- Nuisance -- Civil rights -- Freedom of speech or expression -- Picketing, secondary picketing in a non-labour context -- Indians -- Lands -- Protection of Indian rights.
This was a motion by the plaintiff for an interlocutory injunction restraining the defendants from unlawfully interfering with the plaintiff's contractual and economic relationships through threats, intimidation and coercion, misinformation and defamatory statements and from secondary picketing and boycotting of the plaintiff's customers. The plaintiff was a subsidiary of a company involved in logging. The plaintiff manufactured paper bags for grocery and other stores. It had no connection with the logging activities of the associated company. The defendants were a group of individuals who were interested in protecting the rights of the Lubicon Cree. The associated company of the plaintiff got a logging contract that impacted on the Lubicon's land. The defendant then decided to organize a boycott campaign of the plaintiff's business. This campaign consisted initially of telephone or letter contact informing the customers of the plaintiff of the situation. Then written materials were sent out indicating that the plaintiff had an agreement with the Lubicon Cree that it would not begin clearcutting their land until their land rights settlement was negotiated. The defendants stated that plaintiff's actions would result in cultural genocide. Also included were press releases indicating which of the plaintiff's customers were currently part of the boycott. Finally there was a threat that a boycott of a non-boycotting company would be initiated unless the defendant received written confirmation that the customers would stop using the plaintiff's paper products. The plaintiffs claimed that it had lost 26 customers, that it had been deprived of the business of three companies and that four others had been targeted by the defendants. The plaintiff alleged losses 25 per cent of its business.
HELD: The application was allowed in part. Communication with the customers of the plaintiff and secondary picketing was not to be enjoined if certain conditions were followed. These were that the defendants were prohibited from indicating that the Lubicon had reached an agreement with the plaintiff, the defendants were prohibited from using the word genocide or similar words in its communications, the defendants were required to notify all of the plaintiff's customers when a land settlement was reached and that the boycott was to cease, and the defendants were to provide a list to the plaintiff of all of the customers of the plaintiffs they had contacted and copies of all correspondence that the defendants had with the plaintiff's customers were to be forwarded to the plaintiff. The test to be applied in this case was whether the applicant had established a prima facie case rather than whether there was a serious issue to be tried. The plaintiff failed to establish a prima facie case of misrepresentation, defamation, injurious falsehood, nuisance, wrongful interference with economic interests, including secondary picketing and the threat of secondary picketing, inducing breach of contract, intimidation and conspiracy. The plaintiff did establish a prima facie case that attributions of genocide on the activities of the logging company were misleading and constituted misrepresentation. With regard to the issue of irreparable harm, the plaintiff succeeded in showing that even if it recovered damages at the trial, the defendants would not be able to pay any large award. The loss to the plaintiff's reputation and business might not be permanent, given the indication by some customers of their intention to go back to using the plaintiffs products after the dispute had ended. The balance of convenience favoured the defendants as the Charter rights of the defendants were to be favoured over the economic rights of the plaintiff.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 1, 2(b).Counsel:
Criminal Code, s. 423(1)(f), 423(2)
E. Cherniak, Q.C., and P. Jervis, for the plaintiff.
C. Ruby, H. Sachs and J. Copeland, for the defendants.
1. 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 boycotting of Daishowa's customers;[para2] The plaintiff specified in its factum that it does not seek to interfere with the defendant's freedom of expression or speech. In particular, it does not seek to restrain:
2. restraining secondary picketing and unlawful secondary boycotts of Daishowa's customers; and
3. restraining the communication of untruthful and defamatory statements in the course of their unlawful secondary boycott of Daishowa's customers.
1. communication by the Defendants with the public, including Daishowa's customers, of any truthful, non-defamatory information about any subject including information about Daishowa Inc. or its related companies;[para3] The materials filed in connection with this motion are as follows:
2. lawful picketing by the Defendants including picketing of Daishowa premises or those of any of its related companies; and
3. the Defendant's boycott of Daishowa using lawful means.
1. a) Affidavits of Tom Cochran (Director, Corporate Development of Daishowa Forest Products Ltd.) sworn January 10, 1995, February 1, 1995, February 3, 1995, April 5, 1995, and April 25, 1995.
b) Transcript of Cross-Examination (on all but the affidavit dated April 25, 1995) taken on April 6, 1995.2. a) Affidavit of Gordon Bunt (General Manager of the Packaging Division of Daishowa Inc.) sworn January 3, 1995.
b) Transcript of Cross-Examination taken on April 7, 1995.3. a) Affidavit of Michael Overs (Chairman of Pizza Pizza sworn November 30, 1994).
b) Transcript of Cross-Examination taken on April 13, 1995.4. a) Affidavit of Jack Love (Sales Supervisor, Ontario Region, of the Packaging Division of Daishowa Inc.) sworn January 5, 1995.
b) Transcript of Cross-Examination taken on April 10, 1995.>5. a) Affidavit of Karen Winter (Sales Specialist, Retail Packaging for the Packaging Division of Daishowa Inc.) sworn December 22, 1994.
6. a) Affidavit of Don Shafer (President of the Comac Food Group) sworn January 27, 1995.
7. a) Affidavit of Brian Worts (Director of Retail Leasing for the Oxford Suburban Group) sworn January 31, 1995.
8. a) Affidavit of Guiseppe Sasson (Purchasing Manager of Fancy-Pak) sworn January 31, 1995.
9. a) Affidavit of Marc Robitaille (President of Omniplast Inc.) sworn March 21, 1995.
10. a) Affidavit of Fern Lukofsky (Account Executive for Progress Packaging) sworn April 4, 1995.
b) Transcript of Cross-Examination taken on April 13, 1995.11. a) Affidavit of Koichi Kitagawa (President and Chief Executive Officer of Daishowa Forest Products Limited) sworn April 4, 1995.
b) Transcript of Cross-Examination taken on April 10, 1995.12. a) Brief of Defendants' Responses to Undertakings.
13. a) Affidavit of Kevin Thomas sworn March 20, 1995.[para4] The statement of claim and statement of defence were included. The plaintiff filed two facta and three volumes of authorities. The defendants filed one factum and five volumes of authorities. The plaintiffs provided an undertaking as to damages.
b) Transcript of Cross-Examination taken on April 12, 1995.14. a) Affidavit of Bernard Ominayak sworn March 21, 1995.
15. a) Affidavit of Joan Ryan sworn March 20, 1995.
16. a) Summary - Financial Reports (Daishowa Packaging Division).
17. a) Brief of Defendants' Book of Selected Exhibits.
18. a) Brief of Plaintiff's Responses to Undertakings and Exhibits.
19. a) Brief of Material Provided by Plaintiff Pursuant to Undertakings.
20. a) Affidavit of Suzanne Jarvie sworn April 25/95.
1. The statement of claim was issued on January 11, 1995 and was served on January 12, 1995 along with a motion record.
2. The motion for the injunction was originally returnable on February 6, 1995. On that occasion, an order was made on consent by Wright J. adjourning the motion for three months on condition that, in the meantime, boycott activities would be suspended, the defendants would not have contact with customers, and there would be no picketing. The statement of defence was required by March 2, 1995. Costs of that attendance were reserved to the Judge hearing the motion.
3. The statement of defence was served March 20, 1995.
4. Cross-examinations of various witnesses took place in April.
5. A motion was brought on April 21, 1995 by the plaintiff for an order to seal certain of the documents produced by the plaintiff in response to questions asked in cross-examinations about the damages alleged to have been suffered by the plaintiff. That motion was dismissed by Borins J. on condition that the plaintiff might renew the motion before the Judge hearing the main motion. Borins J. in his endorsement, reflected his "expectation that between its production and return date of the motion, the documents would be used by the Defendants only to argue the motion." Costs of that motion were reserved to the Judge hearing the motion.
6. At the outset of the hearing on April 26th, counsel for the plaintiff again made a motion to maintain the confidentiality of the documents. At the conclusion of submissions on April 28, 1995, judgment was reserved to this date. In order to address the expiration on May 6th of the order of Wright J. and the further motion with respect to confidentiality, an order was made pending judgment on May 19, 1995 continuing the order of Wright J. dated February 6, 1995 with the ongoing "expectation", as expressed by Borins J. dated April 21, 1995, that the materials in question would be used by the defendants only with respect to this motion.
[para6] Daishowa Inc. is a Canadian corporation with business premises in the provinces of Quebec, Ontario and Manitoba. It operates paper and sawmill operations in the Province of Quebec and has a packaging division which manufactures and sells a variety of packaging products throughout Canada. Daishowa Inc. is a subsidiary of Daishowa Forest Products Ltd. (DFPL). Daishowa Forest Products Ltd. is owned by Daishowa Canada Holdings Ltd. (DCHL) which in turn is owned by Daishowa Paper Manufacturing Co. Ltd. (DPMC) which is a Japanese corporation. Neither Daishowa Forest Products Ltd. nor Daishowa Canada Holdings Ltd. carry on logging or pulp and paper operations in Western Canada. The parent company DPMC has another subsidiary, Daishowa Canada Company Ltd. (DCCL). It is this latter company that negotiated a Forest Management Agreement in Alberta.b) The Lubicon Cree
[para7] The packaging division of Daishowa is based in the City of Winnipeg. It currently employs approximately 100 people with several additional sales personnel in other provinces. Daishowa's primary business is the manufacture and sale of paper bags ranging from simple brown paper bags to high quality shopping bags used by retail clothing chains. The Daishowa packaging division does not have any manufacturing facilities outside of the Province of Manitoba. It does not use any wood fibre or other raw material from northern Alberta.
[para8] While not a party, the circumstances of the Lubicon Cree merit some description in order to appreciate the identity and objectives of the Defendants. Dr. Joan Ryan, who has a Doctorate in Anthropology, has been involved with documenting Lubicon Cree ethnography since 1980. More will be said below about the evidence contained in her affidavit. In brief, she indicates that the Lubicon people number approximately 500 and a majority reside in the northeast area of the Peace River district of Alberta. The Lubicon Cree experienced negative effects from oil well activity beginning in the 1950's.c) The Defendants
[para9] According to the affidavit filed by Chief Bernard Ominayak, the Lubicon people were not included when Treaty 8, purporting to extinguish aboriginal land title in northern Alberta, was negotiated with the indigenous societies surrounding the Lubicon traditional territory. To date, no treaty purporting to extinguish the Lubicon Cree Nation's aboriginal title has been negotiated with them. They have also never ceded their rights to their traditional territory in any other legally or historically recognized way. The Lubicon Nation, therefore, takes the position that they retain unextinguished aboriginal land rights to a 10,000 square kilometre area ("unceded Lubicon territory") in northern Alberta.
[para10] Kevin Thomas resides in the City of Toronto. He works as a researcher for a Toronto law office and is currently working towards a Bachelor of Arts degree at the University of Toronto. Ed Bianchi resides in the City of Toronto. He has a Masters Degree in Film and Video Production and Environmental Studies and also lectures at York University. He works for the Canadian Broadcasting Corporation as part of the Training and Development team and is an independent video producer and director who operates a small production company which concentrates on educational projects. Stephen Kenda resides in the City of Toronto and is currently studying to become a Shiatsu massage therapist. He has a Bachelor of Applied Science degree in Electrical Engineering.
[para11] Thomas became interested in the plight of the Lubicon Cree when he was in high school. The Friends of the Lubicon is an unincorporated group which was formed in 1988 after two of the defendants visited the community of the Lubicon Lake Cree Nation in Little Buffalo, Alberta. At the time of that visit, the community had been devastated by a tuberculosis epidemic. The group was formed to assist the Lubicon to improve their conditions. All members feel a strong moral and emotional commitment to the Lubicon community and its well being. Friends of the Lubicon is an entirely volunteer organization. Thomas, Bianchi and Kenda are members of the Friends of the Lubicon.
[para12] The Friends of the Lubicon are not alone in supporting the Lubicon Cree Nation. A significant number of other organizations (over 30) have been involved including: The National Association of Japanese Canadians, The Assembly of First Nations, the Toronto Branch of the United Nations Human Rights Committee, The David Suzuki Foundation, The Canadian Peace Alliance, The Daishowa Boycott Coalition, The Lubicon Solidarity Network, and the unit on Public Responsibility of the Anglican Church of Canada.
[para13] The Friends of the Lubicon is a loosely organized group numbering at any one time from the three named individuals to 15 or 20 who attend meetings held more or less regularly at two week intervals. The general objective of the Friends of the Lubicon is to increase the level of public knowledge of the plight of the Lubicon Cree and encourage a land claims settlement. This objective is met in a number of ways including speeches, attendances at rallies such as the Earth Day Rally, presentations at schools and, lobbying government Ministers and officials to expedite a settlement.
[para14] The "Daishowa Boycott" is only one of many of the activities of the Friends of the Lubicon. Mr. Thomas indicated in his cross-examination on April 12, 1995 that, in the year preceding the order of Wright J. on February 6, 1995, only 15-20% of the meetings had addressed boycott issues while the balance had been public education and lobbying. Based on the cross-examination of Thomas, it would appear that there is no formal co-ordination of activities of the supportive groups and individuals working on behalf of the Lubicon Cree. It does appear, however, that copies of press releases and other reports of activities are forwarded to the Lubicon Cree Nation with the anticipation that, in that way, there will be a general dissemination of its activities.
[para15] In 1987, DCCL began negotiations with the Alberta Government to obtain a licence to log in northern Alberta. In February, 1988, announcements were made that DCCL intended to construct a $500 Million bleached kraft pulp mill in northern Alberta and would also harvest in the adjacent area. (Daishowa-Marubeni International Ltd. (DMI) is a company which is jointly owned by DPMC and Marubeni Corporation which is a separate Japanese Corporation. In 1992, DCCL transferred its interest in the pulp mill and all related logging rights to DMI.)b) Meeting on March 7, 1988
[para16] It is evident from the cross-examination of Kitigawa, Vice President and General Manager of DCCL in February 1988, that prior to entering into any arrangement with the Alberta Government, he was aware that the Lubicon Cree were claiming a significant portion of the land on which harvesting was intended. Kitigawa indicated that, in his negotiations with the Province, it was agreed that whatever land area was taken away for the reserve would be replaced. [para17] It was apparent in February 1988 that DCCL intended to begin construction of the pulp mill in 1988 and that construction would take two years. Harvesting of trees would take place in the winter of 1989/90 in order to have stockpiles ready in 1990 when the mill would be operational. Prior to the agreement with the Alberta Government, other companies had logged in northern Alberta. For the most part, previous logging was of softwood to make lumber. DCCL planned to operate a pulp mill for which hardwood was required. Northern Alberta has an abundant supply of hardwood, particularly aspen.
[para18] The announcement in February, 1988 was based on the assumption that a Forest Management Agreement (FMA) subsequently would be negotiated which would address cutting schedules and environmental issues.
[para19] DCCL intended to harvest by patch cutting which was described by Kitagawa as clear cutting but on a smaller scale based on historical data which indicated regeneration of aspen on a 60 year cycle.
[para20] At the time of the Calgary Olympics in February 1988, the Lubicon Cree staged a significant protest to publicize its concerns about the lack of resolution of its land claim. In February, following the announcement by DCCL, considerable media reports, both print and radio, reflected the concerns of the Lubicon Cree. Ominayak indicated in his affidavit that it was his understanding that, when the pulp mill operated, it would take about ll,000 aspen trees a day to produce the anticipated l,000 metric tons of dehydrated pulp. A demonstration was planned by a Vancouver based organization called United Native Nations to take place at the Vancouver offices of DCCL on March 7, 1988.
[para21] Prior to that protest, Kitagawa called Ominayak to discuss the concerns which, according to media reports, Ominayak had. Since Ominayak intended to be in Vancouver for the protest over the noon hour, Kitagawa and Ominayak agreed to meet at 12:30 p.m. on March 7th, 1988.
[para22] The events which occurred at this meeting had a significant impact on what occurred in the years that followed and the allegations in these proceedings. To describe it as a turning point for the Lubicon Cree and the Friends of the Lubicon is an understatement. Since it figures so prominently, some attention to detail is required.c) March 8, 1988 to August 1990
[para23] The meeting, in summary, follows: Ominayak asserts that "Mr. Kitagawa agreed to stay out of the entire traditional Lubicon territory until there was a settlement of Lubicon land rights and an agreement negotiated with the Lubicon people respecting Lubicon wildlife and environmental concerns." Kitagawa asserts that it was a "let's get to know each other" type of meeting and that no agreement was reached.
[para24] At the meeting were three representatives of the Lubicon Band (Ominayak, Fred Lennarson and Miles Richardson), two representatives of the United Native Nations (Ron George and Chief Aaron Greycloud), two representatives of DCCL (Koichi Kitagawa and Tom Hamaoka), and a consultant retained by DCCL (Henry Wakabayashi). Mr. Wakabayashi took notes of the meeting and a typewritten version was prepared and attached to Kitagawa's affidavit. It is apparent that Kitagawa agreed that the "reserve lands" were an area on which there would never be logging. Indeed, Kitagawa acknowledged that in the telephone call prior to the meeting. However, Ominayak had indicated that the Lubicon Cree claimed rights to a further 4,000 square mile area as its "traditional lands." The "traditional lands" and the "area of concern" are synonymous.
[para25] Ominayak's affidavit describes his version of the meeting. There was no cross-examination on this affidavit. Kitigawa provided his version of the meeting in his affidavit.
He was cross-examined at length on his recall of the events and was aided by the seven pages of notes produced by Wakabayashi. In the motion materials, there are many pages devoted to the events of the meeting. While eight people attended the meeting, we have evidence from only two.
[para26] The Court is therefore put into the unenviable, indeed impossible, position of receiving conflicting evidence on a very critical event.
[para27] Based on the materials, it is apparent that Ominayak and Kitagawa both believe very strongly in their understanding of what transpired.
