LAWSUIT TOSSED
Composting dispute ends
A nasty, eight-year-old, odoriferous dispute over an Interior composting site, which seems to epitomize the kind of litigation the NDP government wants to prevent, has come to a judicious end.
In a stinging 103-page decision against the waste-disposal companies that launched the lawsuit, B.C. Supreme Court Justice Nitya Iyer dismissed the allegations as unfounded.
She awarded costs to the residents and a local committee that organized dissent, and that could amount to a substantial financial fillip. By comparison, the judge ordered a resident, who had a default judgment entered against him, to pay only $2,000 in damages and $500 in nominal costs.
The related entities — Northwest Organics, Limited Partnership, and Northwest Group Properties Inc. — sued Sheila Maguire, Meghan Fandrich, Timshell Jackson, Abe Kingston, the Botanie Valley Advisory Committee, and a number of “John and Jane Does.”
Northwest was upset over a fiery debate that erupted in 2010 over Revolution Ranch in the Botanie Valley, just north of Lytton, a $2-million, 280-hectare spread where, starting in 2011, table scraps and similar waste from Metro Vancouver and the Fraser Valley were brought in and transformed into organic compost.
But the judge swept aside the company’s claims.
“Northwest has not proved its allegations against these defendants,” Iyer said. “Some of the allegations are not properly pleaded. Others are unsupported by the evidence. I find that Northwest’s key allegations ... do not have a defamatory meaning that would require the defendants to establish a defence to them.”
Because a default judgment was obtained against Kingston, the unproven claims were taken as proved in his case, the judge explained.
“He took no steps to defend against the claim or to set aside the default judgment,” she noted. “He appeared briefly on the first day of the trial to introduce himself, but did not participate at all.
“He retained counsel to make very brief closing submissions. In these circumstances it would be unjust to make more than a nominal costs award against Mr. Kingston.”
Vancouver lawyer Jason Gratl said his clients, Ed Roest and spouse Sheila Maguire, were relieved the ordeal was over given the stress endured over last several years.
“They’re hesitant to speak, but authorized me to convey they are still stunned at the whole proceedings. They lived for a decade at risk of losing their retirement home.”
The couple bought property next to Revolution Ranch and moved from the Lower Mainland just as the composting project was announced.
Roest was sued for his opposition only days before Christmas, on Dec. 20, 2010.
Gratl couldn’t put a figure on costs.
“It was a huge undertaking, like clearing out the stables,” he said, alluding to one of the Twelve Labours of Hercules. “There were multiple defendants and many days in court.”
On March 30, 2012, Maguire tried to have the company’s litigation dismissed as a SLAPP (strategic lawsuit against public participation) suit, but was unsuccessful in the Supreme Court and at the Court of Appeal.
Her application for leave to appeal to the Supreme Court of Canada was denied in 2015.
The litigation cast a chill across the tiny town as people feared being sued for saying the wrong thing in public.
The local MLA was even ordered to hand over copies of communications, including emails, with her constituents in connection with the controversy.
An anti-free-speech tactic, SLAPP lawsuits first appeared in the U.S. in the late 1980s, intended to censor, intimidate or silence critics by saddling them with legal expenses and sapping procedural demands.
One of the first cases to raise the issues in B.C. occurred in 1992 after what was then MacMillan Bloedel launched a lawsuit against authorities on Galiano Island opposed to its development plans.
It was followed by another high-profile case in 1999, the first considered an actual SLAPP suit, in which the B.C. Supreme Court struck down the claim of a hospital director against the District of Saanich.
Those cases prompted the last NDP government at the turn of the century to pass the nowrepealed Protection of Public Participation Act, the first antiSLAPP statute in Canada.
But, in 2001, the subsequent Liberal government scrapped the months-old law, arguing it was unnecessary and would lead to a provincial “protest culture.”
Since then, Quebec adopted a similar law in 2009 and Ontario in 2015 to “allow the public to participate more freely in public discussions without fear of retribution.”
Earlier this month, Attorney General David Eby introduced an updated version of the Protection of Public Participation Act, but it has not yet been approved by the legislature.
“In my view, this type of proceeding is on the chopping block — it failed to display substantial merit, and so would be precluded by the proposed legislation,” Gratl said.
In short, it stank.
“For the most part, Northwest’s witnesses denied that the facility had an ongoing odour problem,” Iyer concluded, “while witnesses for the defendants said that it did . ... (A)ssessed objectively, the evidence establishes that the facility produced off-site odours at times, and that they ranged from unpleasant to severely unpleasant.”
Northwest’s lawyer did not respond to requests for comment by press deadline.