Pros and Cons of Litigation

The decision to take legal action needs to be very carefully thought out and taken on only as part of a larger strategy. Legal battles are costly and require a high degree of commitment over a significant period of time. Sadly, laws and regulations in Canada regarding intensive livestock operations are relatively weak, so you must assess the consequences of losing, as well as the benefits of winning your case. Do not decide to take legal action based on the feeling or belief that what the ILO is doing is wrong, you are right, and therefore you should win. Have a full and frank discussion with your legal counsel to assess whether your case is winnable. If your group decides that going to court does make sense, be sure you are well-informed and able to commit the necessary time, money and energy required for the duration of the court battle.

Pros

  • Can create precedent that will prevent future ILOs from getting away with the offence
  • Can stop or delay development while legal issues remain unresolved
  • Can show the ILO corporation you are serious
  • Can expose the ILO to increased public scrutiny as your case gains access to evidence

Cons

  • Can create a damaging precedent if you lose, making it harder for other communities to defend themselves against the offence in question
  • Can be very costly and use up resources (financial and personal) that could have been used in other ways
  • Can heighten conflict, making it more difficult to repair relationships in the community later on

You may have to pay court costs to the other side if you lose. Costs are a reimbursement for the expense of bringing or defending an action in Court. The Court may award costs as part of the settlement of a legal action. Normally, the losing party must pay costs to the winning party.

Hiring a Lawyer

A major consideration in deciding whether to pursue a legal action is finding the right lawyer and paying for his/her services. You will have to pay the lawyer’s fees (charges for work done by the lawyer) as well as disbursements (things the lawyer paid for on your behalf in order to pursue the case). The lawyer may charge an hourly rate (expect to pay from $200 to $400/hour), a flat fee, or he/she may work on contingency (a percentage of the settlement, payable only if you win).

To find a lawyer contact your province’s Private Bar, and any public interest organizations or environmental law groups that operate in your province (See the Provincial Resources section for your province for a list of public interest law groups). Some private firms will do “pro bono” work (that is, free of charge to you) as a form of public service.

When working with a lawyer it is important to be very explicit and focused in your communications. The group needs to have a clear decision-making process in order to instruct the lawyer effectively. A mutually respectful relationship that recognizes the expertise and interests of the lawyer and the client will be a major asset in any legal action.

Nuisance suits and “Right to Farm” legislation

Each province in Canada has passed some kind of “Right to Farm” legislation since 1996. These laws are apparently meant to protect farms and farmers from nuisance suits due to incompatibility with newer non-farm activities such as acreages and urban recreational uses. However, they are used to shield ILOs from liability for nuisance as well.

ILOs are protected from nuisance suits if they use “normally accepted agricultural practices”. In some provinces, having their activities so defined is all the ILO needs in order to avoid liability for nuisance. In Manitoba and Ontario, an ILO operator that does not meet the requirements of other relevant laws, such as municipal bylaws and environmental statutes, could be found to be operating outside of accepted practices, and thus open to liability for nuisance.

In every province, it is up to the neighbour making the complaint to prove that the ILO is not following normally accepted agricultural practices. The procedure for determining whether an ILO meets the criteria of the right to farm legislation varies from province to province. Some provide for a mediation process, others have a quasi-judicial administrative process.

Strict liability

Rylands v. Fletcher is the oft-cited precedent under Common Law for certain types of liability cases. In order for it to be relevant a physical invasion of land (such as a spill) resulting from the defendant’s actions (or failure to act) is required, it must have caused damage, and the plaintiff must own (or have an ownership interest in) the property in question. Rylands v. Fletcher will not apply if the court deems the use of the land in question is overly sensitive.

Conflict of Interest

Public officials are required to disclose any conflict of interest they might have, and to remove themselves from debate and voting on any matters where conflict exists. Conflict of interest is usually defined as the individual or a member of his/her immediate family having a personal pecuniary (money) interest in the outcome of a decision they are involved in making. If you suspect that an elected representative, government appointee or civil servant who is involved in decision-making on an ILO proposal may be in conflict of interest, check the policy, rules or regulations pertaining to that person’s position or office. If conflict of interest is found to exist, the decisions in question may be over-turned by the courts.

Fisheries Act

Under the Fisheries Act and the Criminal Code of Canada, a private party can bring criminal charges against another individual or company if they have reasonable and probable grounds to believe that the person or company is harming and destroying fish habitat, or is depositing deleterious substances in waters frequented by fish.

SLAPP Suits

A “Strategic Lawsuit Against Public Participation”, or SLAPP suit, is a lawsuit filed against an individual who is fighting a corporation or speaking out against a business. They are an attempt by a company to silence people who are critical of that company’s operations or who are trying to hold the corporation accountable for some wrongdoing. The Sierra Legal Defense Fund identifies the following characteristics of a SLAPP suit:

  • The plaintiff is usually a mid to large-sized company.
  • The suit claims enormous damages and generally seeks an injunction.
  • The defendant has been speaking out with some success in an attempt to influence government policy or public perception, and the issue is one of public interest or concern.

SLAPP suits can be very effective—many individuals fear the threat of a lawsuit and will not speak up against a company, even if the company is violating the law. One of the most famous SLAPP suits in recent times was the Cattlemen’s Association lawsuit against Oprah Winfrey over her statements about beef. (Ms. Winfrey won.) Your best protection against SLAPP suits is to be careful to always get the facts before you issue a statement. In addition, stay away from personal attacks and media sound bites that include statements you can’t support. Finally, realize that SLAPP suits are meant to keep you quiet—those who file such a suit don’t do it for the purpose of winning in court, they do it with the hope that the strain and expense of defending against it will deter you from speaking. If you have to contend with a SLAPP suit, there is help available. For extensive information on what to do, read the Survival Guide for SLAPP Victims