[para28] There is some justification for the position advanced on behalf of Ominayak that can be found both in the notes of the meeting and in the evidence of Kitagawa. On page 6 of the notes, the following remark is attributed to Kitagawa: Will negotiate before proceeding.
[para29] In his cross-examination, Kitagawa gave the following evidence:Q 295 Certainly.[para30] In his responses, Kitagawa has referred to both the reserve area, about which there was no dispute, and the area of concern. If one took the answer to Q 296 in isolation, it is reasonable to understand how Ominayak came to the conclusion which he did.
A. "will negotiate before proceeding" now that I see it, I refer that to the negotiation of the Forest Management Agreement before proceeding. That had not been finalized as a document. That had to be negotiated with the government.
Q 296 Despite the fact that the comment, "will negotiate before proceeding" is made sandwiched between Mr. Lennarson's (the Lubicon's advisor) comments and Ominayak's answers. Despite where it comes at the meeting, your view is that you are talking not about negotiating with the Lubicon but now you are saying that you are negotiating with the government?
A. Let me rephrase that. There would be two aspects of that. One would be to negotiate the area of concern with the Lubicon, and two would be to negotiate the documentation with the Alberta government. (emphasis added)
Q 297 Is it your recollection that you made that clear at this point in the meeting?
Q 298 What do you recall your words were? It's key.
A. The key is that we would not harvest on their reserve area. Two, the final area of the FMA had yet to be ... the final document of the Forest Management Agreement had yet to be worked out. (emphasis added)
[para31] The demonstration continued during this meeting. At the conclusion of the meeting, the native representatives called off the demonstration. As Ominayak said at paragraph 26 of his affidavit:... Based on that agreement the Lubicon people called off the growing national protest over the timber lease granted to Daishowa. We would never have agreed to call off the growing nationwide protest if Daishowa had not agreed to stay out of our unceded traditional territory until there was a settlement of Lubicon land rights and an agreement negotiated with the Lubicon people respecting Lubicon wildlife and environmental concerns.[para32] Although this is a pivotal event in these proceedings, it is not possible for the Court to make any findings at this stage as to the results. All of those in attendance would be required to give oral evidence. An opportunity should be afforded to Kitagawa to resolve what appear to be inconsistencies in his evidence as indicated from the excerpt above.
[para33] At this stage, the most that can be said is that both Kitagawa and Ominayak appear to honestly hold their respective views about what transpired.
[para34] Lennarson had agreed at the meeting to forward to Kitagawa a map demonstrating the "area of concern." He did so by letter dated March l4, l988 in which he pointed out:d) August 1990 to November 1990... The area outlined in blue is the area over which the Lubicon people intend to retain wildlife management and environmental protection responsibilities post-settlement.[para35] Kitagawa responded to Lennarson by letter dated March 25, 1988 in which he wrote:The wildlife management and environmental protection responsibilities will be spelled out in our Forest Management Agreement, however, we will endeavour to cooperate and consult with the Lubicon people prior to the planning and harvesting of the timber resources.[para36] Upon receipt of that letter, Ominayak wrote to Kitagawa by letter dated April 2, 1988 in which he begins and ends by saying: "Apparently we failed to communicate adequately during our meeting on March 7, 1988." He went on to indicate: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.[para37] If Kitagawa replied to that letter, it was not included in the material.
... 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.
[para38] In August, 1988, Kitagawa became President and Chief Executive Officer of DFPL, the parent company of Daishowa Inc.
[para39] In 1989, the Forest Management Agreement was signed.
[para40] DCCL acquired at least one local logging company, Brewster Construction (Brewster).
[para41] Ominayak deposes that, on August 17, 1990, an Alberta Provincial Forestry Ranger gave him a document entitled "Proposed Timber Harvesting Activities 1990/91." The document indicated that the Alberta government had granted five timber leases in the unceded traditional Lubicon territory to four different logging companies. All five of these licences were for "Timber Harvesting for Mill Facility."e) August 1991 to November 1991
[para42] On August 31, 1990 Daishowa spokesman Wayne Crouse was reported in the newspaper to have said that a wholly owned Daishowa subsidiary and three other Daishowa related companies "will be logging in the area that is claimed to be the traditional (Lubicon) hunting and trapping areas this winter."
[para43] Ominayak's affidavit reflects the various meetings, conversations, media reports and events, the details of which are not repeated here. By the end of October, 1990, he reported that a Daishowa subcontractor, Buchanan, commenced logging in the unceded Lubicon territory. On November 19, 1990 Brewster began clearcutting fifteen to twenty-six hectare stands of spruce and aspen on unceded Lubicon land. Thomas further reports that Lennarson informed him that the Lubicon were told on November 23rd that the area that Brewster was planning to log was about one thousand hectares in seventy days. Thomas indicates that one hectare is the size of approximately two football fields and equates fourteen hectares a day to almost thirty football fields a day. Ominayak asserts that, in the interval between the late summer and fall of 1990, Daishowa spokespersons variously denied the existence of the March 7, 1988 agreement, reneged on it, or altered its terms.
[para44] Based on the materials before the Court, it is not apparent the extent to which logging did take place that winter. Logging can only occur in the winter months when the ground is frozen.
[para45] It is apparent from the materials filed by Ominayak and Thomas that these events caused considerable consternation for the Lubicon Cree.
[para46] On August 16, 1991 it was reported in an article in "Windspeaker" that:Jim Morrison, general manager of Daishowa's Edmonton office, said in an interview Daishowa has no plans for a major logging operation this fall.[para47] A resident of Quebec had written to Hamaoka by letter dated July ll, 1991 to which James Morrison (General Manager, Edmonton Office DCCL) responded on August 22, 1991. Among other points made by Morrison, he indicated as follows:
However, a subsidiary - Brewster Construction - does plan to log in unceded Lubicon land but nowhere near the two hundred and forty-three square kilometre proposed reserve area. (emphasis added)Brewster Construction Ltd. was acquired in October of 1989 and subsequently became a subsidiary of Daishowa Canada. This sawmill has been in existence for 13 years and has been harvesting its timber quotas on the east side of the Peace River without incident or confrontation for the past 12 years. All of Brewster's timber quotas are outside the specified reserve area for the Lubicon Band. Last year, recognizing the sensitivity of the negotiations, Brewster modified its logging plans for new areas, in the hope that talks would be restarted. However, further delays are no longer possible. (emphasis added)[para48] A copy of that letter was made available to Ominayak shortly thereafter.
[para49] While the details are not provided in the material, it is apparent that the planned logging in the area of concern that winter was again a cause of concern. A meeting took place on October 28, 1991 which included Ominayak, Wayne Thorp (General Manager Alberta Woodlands, DCCL), and one other. By letter dated October 31, 1991, Thorp wrote to Ominayak and indicated as follows:Thank you for meeting with Mr. Heinen and myself on October 28, 1991 to clarify our confusion regarding the sensitive geographic area of concern to the Lubicon Lake Indian Nation.[para50] That letter is attached as an exhibit to the affidavit of Tom Cochran, Director, Corporate Development of DFPL. Both Thomas and Ominayak indicate in their affidavits that the first they saw that letter was after the motion record was served with a copy attached as an exhibit. The map referred to in the letter is not attached in the copy filed as an exhibit. Ominayak states in his affidavit that, at the meeting on October 28th, no commitment was made not to purchase timber cut in the unceded traditional Lubicon territory.
As we discussed in the meeting, Daishowa possesses many different maps that vary considerably from the one you sent attached to the letter dated March 14, 1988 to Mr. Koichi Kitagawa.
As I promised at our meeting, please find attached a map showing the approximate location of the area of concern which you have referred to as the "lubicon territory still used and occupied by Lubicon people" (transferred from the map you sent Koichi Kitagawa on March 14, 1988 and confirmed at our meeting of October 28, 1991).
As we also advised you, Daishowa's Peace River Pulp Division or Subsidiaries will not be harvesting or purchasing from any supplier within the sensitive area of concern during this coming logging season. (emphasis added)
[para51] This is the first year of Daishowa's self-imposed moratorium. Based on the evidence of Ominayak and Thomas, that step was not communicated to the Lubicon Cree.
[para52] By letter dated November 6, 1991, Thomas wrote to Hamaoka at DCCL and indicated as follows:... 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.[para53] Morrison responded by letter dated November 8, 1991, the text of which is as follows:
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. (emphasis added)
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.
... There is no need for Daishowa to go through the kind of public ordeal you are heading for. Now is the time for a clear public commitment from Daishowa. Otherwise we will have no choice but to mobilize our membership to the utmost of our capabilities. We will expect your response promptly. (emphasis added)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.[para54] Morrison did not refer to his letter to Ominayak dated October 31, 1991.
You may not be aware that Daishowa Canada (and its subsidiaries) have elected to avoid the area of concern to the Lubicons this winter .... (emphasis added)
[para55] Thomas wrote again to Hamaoka by letter dated November 10, 1991. Since this letter contains considerable detail with respect to the position taken at that time, communicated subsequently to customers in the boycott campaign, and hence part of the basis on which tortious conduct is alleged, it is reproduced here: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.[para56] As Thomas indicated in his cross-examination, until even that date in April, 1995, he had not had a response from Hamaoka or any other Daishowa representative.
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 lev!»overnment 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 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.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?
* In an April 12, to 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 agreement, 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 direct 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."
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. We will look forward to hearing from you.
[para57] On November 11, 1991, the Friends of the Lubicon issued a press release. The text of this release is objectionable to the plaintiff. It appears to be the first press release announcing the boycott. Because of the significance of the press release, it is reproduced here:For Immediate Release[para58] In anticipation of the demonstration on November 14, 1991 at the Daishowa Toronto offices, the Friends of the Lubicon prepared a leaflet. The text is similar to the press release.
November 11, 1991
Attn: News Desk
It's 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.
Stop the Genocide
The Lubicon see the impending destruction of their forest as the final stage of a genocidal process that began with the onset of government-backed oil and gas development in the late seventies. It is essential that the pressure be kept on Daishowa to stop any cutting on Lubicon territory.
You can make a change
Friends of the Lubicon (Toronto) join with all supporters of the Lubicon people to condemn this action and to demand that Daishowa make a clear, firm and public commitment to not cut on unceded Lubicon territory until after settlement of Lubicon land rights and negotiation of a harvesting agreement with the Lubicon people that takes into account Lubicon wildlife and environmental concerns.
Friends of the Lubicon call on everyone to support the demonstration against Daishowa on
November 14, 1991, from 4 to 6 pm
at 161 Bay Street (Bay & Front)
More Lies from Daishowa
A March 7 agreement between the Lubicon and Daishowa provided that Daishowa would stay out of the unceded Lubicon territory until there was a settlement of Lubicon land rights.
Since then, Daishowa officials, including Canadian Vice President Mr. Tom Hamaoka, have claimed that* their subsidiary and subcontractors weren't covered by the agreement
* terms of the agreement were satisfied by the totally unrelated Grimshaw Agreement
* the agreement only provided there would be no logging in "new areas"
* the agreement only covered the proposed reserve area
* there wasn't and never had been any agreement.
Daishowa says 'It's not our problem'
On a recent visit to Japan, Lubicon chief Bernard Ominayak was denied a meeting with Daishowa officials who said the destruction of Lubicon land was not their concern - that it was solely an issue between the Lubicon and the federal government.
On October 7, Daishowa VP Tom Hamaoka, in a speech to the Edmonton Chamber of Commerce said: "Daishowa is not here to be a mediator: we're here to do business."
In the same speech, Mr. Hamaoka said: "The Canadian and the Provincial governments simply must face up to their responsibilities across Canada to settle Native land claims." He said "It's totally unacceptable to subject business - foreign or domestic or innocent third parties - to hostile threats and potential violent actions associated with unresolved land claims."
Ottawa promised the Lubicon a reserve in 1930. There have been no negotiations between the Lubicon and the federal government since January 1989.
BoycottLubicon supporters are calling for a boycott against those businesses that refuse to stop using Daishowa paper products.
[para59] The timing of this press release and demonstration is significant given the correspondence which had just been exchanged. Thomas had written to Hamaoka by letter dated November 10th asking for a response. These materials were prepared and distributed before there was any possibility of a response. At his cross examination, Thomas was questioned at great length about why the press release had been issued without affording a reasonable opportunity to Hamaoka to respond. As he indicated in his cross-examination:Q 71 Speaking of contradictions and speaking of inconsistencies, do you agree with me that the press release of November 11th, 1991 which says "Within the next few days Daishowa will begin clear cutting the traditional unceded territory of the Lubicon Cree Nation is inconsistent with the written statement you have received from Daishowa Canada three days before which says Daishowa has elected to avoid the area of concern? Would you agree with me that the two documents are inconsistent?[para60] On November 26, 1991, the Friends of the Lubicon issued a press release, the contents of which were similar to the one reproduced above. However, in addition, it announced a press conference on November 28, 1991 to launch the national boycott of Daishowa products.
A. Actually I would not agree with it because as I have said clearly the very same day that there was this vague statement from Daishowa concerning the area of concern, there was a report in the Edmonton Journal where Daishowa was reported to be using faulty maps in a related dispute which discussed the area of concern. So they could be logging on Lubicon territories and saying it is not area of concern but it is something else.
[para61] As Thomas had indicated in his letter of November 10, 1991, a boycott campaign was underway. Before detailing those efforts, it is necessary to appreciate the means by which Daishowa Inc. carries on its business.b) Observations
[para62] The following are the two types of relationships between the Plaintiff and its customers:1. Through informal, ongoing relationships based on trust, Daishowa had oral discussions with its customers at which time the parties negotiated terms regarding price and volume.[para63] The customers of Daishowa Inc. fell into a number of general categories:
2. Alternatively, after a tender was accepted, a distributor would issue to Daishowa a "piece of paper" representing an open purchase order. This order would set out the volume of specified products the customer in question will require over a certain time period. Daishowa would then manufacture the product to ensure it would be available to the customer when delivery was required. If, for some reason, the customer switches suppliers or no longer requires the bags it originally ordered, the common practice is for the customer to purchase the existing manufactured products it already ordered as well as the raw material that Daishowa already purchased. When a customer switched suppliers, it was considered a regular aspect of doing business and, therefore, is not regarded as a breach of contract or an opportunity to sue for performance or non-payment of monies owing.(1) fast food companies such as A & W, Kentucky Fried Chicken, Pizza Pizza, Swiss Chalet, Country Style Donuts, etc.;[para64] The Daishowa packaging division does not have any manufacturing facilities outside of the province of Manitoba. It does not use any wood fibre or other raw material from northern Alberta.
(2) major and small retail chains across Canada including Woolworth (Kinney), Holt Renfrew, Bootlegger Stores, Club Monaco, Roots and other similar customers;
(3) other large accounts such as Canada Safeway or the Liquor Control Board of Ontario: and
(4) smaller retail grocery or other stores or chains.
[para65] According to both Ominayak and Thomas, the plans for the boycott began in the summer of 1991. In response to undertakings by Thomas at his cross-examination, he produced approximately 200 pages of copies of correspondence, enclosures, press releases and newspaper reports prepared in the course of the boycott.
[para66] In general, the boycott campaign included the following elements:(1) A representative of the Friends of the Lubicon contacted a customer by telephone. That contact was followed up with written material. Sometimes, the original contact was by letter. The request was made to stop using Daishowa products.[para67] In 1991 the standard initial letter to the customer was as follows:
(2) The written materials varied. Thomas indicated that copies of exactly what was sent to any customer were not retained. However, he did provide what was described as a sample package. This included a 5 page backgrounder outlining events that occurred since 1939-40. There are only three references to Daishowa, two of them indicating that "in 1990 Daishowa started clear-cutting on Lubicon land, breaking an agreement it made with the Lubicon that it would not do so until Lubicon land rights were settled." The third reference indicated that in 1991 "A national boycott of Daishowa is launched to protest that company's intention to log Lubicon land." (This backgrounder must have been updated from time to time since the version provided ends in 1993 and consequently could not have been the same version used in 1991).
The material also includes copies of Updates prepared by the Friends of the Lubicon from time to time, again not all of which existed at the outset.
Also included in the information package were copies of letters from other customers of Daishowa confirming that they were joining the boycott. Press reports were included that referred to customers joining the boycott.
The sample information package includes Morrison's letter, dated November 8, 1991 (and the position paper referred to in that letter), and Thomas' letter dated November 10, 1991 (reproduced above).
(3) There was follow up by phone, letter or fax that increasingly encouraged co-operation. The typical method of encouragement was to indicate that the customer's business would be the subject of a boycott. In two cases, a consumer boycott took place.
(4) When the customer agreed to stop using Daishowa products, a press release was issued. In most cases, the customer provided a letter which was also circulated.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 clearcutting 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 clearcutting 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.[para68] The material provided indicates that 35 customers of Daishowa Inc. were contacted between 1991 and 1995. To consider the allegations made by the Plaintiff, it becomes necessary to review these efforts. It would appear that not all correspondence has been provided. The following analysis is done in chronological order based on the documented initial contact with the customer as provided by the defendants.
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.
1. Liquor Control Board of Ontario[para69] By letter dated August l5, 1991, Kenda wrote to the Chairman of the LCBO. In this letter, he asked whether the Chairman knows that:2. CulturesDaishowa Canada Ltd. is violating a March 1988 agreement not to log unceded Lubicon Lake Indian territory.[para70] The letter further asserted that:Daishowa's clear cutting continues to accelerate the cultural genocide.[para71] In his closing paragraph, he stated:Rather than sustaining support for this morally indefensible cultural slaughter and in keeping with Ontario's commitment to ameliorate the plight of aboriginal people, The Friends of the Lubicon strongly urge the LCBO to employ an alternate source for its paper bags.[para72] By letter dated September 20, 1991, Mr. Brandt indicated that Daishowa was the only supplier in Canada of the bags with handles designed for elderly and handicapped persons. While the needs of customers had to be appreciated, he indicated he would have the purchasing department consider the request.
