It’s been close to a year since the captive animal facility Marineland Canada began a process that would see 5 people and one media outlet sued for damages totalling $14.25 Million dollars. 3 ex trainers and 2 advocates – every individual sued an average working class person with no possible way to cover the damages claimed against them, and no chance of defending themselves without significant support.
Explaining the legal process back to supporters, allies and detractors over the last year has been rough. SLAPP (Strategic Lawsuits Against Public Participation) suits have been used by Marineland before – against Catharine Ens and Daniel Wilson of Niagara Action for Animals 2004-2006 – however, the turn over rate in animal advocacy is high and memories are sometimes short. Outside of this park, SLAPP suits have been used in the Province for a long time but spread out around issues over development, resource extraction and not typically against animal advocates.
The difference between a regular damages/defamation suit and a SLAPP suit is that the plaintiff wants to leverage the cost and fear of the legal system to threaten critics and opposition into silence. Civil litigation and case law in Ontario makes no distinction between an opposition to a business practice on ethical/moral grounds and that of a consumer attacking a business, or a business attacking another business. Also, there is no mechanism to weigh the massive difference in resources between a plaintiff that has the power to endlessly use any facet of the legal system while the defendant struggles to present even the most basic defence. A starting costs point for fighting against a SLAPP suit – $20,000. It only goes up from there. Very few advocates I know have $20,000 sitting around to defend themselves.
Because defendants do not have the ability to level this playing field, the plaintiff will begin to extract concessions by the sheer amount of threats being made. In the case of Marineland, threats of escalation have been the norm over the last year (and even prior) – with each legal threat having to be weighed with not is this legal or right, but,”do we have the resources to defend against this?”
For the plaintiff, whatever they do act on will get to be seen in isolation. Another point where the legal system favours them. Marineland Canada for example, or any entity engaging in this behaviour, can make endless threats, many or all of them known by themselves to be frivolous, and hope for capitulation just on the basis of the resources/capacity of a defendant. If and when they do act on something, there is no mechanism currently, without anti-SLAPP legislation, to show the full picture of the intent and motivations of the plaintiffs. This adds on to the already massive resource deficit created by SLAPP suits in that one side has all of the resources and legal leverage and gets to control the threats being made, while also getting to control what is or is not seen by a Judge. This means they can make 100 threats, act on two of them, and present themselves before a Judge as the victim in a legal case instead of as the aggressor.
Below are 9 bullet point examples of how ridiculous a Marineland SLAPP suit is.
– The very first cease and desist ever received by Marineland Animal Defense from Marineland Canada came on August 8, 2011. That threat claimed that Marineland Animal Defense was infringing on the copyright of Marineland Canada and threatened to sue for damages if we did not change our name and destroy any signs, leaflets or record of our existence. Sent from then representation, Sim, Lowman, Ashton and Mackay, we responded with relevant case law protecting the right to criticize/oppose a business on the grounds of our name. There could be no confusion that our organization was explicitly AGAINST the business practices of Marineland Canada – thereby, we were in no way infringing on their rights. Over two years later, Marineland Canada never acted on this complaint and never included it in any of their later legal claims. You can read their letter and our response from back then here.
– Following the October 7th 2012 Closing Day demonstration there was a flood of cease and desist orders that predated the December 21, 2012 filling of the $1.5 Million damages suit against me. November 7, 14 and 21st all saw communication from Marineland Canada’s new representation Andrew Burns of Hunt Partners. Those cease and desists build to a demand to agree to a court order to refrain from 8 points of activity – which vary from agreeing to not use publicly posted photos in our campaign materials to non contact with any employee/ex-employee.
– After a refusal to the terms demanded by Marineland Canada – and following the announcement that Marineland Canada had been burying deceased animals without permit for decades – Marineland Canada filed a $1.5 Million Damages suit against me. The statement of claim comes in at 18 pages and carries various absurd claims – such that I have engaged in a “conspiracy” to remove animals from the site, that I have engaged in, encouraged or was somehow connected to arson on Marineland Canada properties (an abandoned trailer park that the Fire Dept. claimed local youth partied in), and that I promote “violence.” Although I was not served with these documents until January 4, 2013 – a copy was available to the local Sun Media outlet on December 21, 2013 who ran an article on the filed suit a full two weeks before I could even read what it is was being claimed.
