Environmental Defence Canada Inc. et al v Kenney et al, 2023 ABKB 304

Court of King’s Bench of Alberta Citation: Environmental Defence Canada Inc. et al v Kenney et al, 2023 ABKB 304 Date: 20230524 Docket: 2203 01459 Registry: Edmonton Between: Environmental Defence Canada Inc., Dogwood, Stand Environmental Society (C.O.B. Stand.Earth), West Coast Environmental Law Research Foundation and Western Canada Wilderness Committee Plaintiffs/Respondents - and - Jason Kenney and Her Majesty the Queen In Right of Alberta Defendants/Applicants _______________________________________________________ Memorandum of Decision of the Honourable Justice Avril B. Inglis _______________________________________________________ I. Introduction and

Summary [ 1 ] The Defendants file for

summary dismissal of the Defamation Claim against them on the grounds that the alleged defamatory statements are not “of and concerning” the Plaintiffs at law.

[ 2 ] The Claim arises from statements made by former Premier Jason Kenney and statements published on Government of Alberta websites regarding the findings of the public inquiry into “anti-Alberta energy campaigns” conducted by Commissioner Steve Allan (the Allan Inquiry).

The Allan Inquiry culminated in the release of the Report of the Public Inquiry into Anti-Alberta Energy Campaigns (the Allan Report). [ 3 ] Four statements (and their combined effect) are complained of by the Plaintiffs: a Facebook post and an identical tweet posted to Jason Kenney’s respective accounts on October 21, 2021 (the “social media posts”); statements on the “Inquiry Webpage” and statements in the “Key Findings Document.” Social media posts: Foreign-funded misinformation campaigns to landlock Alberta’s resources caused untold hardship for thousands of energy workers and their families.

Today, we released a report that shines a light on these coordinated efforts to harm our province. Read more: [link to October 21, 2021 news release “Foreign funding hurt Alberta’s energy development”] [ 4 ] The links on these social media posts take the viewer to an Alberta Government web page titled “Foreign funding hurt Alberta’s energy development.” The page included the following: Inquiry Webpage: For over a decade, an alleged, well-funded foreign campaign has defamed Alberta’s energy industry and sought to landlock our natural resources.

The reputational harm to the province’s energy sector has limited government and industry revenue, and cost Albertans and Canadians thousands of jobs . The report confirms the existence of well-funded, decade-long campaigns based on misinformation that have impacted the lives and livelihoods of Albertans. [ 5 ] This inquiry webpage linked directly to a “Key findings” document which included the names of the Plaintiffs. This list was taken directly from the Allan report (also accessible from the webpage).

Key Findings Document: The report confirms the existence of well-funded foreign interests that have been waging a decade-long campaign of misinformation with the goal of landlocking Alberta’s oil and gas. Participants are defined as being determined to have participated in anti-Alberta energy campaign, a campaign designed to delay or frustrate Alberta’s oil and gas industry .

The Commissioner identified 21 participants, 13 funders and two re-granters. [followed by a list of those 36 names]. [ 6 ] As set out in Grant v Torstar , 2009 SCC 61 at para 28 , and recently reaffirmed in Bent v Platnick , 2020 SCC 23 , for a statement to be defamatory it must: 1. Be published, meaning that they were communicated to at least one person other than the plaintiff; 2. Refer to the plaintiff; and, 3.

Tend to lower the plaintiff’s reputation in the eyes of a reasonable person. [ 7 ] Once a plaintiff establishes that the impugned statement is defamatory, the defendant must then put forward one or more of the recognized defences. The only issue before the Court currently is whether the alleged defamatory statements refer to the Plaintiffs. The Defendants correctly argue that if the statements do not refer to the Plaintiffs, then there is no cause of action, and the matter must be dismissed. [ 8 ] For the reasons that follow, the Application by the Defendants is dismissed.

The Plaintiffs are specifically named in a list that identifies them as “participants in anti-Alberta energy campaigns” in the Key Findings document posted publicly to the internet by the Defendants. This document is connected by one or two direct links from the statements that include the alleged defamatory comments, and no other list of organizations appears.