[para73] By letter dated October 24th, Kenda asked for a meeting. By letter dated October 27th, Kenda wrote to the Ontario Liquor Board Employees' Union, apparently enclosing the preceding correspondence, reciting the violation of the March 1988 agreement and asking for support in convincing the LCBO to stop using Daishowa products.
[para74] By letter dated December 17, 1991, Kenda wrote to Marilyn Churley, Minister of Consumer and Commercial Relations, with copies to the Premier and other Government officials. He enclosed materials, referred to the support of other organizations for the boycott, and requested a meeting.
[para75] By letter dated January 21, 1992, Kenda enclosed a book and confirmed the meeting on February 17.
[para76] By undated letter (but before February 17), Kenda reported that Safeway, Mr. C's Donuts and NOW Magazine had stopped purchasing Daishowa paper goods. He asked for support for the boycott and indicated that it will be called off:When Daishowa unequivocally and firmly agrees not to log or buy wood from unceded Lubicon lands pending a Lubicon land rights settlement and an agreement concerning Lubicon wildlife and environmental concerns.[para77] On February 17, Kenda issued a press release reporting that "the Ministry has decided to stop using Daishowa paper products." He added that the LCBO would be switching to 4 bottle string handled bags. The release contained the following:... Although her ministry will no longer be using Daishowa, Ms. Churley added that she could not issue a statement in support of the boycott as the issue of a boycott was a policy matter. Policy matters are handled by the caucus.
Friends of the Lubicon spokesperson Stephen Kenda feels that regardless of what the Ministry says, it's clearly the Daishowa boycott and the sustained pressure of the Lubicon supporters that has pushed the LCBO to dump Daishowa. Kenda added "We are pleased that the LCBO is showing the ethical sense to let its Daishowa contract lapse; it's hard to believe that anyone would want to support the clearcutting of the Lubicon Indian Homelands.
The LCBO joins Mr. C's Donuts, Cultures Fresh Foods, Ho-Lee Chow, the Body Shop, Now Magazine and others who have made the switch away from Daishowa. The LCBO move leaves Pizza Pizza further isolated in its pact with Daishowa. Country Style Donuts, another Daishowa user, is said to be on the verge of joining the boycott and will make its decision soon.
Daishowa is a Japanese transnational paper giant. An international boycott of Daishowa is attempting to stop Daishowa's plans to clearcut unceded Lubicon Lake Indian lands in northern Alberta.[para78] On November 6, 1991, Bianchi sent the standard initial letter reproduced above. Bianchi received a response dated November 14, 1991 as follows:3. Knechtel Food StoresAfter careful research into the current situation in Alberta, Cultures Fresh Food Restaurants has decided to stop using Daishowa products.[para79] Apparently, that letter did not reach Bianchi before he sent his letter dated November 20th which is used in other cases and reproduced here:
Please note that while Cultures will no longer be purchasing paper products from Daishowa, there exists a large inventory of Daishowa paper products with the Cultures logo. Until the inventory is depleted, new paper products from our new supplier will not be seen in Cultures Fresh Food Restaurants for some time. (emphasis added)Please be advised that we are holding a press conference in Ottawa on November 28 to announce a national boycott of Daishowa paper products.[para80] We hope to hear from you before November 28.
Lubicon Chief Bernard Ominayak will be part of the Press Conference. He will be joined by representatives of other organizations who support the Lubicon Cree.
Those businesses that refuse to stop using Daishowa products will be named as boycott targets.
We sincerely regret having to send you this correspondence. We had hoped you would be more understanding and cooperative. Changing paper suppliers is little to ask when the alternative involves the genocide of an aboriginal community. This struggle has lasted over 50 years and unless PEOPLE take action NOW to correct this injustice there will be no chance for the Lubicon people.
The traditional territory of the Lubicon - their environment - is essentially our environment as well. If the Lubicon lose, we all lose.
[para81] (Note that this letter was used on several occasions. It will be referred to below as the "press conference letter.")
[para82] It is apparent that the November 20th letter reached Bianchi because, by letter dated November 29, C. Hadden, on behalf of the Friends of the Lubicon, acknowledged the letter and their support and confirmed that Cultures was mentioned in the press conference as supporting the boycott.
[para83] An article in the Edmonton Examiner appeared in the December 14-15 edition reporting on Cultures' support.[para84] Bianchi sent the standard initial letter dated November 6, 1991 and followed up with a fax on November 15 in which he stated as follows:4. Ho Lee ChowWe are aware that Daishowa Canada Co. Ltd. has sent you a copy of their current "position" on the Lubicon Lake Nation situation. Enclosed is our reply to that "position" as well as an editorial from last Monday's Edmonton Journal on the subject of negotiations.[para85] On November 20th, Bianchi sent the press conference letter. By letter dated November 25, 1991 Knechtel responded as follows:
As you can see, Daishowa has still not made a clear, firm and public commitment not to cut or buy wood cut on unceded Lubicon territories until after a land rights settlement has been reached with both levels of government and negotiation of a harvesting agreement with the Lubicon Nation which takes into account Lubicon Wildlife management and environmental concerns. Until such a time we are continuing all action against Daishowa.
We hope you'll support this action by choosing a different supplier for your packaging. Don't hesitate to call if you have more questions or concerns. (emphasis added)First of all Mr. Bianchi, I would like to thank you for your numerous correspondences you have sent me over the last few weeks concerning the Lubicon Nation.[para86] Once again, this letter did not reach Bianchi before he sent a letter dated November 25th similar to the press conference letter above but asking for a response by November 27th which was the day before the press conference.
I have had time to read both sides of the problem and I have to side with the Friends of the Lubicon.
Mr. Bianchi, I have notified Daishowa and Bruce Edmeades (the distributor) of Knechtel's intention to source a new supplier for the "K" print paper bag, after existing supplies have run out.
... I have to agree with you, Mr. Bianchi, in this environmental and survival struggle: if the Lubicon lose - we all lose. (emphasis added)
[para87] Knechtel was referred to as supporting the boycott in an article in the Toronto Star on November 26th, in the Edmonton Journal on November 29th, and in the Edmonton Examiner.
[para88] By letter dated November 29th, C. Hadden acknowledged and thanked Knechtel, and confirmed that its support was mentioned at the press conference on November 28th.[para89] Bianchi sent the standard initial letter dated November 6th, 1991. He sent the press conference letter dated November 20, 1991. He sent a further press conference letter dated November 25, 1991, however, he requested a response by November 27th.5. Pizza Pizza
[para90] By letter dated November 25, 1991, Ho-Lee-Chow advised:On behalf of Ho-Lee-Chow restaurants, I am pleased to inform you that we are in the process of depleting the remaining printed Daishowa paper products in stock, and have already switched our business to a supplier which does not utilize Daishowa Products. (emphasis added)[para91] C. Hadden wrote by letter dated November 29 thanking Ho-Lee-Chow for its support and confirming that its support had been mentioned at the press conference.[para92] In some respects, this is the most controversial customer. It is one of two customers where a consumer boycott was actually carried out.6. The Added Touch
[para93] Bianchi sent the standard initial letter dated November 6, 1991 and the press conference letter dated November 20, 1991. Bianchi sent the second press conference letter dated November 25, 1991 asking for a response by November 27, 1991, or else Pizza Pizza would be added to the boycott list.
[para94] Bianchi sent a letter dated November 26, 1991 pointing out that a response had not been received notwithstanding the deadline that was set for yesterday (which would be the 25th when the November 25th letter required a response by November 27th). The letter enclosed copies of letters of support from two other companies "who have made the decision to cancel contracts with Daishowa" as well as related press coverage and indicated:As it stands, we were set to name four companies who would be subject to a boycott at our press conference in Ottawa this Thursday. However, with the agreement of these other companies, yours is the only one which will be named.[para95] On November 28th, the day of the press conference, a press release was issued by the Friends of the Lubicon. This release specifically referred to Pizza Pizza and announced a demonstration at its Yonge & Elm outlet on the following Saturday. The text is similar to the first press release.
We are simply asking you to find a new supplier for your paper products. The moves made by these other companies shows that this is not a lot to ask when the survival of a whole community is at stake.
Should you make a similar commitment not to use Daishowa products, we will not need to initiate a boycott of Pizza Pizza outlets. We will look forward to hearing from you.
[para96] Pizza Pizza was referred to in articles in the Toronto Star and the Edmonton Journal concerning the boycott.
[para97] On December 11, 1991 the Friends of the Lubicon issued "an open letter concerning the boycott of Daishowa" that was addressed to Pizza Pizza (the production includes only the first page). The author expressed disappointment that Pizza Pizza has refused to meet. It also indicated a need for Daishowa to make:a clear, public and unequivocal commitment not to cut or to buy wood cut on unceded Lubicon territories until a land rights settlement is reached with both levels of government and a harvesting agreement negotiated with the Lubicon Lake Nation.[para98] On December 12, 1991, The Friends of the Lubicon issued a press release that was similar to the release set out above but identified various Pizza Pizza locations where demonstrations would occur.
[para99] On December 29, 1991, a press release was issued by the Friends of the Lubicon indicating that:Lubicon supporters have resolved to flood Pizza Pizza's central phone lines (967-1111) on New year's Eve (Dec. 31) with calls proffering New Year's greetings coupled with appeals in the spirit of the season to boycott Daishowa paper products.[para100] On January 21, 1992 and January 30, 1992, The Friends of the Lubicon issued further press releases.
[para101] On March 3, 1992, Lorn Austin, Executive Director of Pizza Pizza issued a press release that defended Daishowa, and while asserting that the franchise owners were the scapegoats of this dispute, stated that joining the boycott was the only responsible course of action.
[para102] On March 4, 1992, the Friends of the Lubicon issued its own press release calling off the boycott against Pizza Pizza but remarking that they had "kicked their [i.e. Pizza Pizza's] butts."
[para103] An article appeared in the Toronto Star on March 4th. Bianchi took exception to parts of the article and wrote to the Editor by letter dated March 9, 1991 in which he stated as follows:... First, Friends of the Lubicon is not an "anti-logging" group. We are a working group on the Lubicon Nation's struggle and have provided direct support to the Lubicon Lake Cree since 1988. We ARE anti-Daishowa because its plans to clear-cut Lubicon territory threaten the Lubicon community, ignore the rights of the Lubicon people, and are environmentally irresponsible.[para104] An article appeared in the March 12-19, 1992 edition of NOW Magazine in which Bianchi is quoted as saying:
Second, Friends of the Lubicon never said Pizza Pizza bags contain wood cut from trees on Lubicon Land. If that's the case, then Pizza Pizza knows something we don't! Friends of the Lubicon asked people to boycott Pizza Pizza because it was using Daishowa products.
Finally, although everyone has a right to their own opinion, misleading and inaccurate propaganda disguised as fact must be revealed. When Pizza Pizza says "Daishowa is causing no problems for the Lubicon people" it ignores the fact Daishowa's clear cutting operation would destroy what is left of the Lubicon's land, and virtually eliminate any chance the Lubicon have for building a decent future. Pizza Pizza's statement shows how little they understand the situation in Alberta.We're very pleased Pizza Pizza has decided to join the boycott: ... It's unfortunate they did it for purely economic reasons and not because of the threat Daishowa poses to the Lubicon community. Still, it's a very important turn of events.[para105] The same article quoted a spokesperson for Pizza Pizza indicating that the boycott is only temporary:We're going along with the boycott until the land dispute with the federal government is settled. (emphasis added)[para106] The pattern was followed in November, 1991. It ended when a letter dated November 23, 1992 was sent to the Friends of the Lubicon as follows:7. Country Style DonutsThe Added Touch wishes to emphasize its position that it does not support any political or social cause other than to promote charity and goodwill throughout the community. On the subject of the Lubicon Indians and the Daishowa logging rights, The Added Touch has no comment.
However, for the record, The Added Touch purchased 20,000 large shoppers from a company in June 1991 which at the time was using recycled Daishowa paper products. Since that time, we have switched suppliers for reasons other than the Lubicon Issue which is evident in the more recently purchased small and mid size shoppers. (emphasis added)[para107] The initiative began in early November, 1991. However, it appears in this instance that Country Style Donuts had some communication with Daishowa. This is evident from the fax sent by Thomas dated January 27, 1992:8. The Body ShopThe enclosed are recent communications from Daishowa in which they offer their position on the impending clearcuts of Lubicon traditional territory. While Daishowa has been telling you since early January they plan to send you a written promise not to clearcut until there's a settlement of Lubicon land rights, they've been clearly saying the opposite to everyone else. (emphasis added)[para108] On March 27, 1992, the Friends of the Lubicon issued a press release indicating that Country Style Donuts had joined the boycott of Daishowa paper products, joining 10 others.
Rather than waiting for a promise that doesn't seem to be forthcoming, it would seem appropriate for Country Style to write Daishowa informing them that contracts won't be renewed unless they make such a promise. In our experience you have to push these guys to get them to move on anything.
What do you think?
P.S. Mr. Hamaoka is adept at stretching the truth or simply making things up when it suits his purposes. The enclosed pieces are no exception and I'd be willing to contradict his statements with hard facts at your convenience.
[para109] By letter dated June 13, 1992 Thomas thanked Country Style Donuts, not only for joining the boycott, but for efforts to obtain a statement from Daishowa not to cut in unceded lands.[para110] It is not apparent when initial contact was made.9. NOW Magazine
By letter dated December 5, 1991, The Body Shop:... confirm[ed] that [it] chose to remove Daishowa products from all of our Canadian Stores in January of 1991 upon learning of the dispute between Daishowa Canada and the Lubicon Lake Cree Nation.
Since that time, we have not purchased additional Daishowa products and will not do so until the current situation is satisfactorily resolved. (emphasis added)[para111] The only correspondence is a letter from NOW Magazine to Koichi Kitagawa dated January 8, 1992 which indicated as follows:10. Safeway... We have since been distressed to learn that Daishowa is permitting and profiting from lumbering operations on land claimed by the Lubicon nation of Alberta, despite Lubicon opposition.
This is unacceptable to us and millions of other Canadians who take native rights very seriously. Accordingly, NOW magazine will not buy any more Daishowa products until the Lubicon claim is resolved. I trust you will advise your head office of the serious damage done to your reputation in Canada by operations prejudicial to the vital interest of native people. (emphasis added)[para112] The only material produced is a press release dated January 20, 1992 by Alberta Environmental Alliance/Alberta Action Network which reports that Safeway had agreed to stop using Daishowa products following a joint letter from the two organizations issuing the press release. In addition to stopping the use of Daishowa paper bags at its counters, the release indicated that "Safeway also agreed to conduct an internal review to ensure that it is neither using nor selling Daishowa products." The release referred to Daishowa having broken an agreement not to log until an agreement had been made.11. Mr. C's Donuts[para113] The only material produced is a letter dated February 24, 1992 from the company indicating:12. Water Sports... Six months ago, we had requested that our distributor change their supplier of paper bags from DAISHOWA when we became aware of the controversy surrounding this issue.[para114] By letter dated March 17, 1992, Thomas forwarded information, reported that Daishowa had not cut that winter, but suggested Daishowa would do so next winter "when the heat is off." He indicated that the "economic pressure" of the boycott had probably held them off that winter.13. Maison Du Fromage
[para115] By letter dated June 17, 1992, Thomas sent copies of letters from other companies that had joined the boycott and indicated:Your participation in the boycott of Daishowa is still essential. They fully plan to continue logging this winter unless people like ourselves put pressure on them to stop logging activities until a land rights settlement is reached for the Lubicon people. We appreciate your commitment to this matter and your decision to join the boycott.[para116] On June 18, 1992, Water Sports sent its own confirming letter indicating that existing stock would be used before a new supplier would be used.[para117] The initial letter was sent March 26, 1992. A response was received dated May 13, 1992 confirming that no further purchases would be made and indicating agreement that:14. Bootlegger... resource development on unceded Lubicon lands must only occur with the permission of the Lubicon people.[para118] In a letter dated May 23, 1992, Sara McDowell, on behalf of the Friends of the Lubicon, indicated that they had been monitoring the negotiations between Bootlegger and the Daishowa Boycott Coalition in Calgary. In view of a refusal to support the boycott, Bootlegger outlets in the Toronto area would be boycotted. The letter describes the campaign previously undertaken against Pizza Pizza and its final acquiesence. It further stated:15. Cumberland TerraceThe planned clearcutting of unceded aboriginal land and the subsequent genocide of an entire aboriginal culture is a crime against humanity and the environment we all live in.[para119] By letter dated May 27, 1992, Bootlegger referred to its earlier correspondence but concluded:Unfortunately, your plight as it turns out, is of a different nature, but one you have chosen to involve us in despite our reasoning with you. We strongly object to your methods, but advise you that we are seeking out new packaging suppliers. (emphasis added)[para120] The initial letter from Thomas is dated July 3, 1992. By letter dated November 17, 1992, Thomas confirmed that an alternate supplier would be found. He further stated:16. A & W... We are pleased that [you] have chosen to help isolate a company whose environmental and human rights record is questionable - so questionable, in fact, that this month Daishowa was named to Survival International's top ten list of "companies that do not listen or care" specifically because of their continued threat to clearcut unceded Lubicon Lake Nation territories.[para121] On November 19, 1992, Cumberland Terrace sent its own confirming letter indicating that, when current supplies were depleted, an alternate supplier would be obtained.[para122] By letter dated July 3, 1992, Naomi Robinson forwarded an information package with the initial letter and asked that:17. Cowboy Chuck'syou ... make a decision in advance not to buy Daishowa paper products when the time comes to re-order.[para123] By letter dated September 3, 1992, Thomas followed up and indicated:time is not on our side. Daishowa is planning to begin logging again this fall, which means that those who oppose this move have got to make their voices heard immediately. Therefore we will be expecting to be informed of your decision regarding paper suppliers by September 11 at the latest.[para124] In this letter, Thomas also indicated that, failing a response by September 11th, or a negative decision, they would begin a boycott of A & W.