– Near the end of January we placed a call to McCoy Bus in Kingston, On. We asked to speak to a manager so that we could send over information to make sure they were aware of the investigation at Marineland Canada and all relevant issues so that they could make up their own conscious decision about running tours to the park. We were told to call back and on February 1st we did. On our call back the receptionist gave us the email to the manager and instructed us to send an email. Within an hour of sending that email – which was solicited – Marineland Canada lawyer Andrew Burns reached out threatening legal action. McCoy still runs bus tours to Marineland and our letter clearly had no disruptive power over their service or contract with Marineland.
– In late February we sent an undertaking to Marineland Canada agreeing to no longer demonstrate at park owner John Holer’s residence (they claimed his health was failing), as well as not to demonstrate at the Niagara Animal Medical Clinic (where we once held a silent candle lit vigil). If they would agree, they would pull back their claim. In mid April Marineland Canada signed on to this undertaking. However, by May 8th the threats had already begun again – this time threatening to bring legal action if we did not remove this May 2013 post about Marineland Canada’s newly hired public relations consultant John Beattie. The post contains public information about a person speaking publicly in defence of animal captivity. We refused to pull it down. More threats followed on May 8th in regards to a promo video we had made for the upcoming Opening Day demonstration on May on 18th and Marineland Canada’s supposed concern for the “public health and safety of demonstrators.” The promotional video was pulled down, however, the demonstration carried on as normal with close to 1,000 advocates demonstrating against the park.
– The threats continued to escalate prior to the May 18th Opening Day demonstration with Marineland Canada’s lawyers threatening legal action if we did not remove a post calling for the College of Veterinarians of Ontario to investigate ex-employee allegations that Marineland Vets had supplied staff with drugs for personal use, with their lawyer saying – “Either they remove it or a court will finally determine the issue. If it is not down with the hour I will take instruction to proceed against Mr. Powell and each member of MAD.” We have never made any factual claims to this allegation, and have only posted public information (given via a public talk and through court documents) to call on the CVO to get to the bottom of these claims. Marineland Canada has made threats on this point numerous times, especially as the Toronto Star later reported on it in September, however, we have continued to host this call to the CVO on our site as we believe this allegation needs to be investigated. No action was taken by Marineland in relation to their timeline/threat.
– On June 8th, well past the 1 hour deadline on May 17th, lawyers for Marineland escalated their claims to say that the undertaking had been breached. To back up this claim they referenced a post made to our public facebook group by a member of the public who had burned some Marineland brochures – Marineland’s lawyers called this, “theft and destruction of Marineland brochures.” This post was not made by MAD, any organizers of MAD and the action was never encouraged by MAD (we actually have a legal disclaimer static to the top of the group). The post was removed, however, this would signal the beginning of Marineland Canada knowingly using the actions of other individuals against us. They continued this threat with allegations that, “MAD has targeted young children entering and leaving Marineland by yelling abusive remarks through bullhorns at them. They have blocked families leaving and used foul language directed towards guests. They have filmed guests leaving who have specifically requested they not do so.” These claims would be repeated by Marineland spokesperson John Beattie and other local legal counsel for Marineland Tom Richardson – however, absolutely no evidence of this has ever been presented publicly or in court. As Marineland Canada had hit a legal roadblock and demonstrations were still growing in number – this marked a shift in strategy as the focus became to use individual actions against MAD as a group and fabricate claims against the undertaking. This latest round of threats also followed closely after park owner John Holer was filmed uttering threats – the second time in three years he has done so. A claim which has actual evidence to support it.
– Intensifying threats of an injunction, after securing an ex parte injunction two days earlier against individual advocate Mike Garrett, Marineland’s lawyers begin on July 17th to demand the names of MAD members – “Please identify each of the members of MAD so that we are aware who is bound to the terms of the undertaking and who, it is alleged, is not. Please provide the membership names … by no later than tomorrow at noon.” The Undertaking – which Marineland Canada had long since claimed we breached – was signed with the language “I Dylan Powell will not and will not encourage anyone in MAD to…” I was the only one bound to it and this begins an attempt by Marineland to make myself, Dylan Powell, personally liable for any and all action taken up by anyone who opposes the park. This escalates during the injunction process as Marineland demands at a cross examination on August 1st, “all information, identities, contact information, email addresses, addresses, of all MAD and Niagara Animal Defense members, past members, supporters, affiliates, city captains, organizers, black arm band wearers, and all information of those attending the Oct 7 and May 18 demonstrations and the Nov 8 demonstration.” I refuse to provide any information. Lawyers for Marineland Canada would then bring a contempt motion during that injunction hearing attempt to convince the Judge to compel me to give this information. He refused to grant their motion.