Nothing in the documents posted by the Defendants distinguishes the Plaintiffs from the listed participants, which might separate them from those that are “spreading misinformation.” In short, in this era of various forms of electronic information, where one post or tweet contains a link to another document and so on, it would defeat defamation law if a party were simply allowed to break their defamatory statement and the identity of the defamed into separate but closely linked statement and offer the defence the Defendants have here. II. Test on

Summary Dismissal [ 9 ] In Alberta, applications for

summary judgment under Rule 7.3 of the Alberta Rules of Court , Alta Reg 124/2010 , are governed by Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 ( Weir-Jones ), as clarified by Hannam v Medicine Hat School District No 76 , 2020 ABCA 343 . The key considerations when deciding an application for

summary dismissal were set out by Slatter JA at para 47 of Weir-Jones :

(

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or douncertainties in the facts, the record or the law reveal a genuine issue requiring a trial? (

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is nogenuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities, or the applicationwill fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication. (

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record thatthere is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, byshowing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring atrial. If there is a genuine issue requiring a trial,

summary disposition is not available. (

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she isprepared to exercise the judicial discretion to summarily resolve the dispute. [10] To succeed in their Application, the Defendants must show that there are no uncertainties in the facts, the record, or the law.Summary dismissal will be appropriate if, based on the facts proven on a balance of probabilities, the Plaintiffs’ claim has no merit. [11] While the Defendants submit that once applied to the facts in evidence, the law of defamation is clear that the impugnedstatements do not refer to the Plaintiffs and thus, they have no cause of action, ultimately this matter is not appropriate for

summarydismissal; there is a genuine claim in defamation to be defended against at a trial. III. Law on ‘of and concerning’ the Plaintiffs [12] Defamatory statements do not need to refer to a plaintiff explicitly or directly.

The Supreme Court has adopted the followingtest for identifying the subject of an allegedly defamatory statement: “do the words used or the circumstances attending the publicationlead reasonable persons to understand that it was the plaintiff to whom the defendant referred?”: Fraser v Sykes, .Extrinsic evidence may be relied upon to identify the person allegedly defamed. [13] In Grant v Cormier-Grant et al, , the Ontario Court of Appeal held that the statements complained of “hadto contain something which, to the mind of a reader with knowledge of the relevant circumstances, contained defamatory imputationsand pointed to the plaintiff as the person defamed”: para 24. [14] Surrounding and extrinsic circumstances are relevant in most parts of the defamation analysis.

The meaning of the impugnedstatements “may be discerned from all the circumstances of the case, including any reasonable implications the words may bear, thecontext in which the words are used, the audience to whom they were published and the manner in which they were presented”: Crookesv Newton, 2011 SCC 47 at para 39.

In Bou Malhab v Diffusion Métromédia CMR Inc, 2011 SCC 9, the Court held that “other factors,related to the maker or the target of the comments, the medium used and the general context, can cause comments that appear to begeneral to be attached to certain persons in particular”: para 78. [15] The general context of the statements and the surrounding circumstances of the plaintiff and defendants are relevant indetermining if the statements are ‘of and concerning’ the plaintiff. IV. Submissions of the Parties [16] According to the Weir-Jones test, the Defendants bear the onus of establishing that

summary judgment is appropriate. [17] The Defendants submit that the statements do not refer to the Plaintiffs because: • The footnote in the impugned sentence of the Key Findings Document refers to the Tar Sands Campaign, not the Plaintiffs. • The Plaintiffs are not singled out from the larger group of 36 organizations named in the Key Findings Document. • The social media posts and inquiry website do not identify the Plaintiffs explicitly. • Because reaching the Key Findings Document from the Social Media posts requires following two links, the posts are notsufficiently connected to the list of participants in the Key Findings Document. • A reasonable person aware of the surrounding circumstances would not know the statements referred to the Plaintiffs. [18] The Plaintiffs submit that the statements are of and concerning them because: • The Key Findings Document names each of the Plaintiffs individually. • The statements that do not name the Plaintiffs include links to the Key Findings.