[para125] A reply was received in the form of a telephone message confirming that A & W would stop using Daishowa products but refusing to put it in writing. The telephone message ended as follows:I'd like you not to call me back and I'd like you also to arrange it so that none of the other organizations you're associated with calls us either. We've spent a lot of time on this issue. It's been very painful and unpleasant thing for us to come to this decision, and I would like this to be the end of it." (emphasis added)[para126] On September 25, 1992, Thomas wrote to A & W confirming receipt of the message and indicating that a verbatim transcript would be distributed in lieu of the letter requested.
[para127] On September 27, 1992, Naomi Robinson issued a press release confirming that A & W had joined the 16 other companies then participating in the boycott. There was no mention of the breach of the 1988 agreement. It did, however, point out that the information available:... suggests that Daishowa plans to begin clearcutting unceded Lubicon territories as soon as the ground freezes this fall.[para128] The release concluded with this:The Lubicon society has been devastated by ongoing oil and gas exploration and Daishowa now presents the greatest single threat to their survival. The federal government is continuing to sabotage Lubicon affairs and has repeatedly proven unwilling to negotiate in good faith, therefore only massive public pressure can stop this impending genocide.[para129] Thomas sent an initial letter dated July 28, 1992. By this time, the initial letter had been modified by deleting reference to the breach of the March, 1988 agreement.18. Hospital for Sick Children
However, it referenced the cutting in the fall of 1990 and named the companies already in the boycott.
[para130] A reply was received dated October 9th, 1992 confirming that, when supplies were exhausted, an alternate supplier would be found. The author also offered to use his influence with another individual to do the same.[para131] In November, 1992, Kenda sent a lengthy letter to nine individuals. In this letter, he forwarded various identified materials including correspondence between Friends of the Lubicon and Daishowa illustrating respective positions and rationales. A similar letter, again with many copies, was sent to a doctor on January 15, 1993. On January 27, 1993, Kenda sent a letter to the President of the Hospital for Sick Children Foundation in which he outlines the communications which had occurred but from which a clear resolution had not been achieved as to whether an alternate supplier would be found. He indicated that he had received letters of support from eight individuals at the Hospital. Letters to three doctors were sent on the same date to the same effect.19. KFC
[para132] By letter dated March 23, 1993, the Hospital confirmed that it would stop using Daishowa paper products.
[para133] A press release was issued on March 29, 1993 confirming the Hospital's participation in the boycott. There is no reference to the 1988 agreement or to genocide. However, the release indicated a belief that "boycott pressure has been significant in keeping Daishowa off Lubicon land for 2 consecutive winters" while stressing the need to maintain the pressure to prevent cutting in the fall.[para134] An initial letter such as that sent to the Hospital was sent by Kenda on September 21, 1992. In this letter, there is no mention of the March 1988 agreement or of genocide.20. Morgan Scott Group
[para135] A similar letter, dated October 1, 1992 was sent to another corporate official. It appears the KFC readily agreed to stop purchasing Daishowa products but refused to put that commitment in writing. As a result, Kenda wrote by letter dated October 26, 1992 requiring a written commitment or a nationwide KFC boycott would begin November 5th.
[para136] A response was received by letter dated October 27, 1992, an excerpt of which is as follows:KFC Canada currently purchases limited quantities of a "carry-all" bag from Daishowa, accounting for a fraction of one per cent of all packaging purchases. Plans have been under way for some time to replace this product with updated packaging, manufactured by another supplier, as part of a major package re-configuration and design project.[para137] By letter dated October 28, 1992, Kenda confirmed receipt and expressed disappointment as to the rationale. He indicated that he nonetheless considered that KFC had joined the boycott.
Our intentions are to deplete current inventories of the Daishowa bag and discontinue it's production.
It should be understood that this decision was made on it's own financial and operational merits, independent of the ongoing issues between the Lubicon people and Daishowa.
[para138] A press release, dated October 28, 1992, was issued by the Friends of the Lubicon confirming that KFC had joined the boycott albeit reporting the expressed reason. This press release does not refer to the March 1988 agreement but closes in similar terms as the A & W release with reference to genocide.[para139] An initial letter was sent by Kenda dated December 7, 1992 which was similar to the Hospital letter. No further correspondence is provided. It does not appear that Morgan Scott participated in the boycott.21. Hudson's Bay Centre[para140] A letter dated January 14, 1993 was written to the Friends of the Lubicon confirming that the Merchants' Association would be finding an alternate supplier when the current supply was used. This letter also indicated:22. Woolworth'sI would like to mention that we are not passing judgement on Daishowa Canada Inc. company (sic), given that we are not fully aware of the entire situation, but only responding to the strong requests of the Friends of the Lubicon.[para141] On January 21, 1992 (should be 1993), Thomas issued a press release confirming that the Hudson's Bay Centre was the 23rd company to join the boycott. This release also contained the following:
Cindy, you will be pleased to know that Daishowa Canada Inc. company (sic) has just issued a press release saying that they will continue to refrain from harvesting in the areas of concern to the Lubicon this winter. I have attached the release for your reference.Daishowa's response to inquiries by the Hudson's Bay Centre concerning Daishowa's plans to clearcut almost the entire unceded traditional territory of the Lubicon Nation was to send the Centre a copy of the attached press release. Although dated November 25, 1992, no media source contacted so far has acknowledged ever receiving or even hearing of such a release. The release announces that Daishowa will not log in the disputed area this winter. Despite lofty and transparent claims of corporate responsibility, it's clear that it is only public pressure in the form of the boycott campaign that has once again held back Daishowa for another winter. Daishowa's past history has shown that they are all too willing to continue clearcutting on Lubicon land as soon as this pressure is off, therefore the announcement of a one-season moratorium is insufficient. On the contrary, it gives us even more reason to increase the boycott pressure until we get a clear, public and unequivocal commitment not to cut or buy wood cut on unceded Lubicon territories until a land rights settlement is reached with both levels of government and a harvesting agreement negotiated which takes into account Lubicon wildlife and environmental concerns.[para142] This is the second customer which was picketed.23. Cruickshank's Inc.
[para143] By letter dated February, 1993, Nancy Graham, on behalf of the Friends of the Lubicon, sent a package. As indicated above, a sample package was provided in response to an undertaking. The sample was that which was forwarded to Woolworth's and consisted of over 25 pages described earlier.
[para144] A further letter was sent on March 23, 1993 that was similar to the Hospital letter. Another letter dated May 15, 1993, was sent confirming a conversation with an official that the next paper bag purchase after the current contract expired would be based on "business considerations." Kenda asked for reconsideration of the rationale.
[para145] By letter dated June 2, 1993, Kenda indicated that he required a response by June 8th, otherwise a boycott would be undertaken. By letter dated June 14, 1993, Kenda reflected his disappointment with Woolworth's refusal to meet or engage in a dialogue. He indicated that a news conference would be held on June 23rd to announce the boycott unless a written commitment was made in the interval.
[para146] By letter dated November 23, 1993, Kenda indicated that the boycott would centre around Northern Reflections. It also pointed out:Direct competitors Roots and Club Monaco have examined our information concerning the multi-national and government plundered Lubicon.[para147] By letter dated January 8, 1994, the Western Canada Wilderness Committee confirmed to Woolworth's that it had received a commitment "for economic reasons" that Woolworth had not renewed its contract to purchase Daishowa paper products. It is apparent from the letter that WCWC had an arrangement whereby its materials were sold in Woolworth's stores. In this letter, the author indicated that, if Woolworth's did buy Daishowa paper products, those materials would be removed from the store.
[para148] On January 12, 1994, a press release was issued by the Friends of the Lubicon, the headlines of which were:WOOLWORTH SURRENDERS TO DAISHOWA BOYCOTT PRESSURE[para149] An excerpt from the press release is as follows:
TORONTO PAPER SUPPLIER, OMNIPLAST INC., LOSES ITS BIGGEST CONTRACTSuccumbing to intense public pressure, the over 1600 stores of Woolworth Canada Inc. have swelled the ranks of the international boycott of Daishowa-Marubeni paper products in support of the Lubicon Cree Nation of northern Alberta to over 4300 stores.
... The Woolworth decision comes after over a half year of public action organized by the Lubicon solidarity network of which Friends of the Lubicon (Toronto) is a part. Actions have included store front pickets, protest phone-in's, fax attacks, a mail campaign, boycott information dissemination and "anything else we could think of to kick their asses." Lubicon supporters count the Woolworth decision as their biggest victory to date in their battle to help prevent the resumption of clearcut logging on unceded Lubicon land by Daishowa.[para150] In a letter dated May 3, 1993, Cruickshank's confirmed that it would use an alternative source when next ordering. The letter also indicated:24. Roots... We hope that this new supplier will suit our purposes and in so doing we fully support your endeavour and hope this will help you. (emphasis added)[para151] The initial letter, dated May 10, 1993 was sent by Kenda and was similar to the Hospital letter. By letter dated April 4, 1994 Roots indicated:25. BowringAt Roots, we support a strong philosophy to preserve what we have today, for future generations. This means a concern with our environment and materials within our environment.[para152] The Friends of the Lubicon issued a press release dated April 5, 1994. There is no reference to the March 1988 agreement or to genocide.
After assessing the situation in Alberta, we decided that Roots would no longer support Daishowa Canada Co. Ltd. in purchasing our paper products.
Once our inventory from Daishowa depletes, we will be working with our new suppliers. ...[para153] The only letter is dated May 17, 1993 from Bowring thanking Thomas for his patience and indicating:26. Mr. Smith Boutiques... the dispute is amongst the Provincial Government, Daishowa-Marubeni and the Lubicon Indians.
For the purpose of expense control only, the Canadiana Shoppe will be converting to poly bags once its existing stock of paper bags is depleted.[para154] The initial letter sent by Ben Bradshaw on behalf of the Friends of the Lubicon was dated June 8, 1992. It appears from subsequent correspondence that this letter was actually sent in 1993. It encloses the material referred to in other letters but the letter itself makes no mention of the 1988 agreement or of genocide.27. Club Monaco
[para155] Bradshaw followed up by letter dated February 17, 1994. It does not appear that Mr. Smith Boutiques joined the boycott.[para156] Thomas wrote on August 23, 1993. After a follow up in January, 1994, a response was received dated March 4, 1994 confirming that it would place no future orders of Daishowa paper products.28. Holt Renfrew
[para157] On April 5, 1994, Club Monaco was referred to in the same press release as Roots.[para158] On February 17, 1994, Bradshaw wrote enclosing the information package. A further letter, dated March 30, 1994, was sent in which he indicated that, failing a response by April 12, 1994, a boycott would begin. By letter dated April 25, 1994 Holts indicated conversations had taken place between Kenda and Holt's counsel. It further advised that an alternate supplier would be found.29. The Nature Shop
[para159] A press release dated April 25, l994 was issued by the Friends of the Lubicon indicating that the picket scheduled to begin April 30th was cancelled because Holts had agreed to participate in the boycott.[para160] Kenda sent the initial letter dated May 9, 1994.30. Aquascutum Canada Inc.
A response, dated May 31, 1994, was received and confirmed that the nine retail locations operating as The Nature Store and The Canadian Naturalist would find an alternate supplier.[para161] Kenda sent the initial letter dated June 10, 1994. A follow-up was sent August 17, 1994 in which reference was made to a documentary shown by the CBC's "The Journal" which concluded that "The Lubicon Lake Indians have survived half a century of official neglect and political deceit ... [but] ... cannot survive the destruction of the land around them." In this letter, Kenda asked that a new supplier be obtained when the current supply was exhausted. Further material is not provided but it appears that Aquascutum joined the boycott.31. Cobblestones[para162] Kenda sent the initial letter dated June 14, 1994. It does not refer to the March 1988 agreement or genocide. It did indicate that 46 companies, representing over 4300 retail outlets, had committed in writing to joining the boycott.32. Soapberry
[para163] By letter dated January 6, 1995, Kenda confirmed his understanding that another supplier had been retained and asked for a letter to that effect.[para164] On August 21, 1994, Lise Fournier, on behalf of the Friends of the Lubicon, sent an initial letter. This was a follow-up from previous telephone conversations.33. ROM
[para165] A response dated November 16, 1994 was received and an excerpt of which is as follows:Careful research into the situation in Alberta has prompted us to stop purchasing paper bags made by any company associated with Daishowa Canada. Our current stock is almost depleted and we will be using more environmentally responsible paper products throughout our stores within a few weeks.A press release dated November 18, 1994, was issued by The Friends of the Lubicon which ended:
Good luck in your continued efforts. We strongly endorse the boycott of Daishowa and hope others join us. (emphasis added)Will Daishowa come onto Lubicon land clearcutting as they did in 1990?[para166] The initial letter written by Kenda was sent July 9, 1994. In a response dated September 23, 1994, the President indicated that the situation would be reassessed when the existing inventory was depleted.34. & 35. Laura Secord and Movenpick
[para167] Kenda followed up with a letter dated October 5, 1994 in which there were two references to genocide. It stated that, absent a response by October 17, 1994, a boycott would begin.
[para168] The ROM Reproductions Association responded by letter dated October 13, 1994 pointing out its particular interest in preserving the heritage of the peoples of Canada and fostering a respect for the environment. It reinforced that, with a supply of bags likely to last "a number of years," it could only commit to a reassessment at that time.[para169] Letters were sent in January and February, 1995.
Neither referred to the1988 agreement or to genocide, however, it enclosed the information package.
[para170] As indicated above, the foregoing review is based on the productions of the defendants. Some of the many affidavits filed on behalf of the plaintiff refer to the same materials as well as to additional materials, including letters between the plaintiff and some customers.
[para171] Based on a review of all of the affidavits, exhibits, and productions, the following observations can be drawn:1. As time passed, the initial letter and follow up letter became increasingly more informative and less antagonistic.
2. The information package provided as a sample contained statements about genocide and breach of the March 1988 agreement. It is not possible to ascertain whether that package was similarly more moderate over time.
3. The information package and many letters included Daishowa's own position paper and correspondence. It is a reasonable inference that, if DCCL had responded to Thomas' November 10, 1991 letter, it too would have been included in the package.
4. Some customers took the initiative to communicate with Daishowa before making a decision. In some cases, the plaintiff contacted the target customer directly (through Gordon Bunt or Tom Homaoka) and exchanged correspondence or had meetings.
5. Some customers replied affirmatively almost instantly.
6. Some of the press releases were copied to Daishowa thereby giving Daishowa an opportunity to send its own press release in response.
7. There were opportunities when the viewpoints of Daishowa and the Friends of the Lubicon were canvassed in the media.
8. The Friends of the Lubicon were not alone. There is no question that Toronto customers were specifically the focus of the Friends of the Lubicon, however, other organizations and individuals (none of whom are parties to these proceedings) were also involved.
9. Some customers changed suppliers apparently for reasons other than support for the boycott. Whether the reason given was primarily for public consumption or not cannot be ascertained.
10. Initially, the request was to terminate the customer's contract with Daishowa. Over time, the focus was to find a new supplier when current inventory was exhausted.
11. There is no evidence that any contracts were broken.
In most cases, the customer indicated that the switch would be made when the supply was exhausted.
12. Undoubtedly, Pizza Pizza and Woolworth's (the only two customers picketed) were influenced by the picket to change suppliers.
13. Some of the retail outlets were franchises or similar arrangements. This means that decisions made may have been influenced by the contractual arrangement between head office and the outlet (as with Pizza Pizza).
14. According to the evidence, Daishowa issued press releases in late 1992, 1993 and 1994 indicating that it was continuing the self-imposed moratorium that began in 1991. Thomas indicated that they had not been made available to Ominayak or to Thomas at the time of issuance. The only one specifically referred to is in the letter from the Hudson's Bay Centre in which the customer forwarded a copy (presumably received from Daishowa) to the Friends of the Lubicon. Much of the concentrated effort by the Friends of the Lubicon (and others) was in the summer and fall in anticipation of winter logging. It is a reasonable inference, based on the material available, that there was a direct connection between the boycott activity and the decision to carry on the self-imposed moratorium (whether the announcement was widely disseminated or not).
In other words, the boycott was successful in its stated aim to prevent logging until Daishowa made a clear, public and unequivocal commitment not to cut or to buy wood cut on unceded Lubicon territories until a land rights settlement has been reached with both levels of government and a harvesting agreement negotiated with the Lubicon people.
15. There is no evidence of violence or threat of violence.
16. Some customers were plainly irritated by the boycott.
17. Some customers (for example Holt Renfrew and the ROM) may have been particularly vulnerable to the boycott because of previous boycott activity.
18. There is no evidence that any customer was unable to fill its paper product needs elsewhere.
19. Some customers were clear that their choice of alternate supplier was temporary and that business with Daishowa would resume when the issues were resolved.
20. The defendants approached distributors directly (Omniplast, Progress Packaging, and Fancy Pak).
21. A concerted effort was made by the plaintiff to counteract the actions of the defendants and others.
It produced a position paper and a fact book which were designed to inform the reader of Daishowa's position. The extent of its circulation is unknown.
In addition, Daishowa Inc. removed its name from packaging materials to make it more difficult to identify the source of supplier.
