Tilting At Windmills - Has Nextera Just SLAPPed a Canadian Erin Brockovich?

A young mother and environmental activist in southern Ontario is being sued by Nextera, a wind turbine company, which  is part of an an American based enterprise that has sales of about $15 billion a year. It apparently cut down a tree with a bald eagle nest, an act which she did not like and which she filmed. Here’s her video.

Here’s Nextera’s Statement of Claim, which required the efforts of three McCarthy’s lawyers to come up with a very long and fulsome list of allegations involving “Offending Material” under the  the Trade-marks, Copyright, and Competition Acts and various common law torts including "common-law trade libel", and one I’ve never heard of, namely “appropriating an insignia in which the Plaintiff has a proprietary interest.”

Here’s a great interview by Ezra Levant, in which the woman explains that she can’t afford a lawyer or even the filing fee for her Statement of Defence.

As Ezra suggests, this could be another Erin Brockovich story. Moreover, Nextera is likely going to learn the lessons of the Streisand effect, which is that trying to suppress a discussion on the internet usually just draws more attention to it.

Is this a classic SLAPP lawsuit? The Ontario Government defines SLAPP litigation as:

Strategic litigation against public participation (SLAPP) has been defined as a lawsuit started against one or more people or groups who speak out or take a position on an issue of public interest. The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism. Concerns have been raised that SLAPPs also act as a warning to other potential critics. The effect of SLAPP suits is to discourage public debate.

Hopefully, the very courageous Ms. Wrightman will find competent counsel to defend her against this extraordinary combination of wind and legal power.

If NextEra pursues this matter, it will no doubt be reminded that "parody" is now explicitly included in s. 29 of the Copyright Act as one of the recognized purposes of fair dealing. In the light of that amendment and recent Supreme Court of Canada decisions having to do with fair dealing, the 1997 Michelin decision is surely no longer good law - if it ever was - with respect to copyright. That was the case in which Michelin used copyright law to stop a union from protesting with a parody of "Bibendum", the jolly Michelin character and design trade-mark  And even that decision correctly held that the defendant did not "use" Michelin's trade-mark within the meaning of "use" under the Trade-marks Act. The reasoning with respect to trade-mark "use" is still good law. And recent Supreme Court of Canada defamation decisions suggest that claims that attempt to accomplish via the Trade-marks Act what cannot be accomplished via normal defamation law may face a very rough ride if adequately challenged.

HPK