Document and the Allan Report wherethe names of the Plaintiffs are easily found. • A reasonable person aware of the surrounding circumstances would know that, at least some of, the Plaintiffs were thetargets of the Allan Inquiry.

V. Analysis a. The Key Findings Document statements refer to the Plaintiffs [ 19 ] The Defendants are not persuasive when they argue that the defamatory statement in the Key Findings Document does not refer to the Plaintiffs but rather to the Tar Sands Campaign by virtue of the footnote at the end of the sentence and the use of the singular “campaign” in the statement: The report confirms the existence of well-funded foreign interests that have been waging a decade-long campaign of misinformation with the goal of landlocking Alberta’s oil and gas. The footnote directs the reader to page 3 of the Executive

Summary of the Allan Report. In the middle of that page is a heading, “The Tar Sands Campaign.” The page also cites a National Post

article entitled, “How an Alberta PR stunt backfired in the U.S., sparking a decade of oilsands opposition,” and it also refers to the Inquiry’s mandate to “make Albertans aware of these campaigns.” [ 20 ] Further, the heading, “The Tar Sands Campaign” is subheading (

b) in a

section entitled “Anti-Alberta Energy Campaigns” and the

section goes on to enumerate a long list of tactics that could be used to directly or indirectly delay or frustrate the development of Alberta’s oil and gas resources. It is clear to the reader that the Tar Sands Campaign involved many campaigns. In fact, the Key Findings Document later refers to “seven campaigns specifically targeting divestment in the Alberta oil sands.” It is also clear to the reader that the purpose of the Allan Inquiry was to determine which organizations were involved in these campaigns and where their funding was coming from.

The Key Findings Document ends with a list of Participants in the “anti-Alberta energy campaigns” and their funders. This list includes these Plaintiffs. There is nothing in the list that distinguishes any of the plaintiffs from those that are listed. [ 21 ] The Defendants go on to suggest that a close reading of the Key Findings Document does not allow the reader to connect the Plaintiffs to the statement because the statement refers to “foreign interests” and all but one of the Plaintiffs are Canadian organizations.

Again, this is not persuasive given that the statement refers to interests not organizations, and that one of the goals of the Inquiry was to identify the foreign sources of funding for organizations. [ 22 ] Considering the Key Findings Document as a whole, the publication leads any reasonable person to understand that the alleged defamatory statements refer to campaigns of which the Plaintiffs who appear on the list of participants were part. The impugned statements refer to all the organizations listed as “Participants” in the Key Findings Document.

The fact that only six of those organizations are Plaintiffs in this matter is irrelevant. Each organization is apparently the subject of the alleged defamatory statements; only six have exercised their option to sue. b.

The links in the social media posts and on the Inquiry Webpage allowed a reasonable person to understand to whom the impugned statements referred. [ 23 ] The social media posts and the Inquiry Webpage are sufficiently connected to the Key Findings Document to ensure that a reasonable person would know the impugned statements refer to the “Participants” list which includes all the Plaintiffs’ organizations. [ 24 ] The test for determining if a statement that does not mention a party is nonetheless “of and concerning” that party is an objective reasonable person test.

That is, would a reasonable person, informed of the circumstances, a member of the reading public, know to whom the statement refers. [ 25 ] Here too, a reasonable person who saw the social media posts would follow the link to read further about the results of the Inquiry. That link leads to the News Release which refers to “Canadian-based environmental initiatives,” “proponents of these campaigns” and “environmental groups.” The News Release link then would lead that reasonable person to the Key Findings Document and its list of Participants.

That is, the actual names of the Plaintiffs are two direct “clicks” away from the original statements of Mr. Kenney. [ 26 ] The links in the social media posts, the News Release and on the Inquiry Webpage are breadcrumbs leading to the actual subjects: “the Participants.” It is not by happenstance that the reader would select the correct series of links to arrive at the Key Findings Document. The path is straightforward. The social media post links directly to the News Release.