22. Affidavits were provided by executives of three customers of Daishowa Inc.: Michael Overs, Chairman of Pizza Pizza; Don Shafer, President of the Comac Food Group; and Brian Worts Director of Retail Leasing for the Oxford Suburban Group. In each case, the executives reported on the steps taken by the defendants and the extent to which each had communicated with Daishowa Inc. The affidavits specifically stated:a. Overs (Pizza Pizza): his refusal to be "threatened or blackmailed into joining a boycott"; his ultimate conclusion that he "had no choice but to give into this blackmail;" his assertion that "it was only the economic pressure on my independent and entirely innocent franchises which forced me to give in to the pressure;" his belief that "our franchises were being exploited by these intimidation tactics;" and his agreement to "stop dealing with Daishowa, under protest."23. The plaintiff includes 26 customers as representing discontinued supply services.
b. Shafer (Company's Coming Bakery Cafes): his assertion that "we were clearly being pressured, intimidated and coerced into joining the boycott of Daishowa, even though this was over our objections"; his conclusion that "we ... (would) not give into their pressure and continued to purchase from Daishowa notwithstanding the boycott."
c. Worts (Woolworth's): his description of Kenda as "threatening and offensive in his tone" and "rough and ill-mannered;" his decision to stop using Daishowa for reasons unrelated to the boycott but he did not so advise the defendants "because we did not want them to believe that their contact with our company had pressured us into this response."
24. In that group, at least two stated that the reason for changing suppliers was unrelated to the boycott (Bowring, KFC) and the LCBO refused to state a reason publicly.
25. The materials produced by the defendants indicated that they, or other individuals or groups, approached 35 customers.
26. Excluding the LCBO (where no public statement was made but the evidence suggests the boycott was the reason), the defendants assert that 24 of the 35 companies changed suppliers because of the boycott.
27. In the most recent of the defendant's materials, the Friends of the Lubicon indicate that "at least 43 companies representing 4300 retail outlets have joined the boycott."
[para173] The evidence of damages is supported by:
a) The affidavit of Bunt where he attributes lost revenue to some specific customers.[para174] The defendants take issue with the data provided to support the damages claimed for a number of reasons including:
b) The "scrambled" analysis by numerical (but otherwise unidentified) customers.
c) Undertakings from the cross examinations from which there has been no further examination.
d) Hundreds of pages of invoices and bills of lading (with customer name removed) to support the analysis contained in the undertaking.
a) Because of the plaintiff's concerns about confidentiality, scrambled data was provided. Accordingly, one cannot ascertain the amount of loss attributed to a particular customer.[para175] Notwithstanding these efforts to criticize the damages formulation, there is no question that the plaintiff has experienced a significant loss of revenue. It is only common sense that, if 43 businesses (representing 4300 outlets) have changed their paper suppliers, the impact is considerable.
b) Some customers indicated expressly that the change in suppliers was for reasons other than a boycott. Even if that were the reason for public consumption only, should those be included?
c) Other individuals and groups were involved. The defendants indicate involvement with 35 customers but the most recent material indicates that 43 companies have joined the boycott. It is impossible to ascertain the extent to which the defendants' own actions contributed to or caused the customer to change paper suppliers. Consequently, it is impossible to attribute a particular loss, and therefore particular damages, to these defendants. The other individuals and groups are not parties.
d) The extent to which lost revenue leads to lost profit is not apparent at this stage.
e) The plaintiff has attempted to counteract the boycott effect by seeking, and apparently, obtaining business elsewhere, thereby moderating the effect of the lost revenue. The extent to which (if any) this "mitigation of damages" should be taken into consideration cannot now be ascertained.
[para178] Counsel for the plaintiff took the position that the cross-examinations could double as examinations for discovery, that little more was required in the way of productions from the defendants, that no examination would be required of the other defendants, and that the plaintiff would be ready for trial in late 1995 but preferably early 1996. He estimated that the plaintiff's case would take 6-8 days.
[para179] Counsel for the defendants indicated that considerable work had yet to be undertaken on damages, that examinations were not complete, that much of the plaintiff's evidence was based on information and belief necessitating an analysis of the sources of the information, and that a trial would take "months" and would not be heard for "many months." She added that, with the disparity of resources between the parties, a trial was "out of reach of the defendants" and that "the reality is that there will not be a trial."
[para180] In making his submissions as to whether the test for granting an interlocutory injunction is a "serious issue to be tried" or a "prima facie case," counsel for the defendants urged the latter because it falls within the exception noted in RJR- MacDonald Inc. v. Canada (Attorney-General) (1994), 111 D.L.R. (4th) 385 (S.C.C.), that the higher test should be applied where, as here, "a trial is fictional: the only chance the defendants has is today because they will not be able to mount a defence to a trial".
[para181] Later, counsel for the defendants indicated that, if a trial did take place, the defendants would not have the resources to be represented but they would personally participate, testify, and provide an explanation to the judge as best they could.
[para183] In addition, Professor Joan Ryan provided a detailed affidavit describing the plight of the Lubicon Cree based on her personal experience and study in the years following her doctorate in Anthropology in 1973. In summary, she described:
a) The traditional society and lifestyle is dependent on their territories for hunting, trapping, fishing and gathering; for harvesting subsistence foods and hides; for spiritual connections, for social interactions and for the socialization of the coming generations. The Lubicon lands and lives are intimately and inexorably connected.[para184] In her affidavit, Dr. Ryan referred to the Webster Dictionary definition of genocide as:
b) Oil and gas developments in unceded lands began in the 1950's which increased activity and decreased game in the area.
c) The completion of an all weather road in 1979 greatly increased access to the area with concomitant problems associated with car accidents, alcohol consumption, drugs and interference with traplines.
d) A significant reduction in income from trapping and a consequential increase in dependency on social assistance.
e) Significant changes in diet due to reduction in moose, medicinal plants, and berries resulted in nutritional and spiritual loss.
f) In summary, a loss of income, employment, spirituality, traditional medicine and potable water, leading to depression, anger, loss of role by elders, and suicides.
the deliberate and systematic destruction of a racial, political or cultural group.[para185] She expressed the opinion that, by documenting for 15 years the destruction of the Lubicon people, their way of life, and their culture, she found that the destruction has been deliberate and systematic. She further stated that the cumulative negative effects of resource depletion and government neglect have created increased rates of welfare, social pathology, decrease in income, and the destruction of a way of life and of the quality of life for individuals. These impacts were labelled "genocidal consequences" by the World Council of Churches delegation which visited the area in 1984 - a characterization with which she agreed.
[para186] Dr. Ryan also expressed the following opinion:
[T]he vision of having Daishowa cut 11,000 trees per day is so formidable that the Lubicon people cannot imagine how they will survive ... the struggle of the Lubicon people over the last fifteen years has now reached the point where people are exceptionally weary, depressed, losing hope, losing strength and endurance.[para187] Finally, at paragraph 36, she stated:
In February, 1995, Daishowa made an announcement indicating they were changing their previously announced policy and would not purchase aspen salvage logs from seismic roads and well sites on unceded Lubicon traditional lands. The Lubicon people feel a constant threat that Daishowa will begin clear cutting. This feeling has been aggravated by the unilateral change in policy and the injunction application, which makes the threat seem even more real. In my opinion, the uncertainty and lack of security caused by these threats have a destabilizing effect on the community. This uncertainty has caused fear for the future, a sense of loss of control, and has made the community less able to solve its problems. I believe that if Daishowa is permitted to proceed with any clear cutting before the settlement of the land claim, the Lubicon people will cease to exist as a viable Band able to restructure its culture and able to create a future for their children. In other words, the process of the genocidal destruction of the Lubicon Cree society will be completed.
[para189] After considering the matter with his clients, counsel for the defendants indicated that they would consent to give an undertaking in the following terms:
Our clients cannot consent to an injunction prohibiting them from saying that an agreement not to log until the land claim was settled and until Lubicon wildlife and environmental concerns were met was reached at the meeting of March 6, 1988, because we believe Chief Ominayak when he says under oath there was an agreement on that date. To consent to an injunction would call into question his words. However, I have instructions from my clients that if the Court requests it, they will undertake to this Court not to assert that such an agreement was made March 7, 1988, and that undertaking will remain in effect for whatever period your Honour thinks appropriate.[para190] At Paragraph 149 of the defendants' factum, the following appears:
If this court finds that some of the activities of the Defendants were tortious, it is submitted that the core of their activities were lawful and constituted an important contribution to public debate and discussion on an important issue. If it is found that some of the means used by the Defendants were improper, the Defendants undertake to this Honourable Court to monitor their activities more carefully in the future and avoid any improper activity. That being so, the balance of convenience favours dismissing the Plaintiff's application for an interim injunction, since no further unlawful activities will take place.
1. Interlocutory injunctionsa) Interlocutory Injunctions
2. The causes of action alleged by the plaintiff in the statement of claim.
[para192] In RJR-MacDonald Inc., the applicants challenged the constitutional validity of the Tobacco Products Control Act on the grounds that it is ultra vires the Parliament of Canada and invalid as it violates s. 2(b) of the Charter. The Quebec Superior Court had granted the applicants' motion, however, the Court of Appeal allowed the respondent's appeal and found that the Act was not ultra vires. Although the Act infringed s. 2 of the Charter, it was justified under s. 1. The Supreme Court of Canada granted leave to appeal. The Governor-in-Council then published amendments to the regulations under the Act which stipulated that larger, more prominent health warnings must be placed on all tobacco products. Further, the packaging changes must be in effect within one year. The applicants contended that compliance with the new regulations would require them to redesign all its packaging, it would take close to a year to effect at a cost of about $30 million, and the expenses would not be recoverable if the legislation were found to be invalid. The applicants brought motions to ask the Supreme Court of Canada to delay the legal effect of the regulations which had already been enacted and to prevent public authorities from enforcing them. The applicants further requested that the stays be granted for a period of 12 months from the dismissal of the leave application or from a decision of the Supreme Court confirming the validity of the Act.b) Causes of Action Alleged by the Plaintiff
[para193] The Court held that generally, the same principles should be applied by a court whether the remedy sought is an injunction or a stay. The applicants are only entitled to this relief if they can satisfy the test laid down in Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832 (1987), 38 D.L.R. (4th) 321,  1 S.C.R. 110. That case adopted the following three-stage test that courts should apply when considering an application for either a stay or an interlocutory injunction:a) A preliminary assessment must be made of the merits of the case to ensure that there is serious question to be tried.
b) It must be determined whether the applicant would suffer irreparable harm if the application were refused.
c) An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.(i) The strength of the plaintiff's case - American Cyanamid Co. v. Ethicon Ltd.,  A.C. 396 established that, on an application for interlocutory relief, an applicant must satisfy the court that "the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried." This standard, subject to the occasional reversion to a stricter prima facie standard, is now generally accepted by Canadian courts. The Supreme Court of Canada here agreed with the conclusion of Beetz J. in Metropolitan Stores that "the American Cyanamid 'serious question' formulation is sufficient in a constitutional case where the public interest is taken into consideration in the balance of convenience."
[para194] The threshold is low in order to satisfy the test of "a serious question to be tried." The judge on the application must make a preliminary assessment of the merits of the case. Once satisfied the application is not vexatious or frivolous, notwithstanding that the plaintiff is unlikely to succeed at trial, the motions judge should proceed to consider the second and third tests.
[para195] Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits:The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial.[para196] The Court indicated that cases in which the applicant seeks to restrain picketing may well fall within the scope of this exception. The circumstances in which this exception will apply are rare. A more extensive review of the merits of the case must be undertaken when the exception does apply. The anticipated results of the merits should be borne in mind when the second and third stages are applied.
[para197] The second exception arises when the question of constitutionality presents itself as a simple question of law alone.
[para198] The suggestion has been made in the private law context that, where the factual record is largely settled prior to the application, a third exception to the "serious question to be tried" standard should be recognized.
(ii) Irreparable Harm - Beetz J. in Metropolitan Stores determined that "the second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm." The Court in RJR-MacDonald went on to say:At this stage, the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.(iii) Balance of inconvenience and public interest - The third test to be applied in this application was described by Beetz J. in Metropolitan Stores as "a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits."
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where ... one party will suffer permanent market loss or irrevocable damage to its business reputation ... The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt,  Q.B. 142 (C.A.)) ... Until the law in this area has developed further, it is appropriate to assume that the financial damage which will be suffered by an applicant following a refusal of relief, even though capable of quantification, constitutes irreparable harm.
[para199] That case made clear that, in all constitutional cases, the public interest is a "special fact" which must be considered in assessing where the balance of convenience lies and which must be "given the weight it should carry."
[para200] "Public interest" includes both the concerns of society generally and the particular interests of identifiable groups. The Court rejected any approach that excludes consideration of any harm not directly suffered by a party to the application.
[para201] Lord Diplock, in American Cyanamid, held that when other factors appear to be evenly balanced, "it is a counsel of prudence to ... preserve the status quo." This approach is of limited value in private law cases, and generally, has no merit in the face of the alleged violation of fundamental rights.
[para202] In RJR-MacDonald, a serious question to be tried existed as the case raised serious questions of law. Monetary loss of the nature in that case will not usually amount to irreparable harm in private law cases. Where the government is the unsuccessful party in a constitutional claim, however, a plaintiff will face a much more difficult task in establishing constitutional liability and obtaining redress. The expenditures in R.J.R. MacDonald therefore constituted irreparable harm.
[para203] Although the harm suffered may be irreparable, the Court concluded that it would not affect the long-term viability of the applicants as they are large and successful corporations and have a greater capacity to absorb any loss than would many smaller enterprises. They could also pass on some of their losses to their customers in terms of price increases. It was for the applicant to offset the public interest of the legislation in protecting and promoting public health by demonstrating a more compelling public interest in suspending the application of the legislation. The only possible public interest was that of smokers not having the price of a package of cigarettes increase. The increase, however, was not excessive and was purely economic. Any public interest in maintaining the current price could not be given much weight. The balance of convenience weighed strongly in favour of the respondent and was not offset by the irreparable harm that the applicants may suffer if relief was denied.
[para204] In Ontario (Attorney-General) v. Dieleman (1994), 117 D.L.R. (4th) 449 (Ont. Ct. (Gen. Div.)), Adams J., at p. 655, held that Metropolitan Stores and RJR-MacDonald had considered the appropriate approach to interlocutory injunctions. He set out the fact that Beetz J., in the former case, held that the American Cyanamid "serious question" formulation was sufficient in a constitutional case provided the public interest was taken into consideration in the determination of the balance of convenience. He then cited the passage at p. 339 where Beetz J. elaborated on how the public interest should be approached in Charter cases when considering requests for interlocutory relief.
[para205] In discussing RJR-MacDonald, Adams J. cited the passage by Sopinka and Cory JJ. at pp. 402-4 where they generally accepted the appropriateness of the American Cyanamid "serious question" test and described two exceptions. Adams J. emphasized the first, namely, when the result of the interlocutory motion will in effect amount to a final determination of the action as well as the passage where the Court held that "[c]ases in which the applicant seeks to restrain picketing may well fall within the scope of this exception."Adams J. then went on to discuss "irreparable harm" and the balance of convenience test as set out in RJR-MacDonald.
[para206] Adams J. held that the application before him fell within the first RJR-MacDonald exception to the "serious question" requirement because it involved picketing. The impact of the injunction would "tend towards finality given the imbalance in resources available to the respective parties." These concerns are magnified when an alleged constitutional right will be enjoined. Adams J. concluded that the more appropriate test to be applied in the case before him was the demonstration of a prima facie case.
[para207] There are many other cases to which reference is made in the facta. Only the foregoing have been chosen as representative of the principles relevant to this application.
[para208] The torts alleged in this case are as follows:(i) Misrepresentation(i) Misrepresentation
(iii) Injurious Falsehoods
(v) Wrongful interference with economic interests
(vi) Inducing breach of contract
(viii) Conspiracy[para209] Jarvis J., in Church & Dwight v. Sifto Canada Inc. (1994), 20 O.R. (3d) 483 (Gen. Div.) held that misleading statements in the context of advertising are actionable. In view of the overlap between misrepresentation and defamation, more will be said below on that subject.(ii) Defamation[para210] Adams J., in Ontario (Attorney General) v. Dieleman (1994), 117 D.L.R. (4th) (Ont Ct. (Gen. Div.)) stated:(iii) Injurious FalsehoodsAn 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. Words which merely insult are not actionable: see Raymon E. Brown, The Law of Defamation in Canada (Toronto: Carswell, 1987) vol. 1, pp. 40-4, 100, 218-21. Fair comment on matters of public interest is protected speech. Where a person can demonstrate that words spoken are based on fact or expressions on a matter in which the public has an interest and a legitimate concern and spoken with an honest belief in the opinions expressed, then the statements constitute fair comment: see Gatley on Libel and Slander, 8th ed. (London: Sweet & Maxwell Ltd., 1981), paras. 691-2, and Cherneskey v. Armadale Publishers Ltd. (1978), 90 D.L.R. (3d) 321 at p. 330,  1 S.C.R. 1067, 7 C.C.L.T. 69.[para211] Adams J. referred to Canadian Tire Corp. Ltd. v. Desmond,  2 O.R. 60 (H.C.J.). The Court applied Canada Dairies Ltd. v. Seggie,  4 D.L.R. 725 (Ont. S.C.) at pp. 730 and 733 per Mackay J. (as he then was):But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.[para212] In adopting the language of Lord Esher, M.R. in Coulson v. Coulson, 3 Times L.R. 846, the Court further held that the jurisdiction to grant an interim injunction "ought only to be exercised in the clearest cases."