– Although Marineland Canada failed on 10 of the 14 points of relief brought forward and had both contempt motions rejected – they were emboldened by the relief Judge Lococo did grant them in the injunction hearing. Although the Judge refused to grant them a buffer to remove demonstrators claiming this would infringe on demonstrators rights, Marineland simply got the City of Niagara Falls to lease them more public property. In September, they flooded retroactive requests calling for information to be pulled down from my own personal website (a first), which I responded with just deleting entire in order to save the hassle of skimming through four years of information for whatever they would take offence to. They followed this up with a threat against my legal representation, Jan Weir, as he was to speak at the closing day Demonstration on Oct 11th. Alleging that “illegal activity occurs at every demonstration” they warned that he would be called as a witness and no longer be able to represent me. (To date only one trespass ticket has ever been handed out over now three full summers of 40+ events/demonstrations). Jan would go on to speak at the demonstration – again, without issue. Marineland would also follow this with threats that they are still going ahead with their $1.5 Million Damages claim and we are to prepare our defence.
Aside from all of this we’ve had to remove dozens of posts/photos/signs not because we felt their violated any agreement, order or law but because we simply do not have the capacity to defend against every single threat. Also, our organizing capacity has dwindled as we have less time to deal with advocacy and less (to no) resources to now direct to campaigning (we just lost our office space). Organizers have been chilled and many are afraid of the legal implications of publicly or visibly opposing this park and the practice of animal captivity. The only thing stopping Marineland from repeating this process with another advocate is their own resources. Without anti-SLAPP legislation the courts simply have no way to deal with the way corporations and powerful individuals can flex their muscle and use the system as a weapon.
As a whole, there can be no confusion over what the true aims of Marineland Canada are. They’ve been the same since the mid 2000’s and they’ve been the same across various different legal representation – they want to crush all vocal and visible opposition and strike fear into anyone who might fill those positions.
In total they have filed suits against ex-employees who have detailed the inner workings of the park, the paper who printed that information and the activists who have helped get that information out to the public and organize it into an opposition. They’ve covered their bases. (*This also does not include the people/organizations that they have threatened to sue but never followed through on – a group which would include the Ontario Society for the Prevention of Cruelty to Animals).
For anyone with a moral or ethical distaste for any corporate business practice – this case is important and sets a precedent. Although this exercise is costly for Marineland Canada, it also has severely impeded the flow of information and come close to crushing any organized opposition to the park. Many companies won’t go to this length because of the bad press – but what if the press you get is going to be bad anyways? This same process could easily be repeated by Enbridge in their attempts to push through the reversal of Line 9, against those critical of Canadian owned Mining companies, and has been repeated by large corporations like Resolute Forest Products who is currently SLAPP’ing Greenpeace activists Shane Moffatt to the tune of $7 Million. This has to stop.
The legal community and all political parties in Ontario reached consensus years ago that this issue needs to be corrected. Fortunately for the corporations who use this strategy – successive minority Governments have hampered the ability of anti-SLAPP legislation to pass (Bill 83). The House is currently sitting, but will be breaking soon of the holiday. The longer it takes, the more damage that these corporations can inflict. Please, if you are outraged by this, contact the Justice Ministers, as well as your MPP, today and ask them to prioritize the passing of this bill.
Jagmeet Singh (NDP Justice Critic) – 905-799-3939 / email@example.com / @jagmeetNDP
Julia Munro (Tory Justice Critic) – 416-325-3392 / firstname.lastname@example.org
Lorenzo Berardinetti (Liberal Justice) – 416-325-1008 / email@example.com
Hon John Gerretsen (Attorney General) – 416-326-2220 / firstname.lastname@example.org