There are only four links in the News Release – to the Inquiry Webpage, the Key Findings Document and to the video and audio recordings of the news conference where the Allan Report was released. However, a reader does not need to follow this precise sequence of links to find the list of participants. If, for example, instead of going to the Key Findings Document, a reader chose to go to the Inquiry Webpage, the first two links are “Read the report” and “See full overview of key findings.” [ 27 ] The Defendants challenge the link between the social media posts and the Key Findings Document.

They rely on Crookes v Newton , 2011 SCC 47 ( Crookes ), where the Court held that “only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker”: para 42. The links in the social media posts and News Release are distinguishable from the links at issue in Crookes and they fall into the exception identified by the Court in that case.

In Crookes , at issue was a website post that hyperlinked a name and a website address, which, if followed, would lead readers to allegedly defamatory articles written by others. The Court held that that hyperlinking to those articles did not amount to publishing the allegedly defamatory statements. The links merely “communicate that something exists, but do not, by themselves communicate its content”: para 30. The Defendant Kenney’s social media posts do communicate the content of linked information by directing readers to “read more” about misinformation campaigns designed to harm the province of Alberta.

Similarly, the News Release summarizes the findings of the Allan Inquiry and directs readers to the Key Findings Document for more detail. [ 28 ] Suggesting that an inflammatory social media post, phrased in a way to grab the reader’s attention such that they are more

likely to follow the embedded links, cannot be defamatory because the subject of the post is not named until the second direct link is clicked is unrealistic. The argument urges wilful blindness to the reality of the current forms of communication. The protections of defamation law cannot be avoided simply by using embedded links instead of paragraph returns. This is particularly true for social media venues like Twitter which have a strict word limit for the user: links are virtually necessary for any Tweet more substantial than a comment on the weather. c.

Extrinsic Factors and Group Defamation [ 29 ] In their submissions, both parties encouraged me to consider the law on defamatory statements that reference a group and the circumstances under which a statement about a group may defame individual members of the group. That analysis is unnecessary because the impugned comments must be considered within the context of the whole document and all the circumstances, which necessarily leads to the Key Findings Document which names the organizations individually.

As well, the inquiry Webpage and Social Media posts are referring to “the Participants” and are so closely connected to the Key Findings Document that they effectively refer to the Plaintiffs directly. The Plaintiffs are explicitly named in one of the impugned documents and all the impugned statements are directly connected to that document. [ 30 ] Given their arguments on group defamation, the parties also presented the extrinsic factors that inform how a reasonable person would understand the impugned statements.

The Plaintiffs point to two comments made by Jason Kenney in 2018 that identified two of the Plaintiffs – Environmental Defence Canada and West Coast Environmental Law – as establishing that a reasonable person hearing the statements on October 21, 2022 would identify them as pertaining to those organizations.

In this, the Defendants are correct: given the passage of time and the differing circumstances, it is unlikely that a reader would connect the 2018 statement to the 2022 statements. [ 31 ] However, it is noteworthy that those 2018 statements are inline with a broader message that the Defendant Kenney had disseminated during his 2018 and 2019 campaigns to become leader of the United Conservative Party and the Premier of Alberta.

A reasonable person, informed of those circumstances and hearing the impugned statements would know that organizations were the target of the Inquiry, and upon hearing that the Inquiry’s findings had been made public, would seek out the names of the organizations that the Inquiry identified as having participated in “anti-Alberta energy campaigns.” The full history of the campaign was not included fully in the evidence provided by the Plaintiffs, as such it does not affect this decision. VI. Conclusion [ 32 ] As required by the Weir-Jones test, there are no uncertainties in the facts or the law in this matter.

Having accepted the facts as presented and having applied the settled law of defamation, the Defendants have not established that the impugned statements do not refer to the Plaintiffs. As such, this Application for

summary dismissal is denied. Heard on the 17 th day of February, 2023. Dated at the City of Edmonton, Alberta this 24 th day of May, 2023. Avril B. Inglis J.C.K.B.A. Appearances: Paul Champ & Bijon Roy for the Plaintiffs/Respondents Matthew A. Woodley & Taylor M. Thiesen for the Defendants/Applicants