[para213] The Court in Dieleman referred to Rapp v. McClelland & Steward Ltd. (1981), 128 D.L.R. (3d) 650 (Ont. H.C.J.) at pp. 653-4, 19 C.C.L.T. 68 at 74, where the Court held:[An] injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way, where it is impossible to say that a reasonable jury must inevitably find the words defamatory the injunction should not issue.[para214] Adams J. also referred to Fleming, The Law of Torts, 8th ed. (1992), at p. 594 where it is stated that "[i]n no event will an injunction issue if its effect is to restrain public discussion on matters of public interest."[para215] Jarvis J., in Church & Dwight Ltd., adopted the criteria set out in Fleming, The Law of Torts, 5th ed. (1977), p. 710 where he stated:(iv) NuisanceThis tort protects an interest in disposing of one's property, products or business. Statements which disparage property are actionable where they cast "an aspersion on the nature of his business or the quality of his merchandise as such."[para216] Jarvis J. went on to state:To make out this tort, a plaintiff must establish actual economic loss and that the offensive statements were false and made with the intent to cause injury without lawful justification (Fleming, supra). It has also been held that the party complaining of injury must have been identified by name.[para217] Rosenberg J., in Procor Ltd. v. U.S.W.A.(1989), 654 D.L.R. (4th) 287 (Ont. H.C.J.), held at p. 295:The tort of injurious falsehood requires the making of a false statement with "malice" to some person other than the plaintiff as a result of which the plaintiff suffers damage. W.V.H. Rogers, Winfield and Jolowicz on Tort, 12th ed., at p. 288:[para218] Rosenberg J. also affirmed the law as it stands that "[i]njurious falsehood is an action on the case. The common law requires the plaintiff to prove actual damage." He went on to state that the "damage must be monetary. There can be no compensation for injured feelings." Further,If the statement is due to the plaintiff's own fault he has no claim. The statement may be oral or written and even conduct conveying a false representation may be sufficient.[t]he plaintiff having proved publication of falsehoods concerning the plaintiff to third persons which has caused the plaintiff actual damage to succeed must also prove malice. Malice has been described as the absence of bona fides proven or reasonably inferred from the facts. Malice in the law of injurious falsehoods is sometimes equated with dishonest or improper motive.[para219] In Dieleman, Adams J. clearly laid out the law concerning nuisance. He referred to Royal Anne Hotel Co. v. Village of Ashcroft (1979), 95 D.L.R. (3d) 756 (B.C.C.A.) where it was held that, in an action based on private nuisance, the court must determine whether the defendant has interfered with the use and enjoyment of the plaintiff's land and whether the interference is unreasonable. Further, to constitute a legal nuisance, given that all human activity in an urban environment impinges on others to a lesser or greater degree, the annoyance or discomfort must be substantial and unreasonable. Adams J. referred to Fleming, The Law of Torts, 8th ed. at p. 418, where it is stated:(iv) Wrongful Interference with Economic InterestThe paramount problem in the law of nuisance is therefore to strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other.[para220] Adams J. went on to state:Nuisance cases usually turn on the gravity of the harm to the plaintiff and this requires a consideration of the character and duration of the conduct complained of. The classic statement in this regard is that the inconvenience must materially interfere "with the ordinary comfort physically of human existence ... according to plain and simple notions ... ": see Walter v. Selfe (1851), 4 De. G & Sm. 315 at p. 322, 64 E.R. at p. 852.[para221] Craig J., in Morgentaler v. Wiche,  O.J. No. 2582 (H.C.J.), held:The tort of nuisance is committed where the plaintiff is an occupier of land and the nuisance interferes with his use and enjoyment of land. The interference must be substantial and unreasonable. Physical damage to property is not required. Sensible personal discomfort, annoyance or inconvenience is sufficient. Pecuniary loss is not necessary. If the primary aim of the defendants is to injure the enterprise of the plaintiffs, this will be highly relevant.[para222] The Court in Williams et al. v. Aristocratic Restaurants Ltd.,  S.C.R. 762 agreed that picketing in itself does not constitute a nuisance ie. per Kerwin J. (Estey J. concurring) at 780. Each case must be decided on its own facts.
Secondary Picketing Cases
[para223] In this case, the plaintiff seeks an injunction against secondary picketing. Since secondary picketing may be classified in some circumstances as nuisance and, therefore, unlawful, a review of secondary picketing cases referred to by counsel in the non-labour or consumer boycott context is required. The following is a chronological analysis to reflect the evolution of the law.
[para224] In Slade & Steward Ltd. et al. v. R.W.D.S.U. (1969), 69 W.W.R. 374 (B.C.S.C.), the defendant union had a collective agreement with the plaintiff, a wholesale purchaser of fruits and produce, whose imported goods included grapes from California and Arizona. The union was affiliated with the B.C. federation of labour. The defendant secretary-treasurer of the federation issued a document declaring as "hot" all grapes imported from California and Arizona. The document went on to state that this would mean refusal on the part of trade union members to handle the grapes in any way. The grape boycott was implemented in order to admonish the labour conditions of farm workers in these states and to demonstrate support for the efforts of those grape workers to obtain 20th century wages and working conditions.
[para225] The defendant secretary-treasurer of the federation, at the time he issued the document in question, knew of the existence of the contracts of service between the employees of the plaintiff and the plaintiff. The Court concluded that interference with the contractual relations of the plaintiff and its employees was bound to damage the plaintiff and must have been intended to do so.
[para226] However, the Court also asserted that there was no tort if there was sufficient justification for interference with contractual relations. It was open to the supporters of the cause to lay the facts before people everywhere and urge them to refrain from buying these grapes. The actions taken here, however, deprived the plaintiff and its employees of any choice as to whether to participate in the boycott of the grapes. The situation therefore did not provide justification. The injunction was granted.
[para227] In Darrigo's Grape Juice Ltd. v. Masterson,  3 O.R. 772 (H.C.J.), two motions were before Keith J., wherein one plaintiff was Darrigo Grape Juice Limited and the second was Darrigo Food Markets (Ontario) Limited. The defendant was the same in both cases. The plaintiffs sought an interlocutory injunction restraining the defendant and any one acting in conjunction with him from watching, besetting or picketing outside their respective premises. The defendant, together with about 60 or 75 other persons, began picketing the premises in the first proceeding. The signs urged people to refrain from buying Darrigo's grapes. The object of the activities was to discourage the sale of grapes that had been provided to Darrigo's by a grower in California whose employment methods were the cause of great consternation and concern to many people. In the second proceeding, the defendant and others attended at the premises of that plaintiff where picketing was carried out for the same purpose. The defendant told the president of Darrigo Grape Juice Limited that picketing would be carried out at all the Darrigo stores.
[para228] Keith J. concluded that secondary picketing was illegal and that to condone these actions would import into the Province the social and economic battles of other people which end could not be foreseen. The injunction was granted.
[para229] In Halifax Antiques Ltd. v. Hildebrand et al. (1985), 22 D.L.R. (4th) 289 (N.S.S.C.T.D.), tenants who received notices to quit picketed outside a retail business located in a busy downtown section of Halifax that was owned by the same person who owned the company that was the legal owner of the apartment building in question. The tenants believed they were being asked to leave because they had children and, therefore, the placards displayed slogans to this effect. The plaintiff applied for an interim injunction to restrain the defendants from continuing what was described as peaceful picketing. There was no actual harassment of the plaintiff's employees or of its customers or potential customers. There was no evidence that any potential customers were intimidated or were prevented from entering. The plaintiff claimed there was a possibility of economic damage or harm to it if its customers were intimidated from doing business with the store. The plaintiff submitted the defendants' activity was secondary picketing and was illegal. In doing so, it relied on Hersees of Woodstock v. Goldstein,  2 O.R. 81 (C.A.) which is a case that involved secondary picketing in a labour dispute for which the Court granted an injunction.
[para230] The Court concluded that secondary picketing is not illegal in all circumstances. When there is a clear association between the employer and the party being picketed, and where the picketing is peaceful and does not involve any unlawful elements, the picketing may be legal. The Court further stated that there was a substantial relationship, certainly in the eyes of the individuals involved and in the eyes of the general public, and if the corporate veil of the plaintiff were pierced, there was also a substantial relationship in the eyes of common sense, between the landlord company and the plaintiff in this matter. They were both wholly owned by the same person.
[para231] The Court also found there is a substantial difference between labour picketing and the type of picketing which had taken place. This is because the former was a signal for the application of immediate and enormous leverage and because legislatures, for a long time, have dealt with labour picketing and permitted activities during picketing. Legislatures have also established labour boards to deal with some of the problems created by illegal labour action. A body of law has developed which is not always helpful to the determination of non-labour or civil picketing.
[para232] Peaceful picketing was found to be the exercise of the right of freedom of expression, whereas, union picketing can sometimes be much more than an exercise of expression and can trigger a work stoppage which effectively closes a business. Peaceful non-labour related picketing is not in the same category.
[para233] The defendants picketed at the place in question because they believed they would get more attention to the message they wished to convey than if they picketed in front of the apartment. They believed they would contact their landlord in that place and would bring substantial public pressure to bear against him to support a revocation of their notices to quit. The predominant manner in which they acted was not to cause financial loss to the plaintiff company.
[para234] If the method of expression used by the defendants had involved harassment or clear tortious actions or criminal actions, or other considerations that would have been unfair to parties other than the ones directly involved, the Court may have found their actions were in substance more than an attempt to express their opinions and to convey their message. The application for an interim injunction was dismissed.
[para235] In Ontario (Attorney General) v. Bear Island Foundation (1989), 70 O.R. (2d) 758 (H.C.J.), the defendant Indian bands, by various means, impeded construction on lands in which the bands were declared to have no ownership or aboriginal rights. The defendant issued a written statement which set out in part the purpose of the blockades. The statement, in part, read "To protect our status quo the Teme-Augama Anishnabai will re-establish the Wendalban and Misabi Blockades on the Red Squirrel Road, November 11, 1989."
The Attorney General for Ontario applied for an injunction restraining these demonstrations and activities.
[para236] The Court found that the defendants had no right to interfere with the construction of the road, however, they were doing just that. The Court stated that only at our peril will our society allow anyone to flout the law. The injunction requested was not aimed at nor would it prevent peaceful demonstration by those opposed to the building of the road. Peaceful demonstrators could express their opposition without standing within a few feet of where the work was actually being performed. The injunction application was allowed.
[para237] In Morgentaler v. Wiche,  O.J. No. 2587ºH.C.), the defendants engaged in numerous varieties of secondary picketing outside the Morgentaler clinic. Their actions ranged from accosting patients to thrusting plastic fetuses in their faces to assaulting escorts who brought patients into the clinic. The plaintiff applied for an injunction restraining enumerated activities.
[para238] Craig J. issued an injunction enjoining the enumerated activities. The conduct and actions of the defendants went well beyond what would be considered expressions of legitimate dissent in relation to the Clinic.
[para239] There was no relationship of a professional, business, social or other nature between the plaintiffs and the defendants. The Court indicated that secondary picketing had been dealt with in a labour relations context and those cases were relevant in this case. The Court referred to Hersees of Woodstock, and, specifically, the comments by Aylesworth J.A. regarding the absence of any relationship between the Union and the plaintiff, as well as the conclusion that the picketing was not carried out for the purpose only of obtaining or communicating information. Further, the Court adopted the premise that a right to secondary picketing, if any, is subject to the interests of the community at large and the right to trade.
[para240] In Assad et al. v. Cambridge Right to Life et al. (1989), 69 O.R. (2d) 598 (Ont. S.C.), the applicants were medical doctors who performed legal therapeutic abortions in an accredited hospital. The respondents were members of a right to life organization based in Cambridge who carried placards outside the offices of the applicants and accused the doctors of "killing" unborn babies. Two of the respondents had first met with the doctors in an unsuccessful attempt to dissuade them from continuing to perform abortions. At this point, two of these respondents informed the applicants that their offices would be picketed by members of the respondent organization. For approximately three months, once a week for two hours in the afternoon, about ten persons picketed in front of the offices and neighbouring building. At least two of the placards were of concern to the Court in that they stated "Dr. Assad stop killing unborn babies" and "Dr. Chan stop killing unborn babies". Dr. Assad deposed that certain of his patients were approached by the picketers and were advised not to attend at his office due to his "abortion activities." For about another 6 weeks the picketing activity was increased to four times a week. New signs then appeared stating "Dr. Assad stop killing unborn babies ... now!" and "Dr. Chan stop killing unborn babies ... now!" From then to the date of the application, picketing occurred twice a week, late in the afternoon, for one to two hours each day. The picketers parked their cars in the private parking lot and also impeded traffic on the street in question.
[para241] The Court found that, although the verb "to kill," may or may not, depending on its context, have a criminal or illegal implication, in this context, the average passerby seeing the placards would perceive the word "killing" as pejorative, ie., an accusation of illegal and criminal acts. Since the activities in question by the clinic were neither illegal nor criminal, to suggest otherwise was prima facie defamatory.
[para242] Freedom of expression is not an untrammelled right as the purpose of the placards denouncing the applicants was not to spark informed discussion on a matter of public and social interest, but rather, was to try to get them to stop an activity which, although regarded by the respondents as illegal or criminal, was not in fact illegal or criminal.
[para243] Secondary picketing is picketing by persons who have no relationship, "professional, business or social or otherwise" with the personnel subjected to the picketing (Morgentaler v. Wiche, Ont. H.C.J., May 5, 1989, unreported). No such relationship existed in the instant case.
[para244] The Court followed Hersees of Woodstock and held that the thrust of the case is the unwarrantable interference with the legitimate exercise of professional duties. Further, if one could say that the dissemination of information to the public, was, in fact, the object of the picketing, the object could have been accomplished much more effectively than by having pickets march up and down a small section of the street in front of the plaintiff's place of business.
[para245] Ontario (Attorney-General) v. Dieleman contains the most exhaustive analysis of secondary picketing in a non-labour context. In that case, the Attorney General sought to enjoin anti-abortion protestors from picketing outside homes and offices of physicians who conducted the abortions, as well as outside hospitals and three clinics where abortions were provided. The picketers were, for the most part, on public property and, at times, attempted to speak with the patients entering facilities offering abortions. The picketers' posters sometimes identified doctors by name and generally contained statements and graphic pictures protesting abortion. At the time the action was brought, the picketing was intermittent and involved only small numbers of people. An application for an interlocutory injunction was granted in certain respects.
[para246] This application involved picketing and the impact of an injunction. While not precisely the same as in labour matters, it would likely be comparable and, given the imbalance in resources available to the respective parties, would tend towards finality. Adams J. found that the applicant must therefore demonstrate that it has a prima facie case and a more extensive review of the merits of the case was therefore undertaken.
[para247] The Court found that the prolonged presence of picketers outside the homes of doctors engaged in providing abortion services constituted a prima facie breach of s. 423(1)(f) (watching and besetting) of the Criminal Code which is not saved by s. 423(2). The picketing of the homes of the physicians prima facie included purposes other than and in addition to the mere communication of information. These purposes were disclosed by the relentless nature of such activity and the availability of locations more directly involved in abortion services at which this same message might have been communicated. Adams J. held that these submissions, however, were obliged to contend with the defendants' reliance on the Charter. In the face of these conflicting interests, there had to be recourse to the principle that the law should develop in a manner consonant with the values underlying the Charter.
[para248] Posters not referring to physicians by name generally contained statements and graphic pictures protesting abortion. The Court concluded that these signs contained political commentary and social expression in its purest form.
The signs amounted to fair comment as they were expressions on a matter in which the public had an interest and constituted legitimate concerns and honest beliefs. No action in defamation could therefore lie to restrain the holding of a sign which read: "Abortion Kills Children" or "Abortion, Canada's Holocaust." Similarly, no action in defamation could lie to restrain the holding of a sign which purported to depict an aborted foetus whether or not the sign contained the previously mentioned words. A prima facie case of defamation did not exist in relation to these signs.
[para249] Adams J. did "not quarrel" with the following dissenting view of Dore J. in Bering v. Sharem 721 P.2d 918 (1986), at p. 943: "If the court were to deprive picketers of the words which most clearly embody the moral position of those picketers, it would eviscerate completely the debate concerning abortions." Offensiveness is often an important part of a speaker's message. Adams J. also pointed to Fleming, The Law of Torts, 8th ed. (1992), at p. 594 where it is stated that "in no event will an injunction issue if its effect is to restrain public discussion on matters of public interest."
[para250] With respect to secondary picketing, North American labour relations embraces a well understood difference between a proper "primary" target of economic conflict and an improper "secondary target" "wholly unconcerned" with the contract negotiations. Adams J. concluded that this approach to labour relations has no application to the picketing and protest activity at the clinics. In following Halifax Antiques, the Court held that peaceful non-labour related picketing is not properly subject to secondary picketing analysis. The intervenors argued that the primary relationship is between the defendants and the government, on the theory that the defendants wish to bring about a change in the law. The clinic and the doctors were argued to be secondary targets. This, however, was held to be an entirely arbitrary classification of the parties caught up in the "abortion debate." 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 had not been established.
[para251] The evidence revealed a prima facie interference with the reasonable use and enjoyment of the clinic locations and the homes and offices of physicians. A prima facie cases of nuisance at the hospitals, however, had not been made out. Abortion clinics and the homes and offices of physicians are not fairly compared to an industrialplant, a commercial establishment or a government location where picketing and protests are frequently encountered.
[para252] Two American cases were cited by counsel for the defendants. In the first, National Association for the Advancement of Colored People et al. v. Claiborne Hardware et al. 458 U.S. 886 (1982), the petitioners were members of an organization formed to express their dissatisfaction with a social structure that had denied them rights to equal treatment and respect. They had presented to public officials a petition with 19 specific demands dealing with issues such as desegregation, hiring of black policemen, public improvement in black residential areas, and selection of blacks for jury duty. The purpose of the petition was specifically stated to be a way to "gain equal rights and opportunities for Negro citizens." The petitioners did not receive a favourable response and decided to boycott the white merchants in the county. The purpose of the boycott was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The activities were generally peaceful, were conducted fairly irregularly, and primarily on weekends.
[para253] The boycott clearly involved constitutionally protected activity. Through the exercise of these First Amendment rights, petitioners sought to bring about political, social, and economic change. Through speech, assembly, and petition, rather than through riot or revolution, petitioners sought to change a social order that had consistently treated them as second-class citizens.
[para254] The Court found that secondary boycotts and picketing by labour unions may be prohibited as part of "Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife." While states have a broad power to regulate economic activity, the Court did not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. Expression on public issues has always rested on the highest rung of the hierarchy of First Amendment values.
[para255] A major purpose of the boycott was to influence governmental action. The petitioners certainly foresaw and directly intended that the merchants would sustain economic injury as a result of their campaign. The purpose of the petitioners' campaign, however, was not to destroy legitimate competition. The Court concluded that the right of the states to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution.
[para256] The nonviolent elements of the petitioner's activities were entitled to the protection of the First Amendment.
[para257] In Environmental Planning and Information Council v. Deltmold Publishing, 680 P.2d 1086 (1984) (Cal. S.C.), a newspaper publisher brought an action for a preliminary and permanent injunction against an environmental group for alleged interference with prospective economic advantage by reason of a consumer boycott, which the group urged, of the newspaper's advertisers. EPIC published a newsletter that criticized the newspaper's editorial policies on environmental matters and called on readers of the newsletters to refrain from patronizing businesses that advertised in the newspaper. EPIC brought a motion for summary judgment asserting that it had to be granted in order to protect its first amendment constitutional rights.
[para258] Summary judgment was granted in favour of the defendants. The object of the defendants, namely, to change the editorial policies of the newspaper in relation to public issues affecting the environment, was a lawful one. The means used to achieve this purpose, namely, a peaceful secondary boycott was also lawful. The Court followed NAACP v. Claiborne Hardware Co.458 U.S. 886, 102 S.Ct. 3409 which drew a crucial distinction between solely economic boycott activity, which can be and has been regulated, and political boycotts. As in that case, the defendants' activities constituted a politically motivated boycott designed to force government and economic change. The fact that the change which they sought here related to environmental quality, rather than racial equality which was sought in that case, could hardly support a different result.[para259] Adams J., at p. 675 of Dieleman, held that this evolving tort would appear to apply only if the picketing itself was unlawful. Nuisance is an example of a cause of action which could provide the unlawful means for an action based on interference with economic interest.(vi) Inducing Breach of Contract
[para260] The Supreme Court of Canada in International Brotherhood of Teamsters v. Therien,  S.C.R. 265 at pp. 278-281 stated that in that case, the defendants intended to injure the plaintiff by obstructing the operations of the company by means of a picket line, the defendants therefore suffered an economic loss, and this was accomplished by unlawful means. The Court held that one is not entitled to interfere with another person's method of earning a livelihood by illegal means. J.T. Stratford & Son Limited v. Lindley,  3 W.L.R. 541 (H.L.) confirmed those three criteria as constituting the tort of wrongful interference with economic interest.[para261] The Court in Dieleman referred to Lumley v. Gye (1853), 2 El. & Bl. 216, 118 E.R. 749, where the Court held that, in order to prove this tort, a plaintiff had to prove the defendant's knowledge of both the contract and its terms and that the defendant intended to procure a breach. There must be conduct by which the defendant directly persuades or induces a third party to breach a contract with the plaintiff.(vii) Intimidation
The cause of action also requires that the plaintiff suffer damage. Therefore, there must have been an actual breach of contract. Adams J. also stated that "[f]inally, a defendant may be justified in deliberately interfering with a plaintiff's contractual relations based on a moral duty to intervene or an action taken to protect against interference with the defendant's own rights;" see Klar, Tort Law (1991), at pp. 439-40.
[para262] In that case, a prima facie case of inducing breach of contract had not been made out as the record did not disclose either the existence or the terms of contracts between patients and physicians or between patients and clinics. There was also an absence of evidence to show that the clinics treated the failure of a patient to attend or to carry through her decision to have an abortion as a breach of contract.[para263] Rookes v. Barnard,  1 All E.R. 367 (H.L), at p. 397, held that the tort of intimidation may include the intimidation of other persons to the injury of the plaintiff. The Court applied chapter 18 of Salmond on the Law of Torts (13th ed.), p. 697, where it states:(viii) ConspiracyIn certain cases it is an actionable wrong to intimidate other persons with the intent and effect of compelling them to act in a manner or to do acts which they themselves have a legal right to do which cause loss to the plaintiff: for example, the intimidation of the plaintiff's customers whereby they are compelled to withdraw their custom from him...Intimidation of this sort is actionable ... There are at least two cases in which such intimidation may constitute a cause of action:- (i) When the intimidation consists in a threat to do or procure an illegal act; (ii) When the intimidation is the act, not of a single person, but of two or more persons acting together, in pursuance of a common intention.[para264] Gershman v. Manitoba Vegetable Producers Marketing Board (1976), 69 D.L.R. (3d) 114 at 120 (Man. C.A.) applied Clerk & Lindsell on Torts, 14th ed. (1975), where the Court set out the criteria for this tort at pp. 414-5:1. threat of an illegal act against that person;[para265] The Court in Morgan v. Fry,  C.A. 710 at 724 stated the following:
2. intention to injure either the person to whom the threat is directed or a third party;
3. compliance with the threat; and
4. resulting damage either to the person to whom the threat is directed or to a third party.According to Rookes v. Barnard the tort of intimidation exists, not only in threats of violence, but also in threats to commit a tort or a breach of contract. The essential ingredients are these: there must be a threat by one person to use unlawful means (such as violence or a tort or a breach of contract) so as to compel another to obey his wishes: and the person so threatened must comply with the demand rather than risk the threat being carried into execution. In such circumstance the person damnified by the compliance can sue for intimidation.[para266] Adams J., in Dieleman, applied Mulcahy v. The Queen (1868), L.R. 3 H.L. 306 at p. 317 where the Court held that a conspiracy is defined as an "agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means." Adams J. further followed Nicholls v. Township of Richmond,  3 W.W.R. 719 at pp. 730-1, 52 B.C.L.R. 302 (S.C.) where the Court held that "[a]n agreement, however, need not be in any specific form or constitute a binding contract." The Court in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd.,  1 S.C.R. 452 succinctly set out the tort of conspiracy. In that case, Estey J. held at p. 471 that the tort of conspiracy exists where:1. the means used by the two or more defendants are lawful or unlawful and the predominant purpose of the conduct of the defendants is to cause injury to the plaintiff; or[para267] To establish the tort in the first instance, a plaintiff must prove that the predominant purpose of the defendants was to cause (to the plaintiff rather than to act in the interests of the defendants. This test, as stated by Klar, Tort Law, supra, and followed in Dieleman, is a subjective one. He stated, however, that the defendants in that case were no more conspiring to injure than are trade union members when picketing or other citizens engaging in protest demonstrations. A prima facie case of conspiracy to injure was not established on the record. It is not necessary, however, that the predominant purpose in the second instance is to cause injury.
2. the conduct of two or more defendants is unlawful, is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.
[para268] The second type of tortious conspiracy involving employment of unlawful means would be applicable if the picketing and other protest activity was unlawful. This also turns on whether or not the conduct of all or some of the defendants constituted a nuisance and met the requirements of Canada Cement. This tort requires the defendants' unlawful conduct to be directed toward the plaintiff, and that the defendants know, in the circumstances, that injury to the plaintiff is likely to and does result. As paraphrased by Adams J., "[i]ntent to cause injury to the plaintiff must exist, although it may be derived constructively from the fact that the defendants should have known that injury to the plaintiff would ensue." In both cases, however, damages must ensue to the plaintiff.
[para269] Estey J., in Canada Cement, stated that the tort of conspiracy has been the target of much criticism throughout the common law world. He went on to state that the action may have lost much of its usefulness in our commercial world and survives in our law only as an anomaly.
[para270] Before applying the foregoing principles, it is important to be mindful of the identity of the plaintiff. Daishowa Inc. is a subsidiary of DFPL which in turn is a subsidiary of DCHL which is owned by DPMC. DCCL entered into the Forest Management Agreement in 1988/89. In 1992, its interest was transferred to DMI. The plaintiff has no direct involvement in the Forest Management Agreement or the pulp mill in Alberta. It has no logging operations. It manufactures, distributes and sells paper products.(ii) The Test for Injunctive Relief in this case: Serious Issue to be Tried or Prima Facie Case
[para271] It is DMI which is now involved in the Forest Management Agreement and its actions are alleged to threaten the Lubicon Cree.
[para272] The plaintiff takes issue with the complaints made about its activities on the basis that it has not and could not have any impact on the Lubicon Cree.
[para273] It is apparent, however, that Daishowa Inc. is not alone in this litigation. Affidavits were filed by Tom Cochran (Director, Corporate Development of DFPL) and Koichi Kitagawa (President and Chief Executive Officer of DFPL). Clearly the corporate entity takes great interest in the issues. Indeed, it was Kitagawa and Ominayak who met at Kitagawa's initiative in March 1988 when he was then Vice-President and General Manager of DCCL. Correspondence attached to the affidavits reflects ongoing involvement of corporate officers other than those of Daishowa Inc.
[para274] It is equally apparent that the Daishowa corporate entities constitute a group and are acknowledged as such by counsel for plaintiff. Materials produced by the plaintiff clearly indicate that, for purposes of corporate image, all of the subsidiaries and related companies are described as part of one entity. Indeed, the plaintiff agrees that primary picketing and other activities may be directed to the plaintiff and its related companies.
[para275] The understandable perception by the Friends of the Lubicon and the public is that all Daishowa companies are, in some respects, one.
[para276] In his affidavit, Thomas indicated that it was not until these proceedings were initiated that any issue was made that the action of targeting customers of Daishowa Inc. was inappropriate because of its corporate uninvolvement with the Forest Management Agreement.
[para277] Obviously, it was the plaintiff's choice as to which corporation would be named in these proceedings.
[para278] Under all of these circumstances, the defendants ought not to be subject to any suggestion that the wrong corporate target has been their objective.
[para279] It is equally important to note who are not plaintiffs. While affidavits are provided by representatives of independent distributors and by representatives of customers of Daishowa Inc., all of whom allege some concerns, none of them are plaintiffs. Consequently, when assessing the criteria for granting an injunction, their absence as plaintiff, becomes relevant in some respects.
[para280] As indicated above, the usual threshold which the plaintiff must cross is establishing that there is a serious issue to be tried. In Dieleman, Adams J. applied the higher prima facie test on the basis that the circumstances fell within one of the exceptions to the general rule, namely, picketing.(iii) Irreparable Harm
[para281] It is anomalous that a defendant could require the plaintiff to meet a higher threshold simply by asserting that the trial is a "fiction." Indeed, the defendants seemed to resile from that position by later instructing counsel that, even without counsel, they would participate in further proceedings. I therefore disregard that aspect in deciding which test to apply.
[para282] However, the result of this application will "in effect amount to a final determination of the action" for the following reasons:a) RJR-MacDonald and Dieleman both recognize that picketing may fall within the exception, namely, that the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial. In RJR-MacDonald, Sopinka J. and Cory J. adopted the following passage from NWL Ltd. v. Woods,  1 W.L.R. 1294 at pg 1307:[para283] For the foregoing reasons, I find that this case falls within the exception and that the plaintiff must establish a prima facie case. Further, it is because the prima facie test applies that I have reviewed the facts of this case so extensively.Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.b) The defendants' fundamental objective is to assist the Lubicon Cree in establishing a land claims agreement. This objective is pursued in a variety of educational and lobbying efforts - none of which the plaintiff opposes. While a modest part of their overall efforts, the boycott has obviously been the most successful - otherwise the plaintiff would not have taken these proceedings.
The consumer boycott began in 1991 and has developed considerable momentum. Indeed, the plaintiff excuses its delay in launching these proceedings earlier because the effect of the boycott was not immediate, but rather, cumulative.
If the boycott is prohibited as a result of this motion, a hiatus between February 6, 1995 (the date of the order of Wright J.) and early 1996 (the date when the plaintiff would be ready for trial) would occur. It is unlikely that the defendants could reinstitute the boycott should they be successful at trial. Consequently, the harm to the defendants will be complete: they will be deprived of the use of the single most important tool to accomplish their objective.
c) The rationale above for applying a more or less strict test is based on the potential harm suffered as between the parties. The public interest, including that of non-parties, can be considered under the criteria of balance of convenience. However, because of the relationship between the defendants and the Lubicon Cree, the interests of the Lubicon Cree merit modest consideration in this issue of the test to be applied.
Considerable efforts in the past have been made in late summer and early fall - just before the logging season. If the trial does take place in January 1996, that will be in the middle of the logging season. Without the boycott, on the evidence, there is greater likelihood that logging will take place. If the defendants are successful at trial, and if logging is undertaken in the interval, the Lubicon Cree may have been unnecessarily exposed to the dislocation and hardship anticipated by Ominayak and Ryan. Furthermore, at the rate of 11,000 trees per day, hundreds of thousands of trees will have been harvested - only to be regenerated in 60 years.
d) The plaintiff, on the other hand, will experience primarily financial harm. That hardship will not remove any potential benefit of proceeding to trial, rather, it will likely expedite and accelerate the trial.
[para284] The following is an analysis of the allegations made by the plaintiff that follows the order in which those allegations were pursued in the factum of the plaintiff. This analysis is predicated upon the facts and the law which precede this section.
(1) Interference with Economic and Contractual Relations[para285] This is the first ground on which the plaintiff relies, based upon the following:2) ConspiracyA) wrongful interference with economic interest;A) Wrongful Interference with Economic Interest
B) inducing breach of contract;
C) intimidation.[para286] The plaintiff must first establish that the defendant had an intention to injure the plaintiff. On the evidence, I find that the intention of the defendants at all times was to provide support to the Lubicon Cree in resolving their land claims and, toward that end, they have worked extensively to obtain the following from Daishowa:B) Inducing breach of contractA clear, unequivocal and public commitment not to log or buy wood from unceded Lubicon territory until a land rights settlement is reached and a timber harvesting agreement is negotiated.[para287] This objective is included almost universally in communications with Daishowa Inc., with its related companies, with customers of Daishowa Inc., and with the media.
[para288] While injury to the plaintiff is the result of the boycott, it is not the intention of the defendants to cause injury.
[para289] The second component of this tort is economic loss to the plaintiff. As indicated in the section on damages, the plaintiff has met that criterion.
[para290] The plaintiff asserts that the third criterion has also been fulfilled, namely, that the defendants have used unlawful means (misrepresentation, defamatory statements and injurious falsehoods). Each of these is also pleaded as a separate tort and will be dealt with below.
[para291] At this point, however, I find that, in the absence of the requisite intention to injure, the plaintiff has failed to establish a prima facie case and, accordingly, a claim for an injunction based on wrongful interference with economic interest fails. If I were applying the less onerous serious issue test, I would come to the same conclusion.[para292] The elements of this tort are described above. The threshold is that there must be a breach of contract.C) Intimidation
[para293] The evidence discloses that, at the outset, the defendants urged customers to breach their contracts with Daishowa Inc. Over time, the customers were admonished not to make any new orders.
[para294] When closely examining the commercial relationship, it is evident that there were agreements to supply material in quantities, at time periods, and at a cost specified in advance. While this took the form of a purchase order rather than a formal bilateral contract, it has sufficient indicia of a contract for purposes of this tort. Since the boycott began, the evidence is that customers invariably took delivery as had been agreed. When the customer signified that an alternate supplier would be found after the supplies reflected in the purchase order were exhausted, there is no evidence that the defendants reacted other than by acquiescence. The customers simply did not re-institute a purchase order. They did not create a new contractual arrangement when the old one expired.
[para295] Secondly, to establish this cause of action, the plaintiffs must also prove that the defendants' conduct directly persuaded or induced a third party to breach the contract. There is no question that the defendants used both persuasion and inducements to customers, however, in the end result, it was with the objective of inducing the customer to refrain from entering into a new contractual arrangement, rather than terminating an existing contract.
[para296] The third component of this tort is that the plaintiff suffered damages. As indicated above, the plaintiff has established a prima facie case on this component.
[para297] In addition to articulating the criteria which must be met to establish this tort, Adams J. in Dieleman identifies a "defence", namely, that the defendants can be found not liable if there is evidence that they felt that they had a moral duty to intervene or if they took action to protect against interference with the defendants' own rights. As indicated above, based on the evidence, I find the defendants' objective to support the Lubicon Cree. I find that the articulation and pursuit of that objective reflects a moral duty which, had I been satisfied that the elements of this tort had otherwise been proven, would constitute justification.
[para298] However, the plaintiff has failed to establish a fundamental component of this tort, namely, that any contracts were breached. Accordingly, I find that a prima facie case has not been established and that the claim for an injunction based on inducing breach of contract fails.
[para299] If I were applying the less onerous serious issue test, I would come to the same conclusion.[para300] Before addressing the elements of this tort, it is important to establish the identity of the plaintiff. Counsel for the defendants asserts that the plaintiff does not have standing to make this claim since its customers (non-parties), and not the plaintiff, were the subject of the defendants' conduct. Counsel relied on Patchett & Sons Ltd. V. Pacific Great Eastern Railway Co.,  S.C.R. 271. There is no doubt that the passage to which reference is made at page 277 appears to support that proposition. However, I decline to adopt it for the following reasons:a) the issue in Patchett was the extent of the statutory duty of a railway to service the siding; there is no statutory duty at issue in this case; and[para301] Accordingly, in attempting to establish the tort of intimidation, the plaintiff is able to rely on its need to protect its customers from the challenged activity.
b) there is no reference in any of the judgments in Patchett to Rookes v. Barnard, where long established principles of the tort of intimidation were described. Absent the Court clearly distinguishing Rookes v. Barnard, I am not prepared to depart from its principles.
[para302] There are four components to this tort. The first is that the defendants threatened an illegal act. The plaintiff asserts that the illegal conduct threatened was secondary picketing, secondary boycott activities and interference with their business, all of which I refer to as secondary picketing.
[para303] I address the issue of secondary picketing below and find that it is not illegal in the non-labour context. Accordingly, the first criterion has not been met.
[para304] The second component is that the defendants intended to injure either a person to whom the threat is directed or a third party. The component of intention has been referred to above. The fundamental intention of the defendants has consistently been to support the Lubicon Cree in its land claims. As referred to in the section on wrongful interference with economic interest, injury to the plaintiff may have resulted from the defendants' activities, however, such injury was not the intention.
[para305] To the extent that third parties are relevant, the issue of customers and distributors must be addressed.
[para306] With respect to customers:* there is no evidence that their packaging needs were not met at similar cost;[para307] With respect to distributors:
* there is some evidence in the case of Pizza Pizza and Woolworth's (where pickets occurred) that business was disrupted but to a modest degree;
* there is only inferential evidence of lost income.* there is evidence that some business was lost;[para308] However, even if some element of actual injury is established, there is no evidence that intention to injure customers and distributors of Daishowa was the motivation of the defendants. In order to accomplish their fundamental objective of supporting the Lubicon Cree, the defendants' intention was to communicate a message to consumers to enable those consumers to make informed choices at the point of purchase.
* there is evidence that some distributors and their customers were annoyed and irritated.
[para309] The third component that the plaintiff must establish is compliance with the threats of the illegal act. Leaving aside my finding that the act threatened was not illegal, there is no question that customers invariably complied. Of the 26 customers identified by the plaintiff, many willingly complied, some grudgingly, and only two resisted compliance until the boycott was initiated.
[para310] As in other torts, the plaintiff must establish resulting damage either to the person to whom the threat is directed or to a third party. The persons to whom the threat was directed were distributors and customers; the third party was the plaintiff. On the evidence referred to above the plaintiff has suffered damage. The evidence of third party damage is less clear.
[para311] Of the four components that comprise the tort of intimidation, I find that the plaintiff has failed to establish a prima facie case on two: the activity threatened, namely, secondary picketing, is not illegal; and the absence of the intention to harm. If I were applying the serious issue test, the result would be the same.[para312] With respect to this tort, there is no question that there was an agreement between two or more persons who shared a common interest. However, on the first branch of the Canada Cement test articulated by Estey J., the plaintiff must establish that, whether the means used in furtherance of the common interest was lawful or unlawful, the predominant purpose of the conduct of the defendants was to cause injury to the plaintiff. "Predominant purpose" is similar to the element of intention referred to in other torts. For reasons similar to those outlined above, I find that the predominant intention of the defendants was to support the Lubicon Cree in their struggle to obtain a land claims settlement and, specifically, to obtain the commitment from Daishowa not to log pending that settlement.3) Unlawful Means Used by the Defendant
[para313] The second branch of the Canada Cement test specifically applies in the context where the conduct of the defendant is unlawful. Further, and in that case, actual or constructive knowledge of an intent to injure the plaintiff must be established.
[para314] In addressing this tort, counsel for the plaintiff asserts that the unlawful conduct consists of interference with contractual relations, intimidation, inducing breach of contract, defamation, misrepresentation, injurious falsehood, and secondary picketing. As will be seen below, the only tort established on a prima facie basis is misrepresentation with respect to the March 7, 1988 agreement and genocide. The defendants will be enjoined from making statements as indicated below.
[para315] On both branches of the test as stated by Estey J., this tort also requires that injury to the plaintiff must flow from the illegal act. On the evidence, the damages experienced by the plaintiff are related to the secondary picketing (which I have not found to be unlawful) and are not related to the two misrepresentations above.
[para316] I find that the plaintiff has failed to establish the requirement of predominant purpose in the first branch, and has, insofar as I find only two misrepresentations unlawful, also failed to establish actual injury referrable to either branch. Accordingly, I find that the plaintiff has failed to advance a prima facie case as to the tort of conspiracy. If I were applying the serious issue test, the result would be the same.[para317] The third ground relied upon by the plaintiff is based on:(A) misrepresentation, defamation, injurious falsehoods(A) Misrepresentation/Defamation/Injurious Falsehoods
(C) secondary picketing.[para318] There is similarity and overlap in these torts and, consequently, they will be addressed collectively.(B) Nuisance
[para319] The conduct complained of is as follows:a) The defendants have published statements that Daishowa has breached an agreement reached March 7, 1988. (factum paragraph 46)[para320] I intend to address these complaints in the context of the three torts in the following categories:
b) The defendants have continued the boycott notwithstanding their knowledge:i) that Daishowa Inc. has not been involved in any logging operations in Western Canada;c) the defendants have regularly used misinformation about Daishowa Inc. or its products in communications with its customers, including:
ii) that Daishowa Canada has had a logging moratorium since 1991, and prior to the moratorium, had never logged within the Lubicon area of concern; (factum paragraph 26)
iii) that other resource-based and lumber companies had operated for many years within the Lubicon area of concern in northern Alberta and some continued to do so without any boycott by the Friends of the Lubicon or others; (factum paragraph 26)i) Daishowa Inc. was committing "genocide" against the Lubicon people;d) the defendants have made statements that Daishowa Inc. is involved in "genocide" against a native group with the implication that the customer will be associated with acts of genocide. (factum paragraph 40)
ii) Daishowa Inc. was carrying out "clear cutting operations" on Lubicon land, or that Daishowa Canada was utilizing subsidiaries to conduct logging operations within the area of concern, or was about to do so;
iii) Daishowa Inc.'s packaging products were manufactured using clear cut timber from unceded Lubicon or aboriginal land in northern Alberta; (factum paragraph 43)* status of logging operations[para321] Before embarking on this analysis one must be mindful of the defendants' submissions that, in their communications, they have exercised their constitutionally entrenched rights to freedom of expression and freedom of conscience. These rights were addressed by Adams J. in Dieleman and in Dolphin Delivery. In the latter case, McIntyre J. stated the following proposition:
* the March 7, 1988 agreement
* genocide.Where, however, private party "A" sues private party "B" relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply. I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be answered in the affirmative. In this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law.(a) Status of Logging Operations[para322] This first complaint is a grey area for the following reasons:(b) The March 7, 1988 Agreementa) Daishowa Inc. has never engaged in logging in the area of concern;[para323] The plaintiff must establish a prima facie case under the torts of misrepresentation, defamation or injurious falsehood. Balanced against that are the defendants' rights of freedom of expression and freedom of conscience.
b) Daishowa Inc. does not use wood harvested from the area of concern;
c) But DCCL, through its subsidiary, did engage in logging in 1990 and announced logging plans in 1991;
d) Thomas deposes that neither he nor Ominayak received the letter from Thorp dated October 31, 1991 which confirmed there would be no logging that winter. While Thomas received the letter dated November 8, 1991, the area in which logging would be suspended was not defined, leaving him with the justification that it would occur. For whatever reason, DCCL never responded to Thomas' November 10, 1991 letter;
e) Thomas deposes that neither he nor Ominayak received the press releases at the time the plaintiff asserted they were issued in the winters of 1991/1992, 1992/1993, 1993/1994. On the evidence, the only press release brought to their attention was by the Hudson's Bay Centre in January 1993. Without that information, and based on the 1990 Brewster experience, was it reasonable in the communications leading up to the logging season to indicate that DCCL was logging or about to log?
f) does the distinction between Daishowa Inc. and the rest of the corporate "group" matter in view of the reasonable public perception that all were one?
g) the package of materials submitted to customers contained the plaintiff's November 8, 1991 letter. Had the plaintiff responded to the November 10, 1991 letter, it is a reasonable inference that it too would have been included in the package.
[para324] Misrepresention is proven by misleading statements. Defamation is proven where statements (1) refer to an individual or there is a reasonable inference of reference; (2) are defamatory; and (3) are not justified as a true statement, fair comment or statement made on an occasion of privilege.
[para325] Injurious falsehood is proven where a false statement is made with malice and the plaintiff suffers damage as a result.
[para326] In view of my finding that the corporate entities are all a group, the statements that "Daishowa" has logged or is about to log" are not misleading. A subsidiary did log in 1990. Logging was announced in 1991. Logging is intended under the Forest Management Agreement. Likewise, the statements about logging status are not defamatory because they fall within the category of "fair comment".
[para327] Fair comment was referred to by Adams J. in Dieleman as follows:Fair comment on matters of public interest is protected speech. Where a person can demonstrate that words spoken are based on fact or expressions on a matter in which the public has an interest and a legitimate concern and spoken with an honest belief in the opinions expressed, then the statements constitute fair comment.[para328] In the context of the history of aboriginal peoples in Canada and, specifically, their attempts to secure control over unceded lands, I find that the statements contain political commentary and social expression. The statements regarding the status of logging operations amount to fair comment in that they are expressions on a matter in which the public has an interest. Based on the evidence, I find that these statements reflect the legitimate concerns and honest beliefs of the defendants.
[para329] Furthermore, with respect to injurious falsehood, the plaintiff must establish malice. Based on my findings above with respect to the intention, the objective and the predominant purpose of the defendants, I have no hesitation in finding an absence of malice.
[para330] Accordingly, I find that the plaintiff has failed to establish a prima facie case (with respect to the complaint about the status of logging) based on any of misrepresentation, defamation, or injurious falsehood.
[para331] With respect to this particular complaint, if I were to apply the "serious issue" test, the result with respect to misrepresentation may not have been the same.[para332] I have outlined above the evidence of Kitigawa and Ominayak. Both strongly believe their respective versions of that encounter. Without disregarding the evidence of Ominayak, based on the detailed analysis above, I find that the plaintiff has established a prima facie case that an agreement was not made on that occasion and that consequently, allegations by the defendants of such an agreement or a breach of such an agreement may constitute misrepresentation.(c) Genocide
[para333] I am mindful of the undertaking offered by counsel for the defendants to which reference is made above. I am not prepared to accept the undertaking given the lack of identification of all of the Friends of the Lubicon, the difficulty of imposing an undertaking on individuals not formally a part of it, and the enforcement issues arising from an undertaking as opposed to an injunction. Consequently, an order enjoining the defendants will be addressed below.
[para334] I find that the defendants' freedom of expression is not violated by an order prohibiting reference to the agreement or its breach. This will not result in a restraint on public discussion on matters of public interest. The defendants are still at liberty to pursue their fundamental belief that the Lubicon land rights should be resolved by the Lubicon Cree and government regardless of any agreement with the plaintiff and whether any such agreement has been breached.
[para335] I am unable to find that the statements with respect to the agreement or breach of it are defamatory or constitute injurious falsehood. I find that the statements constitute "fair comment" based on affidavits of Ominayak and Ryan. In the absence of malice, which, for the reasons indicated above I am not prepared to find, an important component of injurious falsehood is also missing.[para336] The plaintiff takes issue with the attribution of the word genocide. In his submissions, counsel for the defendants particularized the basis for the attribution as follows:a) clear cutting by Brewster in 1990;[para337] These particulars must be put in the context of Ominayak's affidavit (where he describes his own experience) and Ryan's affidavit (where she describes her observations and gives her opinions).
b) the act of signing the Forest Management Agreement which, by gaining cutting rights, interfered with the Lubicon Cree ownership rights;
c) refusal to give a clear, unequivocal and public commitment not to cut or harvest pending land claim and usage agreements.
[para338] To the extent that Brewster logged in 1990, and that logging was announced in 1991, I cannot find that that activity falls within the definition of genocide based upon the materials before me. I also cannot agree that the isolated act of signing the Forest Management Agreement is an act of genocide. Finally, I cannot agree that Daishowa's refusal to make the clear, unequivocal and public commitment is an act of genocide. I find that the plaintiff has established a prima facie case that attributions of genocide are misleading and constitute misrepresentation. I cannot find that a prima facie case of defamation has been proven. The statements made by Ominayak and by the defendants are most certainly within the category of "fair comment" as indicated above. Likewise, in the absence of an element of malice, I am not prepared to find that the tort of injurious falsehood has been established.[para339] To establish nuisance, the plaintiff must be the owner or occupier of land. The status of the plaintiff is relevant with respect to this tort.(C) Secondary Picketing
[para340] The plaintiff does not object to activities at its offices or those of its related companies. The objection is to prevent picketing at premises of its customers. The plaintiff is neither an owner nor an occupier of the premises where the secondary picketing is located or threatened.
[para341] In addition to ownership or occupation, the plaintiff must establish that the interference is substantial and unreasonable. The evidence available in this regard is hearsay. There is a suggestion that a Pizza Pizza outlet entrance was blocked. There is no evidence of violence or threats of violence. There was an announcement that the central Pizza Pizza phone line would be barraged with calls and that there would be fax attacks. The evidence does not disclose, however, the extent to which either occurred or the extent to which an interference in business was caused. The evidence falls short of the requirement of "substantial and unreasonable." There is no comparison with the conduct in Dieleman or in Morgentaler v. Wiche.
[para342] I find that the plaintiff has failed to establish either a prima facie case or the serious issue threshold test with respect to the tort of nuisance.[para343] Counsel for the plaintiff described this issue as the "gravamen" of his case.
[para344] Hersees has long been the leading case on secondary picketing in the labour context. However, it is apparent that the law has evolved to the extent that secondary picketing in a non-labour environment is not unlawful. To adapt language from Bering v. Salem (adopted by Adams J., in Dieleman):If the court were to deprive picketers of the words which most clearly embody the moral position of those picketers, it would eviscerate completely the debate concerning the rights of aboriginal people to assert claims to unceded lands.[para345] Peaceful picketing is lawful when it is designed to:a) communicate the plight of the Lubicon Cree;[para346] An injunction should not issue that would restrain public discussion on matters of public interest such as aboriginal land claims. On the evidence, the picketing in this case is of that nature.
b) inform the consumer of the actual or potential role which the retailer in question plays in the debate; and
c) enable the consumer to make an informed decision at the point of purchase, in other words, enable the purchaser to use the power of money to communicate a reaction.
[para347] If secondary picketing in a non-union context is not unlawful, then threats to evoke secondary picketing are likewise not unlawful. The threat itself is a useful tool to effect public discussion on matters of public interest as is evident here where only two of the many customers resisted the boycott until the picket actually occurred.
[para348] Secondary picketing and threats to that end are a form of freedom of expression protected by the Charter.
[para349] Accordingly, I find that the plaintiff has failed to establish either a prima facie case or the serious issue test that the conduct of the defendants in this regard is tortious.
[para350] The evidence by the plaintiff on this issue relates to:(iv) Balance of Inconveniencea) loss of revenue quantified and unquantified, present and future;[para351] With respect to the former, the evidence is summarized in the section on Damages above. The plaintiff has established actual and potential harm.
b) damage to corporate reputation including damage to its products.
[para352] With respect to the latter, the evidence is less convincing. Only one customer, NOW Magazine, referred to such corporate damage. Many others indicate, implicitly or explicitly, that they will resume relations with Daishowa when the Lubicon Cree issues are resolved. (One must of course be mindful that, by that point, the customer may be sufficiently wedded to the alternate supplier as to have hesitation about a divorce.)
[para353] Is the harm irreparable? To answer that question, one must consider the ability of the defendants to compensate the plaintiff should the defendants ultimately be found liable. As Thomas said in his cross-examination at Q. 661:Q Put it this way; if Daishowa got an award of damages and whether it was $50,000, $500,000 or $5 million your group wouldn't have the ability to pay the award of damages?[para354] The short answer to the question is: Yes. The plaintiff would never recover damages from the defendants to any significant degree.
A I am not totally sure about the $50,000, but anything above that for sure. I don't know about that but it seems like a lot of money, let's put it that way.
[para355] Application of the prima facie test leads to the conclusion that the plaintiff has established a case only with respect to misrepresentations regarding the March 7, 1988 meeting and genocide. Consequently, this third component of the interlocutory injunction test need only address that tort.
However, if the serious issue test were applied in the tort related to the logging status (see above), or if my application of either test is subsequently found to be in error, I would find that, with the exception of the misrepresentations of the March 7, 1988 meeting and genocide, the conduct of the defendants should be protected under this component for the reasons cited above in applying the prima facie case test and the following additional reasons:1) the Charter rights of freedom of expression, of conscience and of association, all manifested in the actions of the defendants, must be given consideration along with the competing interest of the plaintiff to profit;
2) the public interest in protecting the claims of aboriginal peoples, albeit not parties to these proceedings, is important;
3) the use of consumers through a boycott to communicate a public message has long been and will continue to be an effective tool in accomplishing political and social objectives, for example, national boycotts of South Africa and Cuba, and more latterly abortion protestors;
4) while inconvenienced, in some cases irritated, and subjectively "intimidated," none of the customers were unable to meet their packaging needs at similar cost;
5) it is important to remember that this application is to restrain the conduct of the defendants.
There is no cross-motion to restrain the plaintiff from logging. If the plaintiff wishes to undertake logging in the winter of 1995/96, it is of course free to do so; and
6) the plaintiff has complied with its own self-imposed moratorium for four winters. With the trial as early as January 1996, the delay in logging for one more winter (should the plaintiff continue its moratorium) is inconvenient to the plaintiff but far less inconvenient than the harvesting of thousands of trees which may ultimately be found to be the property of the Lubicon Cree.
[para357] Pending trial, the following order will issue:
1. the activity to which the plaintiff does not object (see page 2 above) may continue.
2. communicating with customers of the plaintiff and secondary picketing or the threat of secondary picketing is not enjoined on the following conditions:(a) the defendants are prohibited from indicating in any written or oral communication that an agreement was made in March, 1988; or that any agreement was breached or varied by the plaintiff;
(b) the defendants are prohibited from using "genocide" or "genocidal" or other terms connoting genocide in written or oral communications;
(c) immediately on conclusion of a land settlement agreement and a harvesting agreement, the defendants must notify in writing all customers of Daishowa Inc. with whom they have ever made contact indicating that an agreement has been reached and that no further boycott activity will be carried on;
(d) within 30 days of this order, the defendants will provide to the plaintiff a list of all customers of the plaintiff (including names and addresses) with whom they have ever made contact;
(e) in future, copies of all correspondence directed to customers of Daishowa Inc. by the defendants shall be simultaneously copied to Daishowa Inc. with the expectation that Daishowa will be in a position to take initiative with the customer if it wishes;
(f) to ensure compliance with paragraph (c), if so requested by the plaintiff, the defendants shall post security in the amount of $500 intended to cover mailing and secretarial costs. Counsel for the defendants will hold the security.