A couple of weeks ago I wrote a piece about the Noir Canada case, in which a small local publisher (Écosociété) of a controversial book which criticized the mining industry got the legal equivalent of a major smackdown from the courts. This case, and many others involving SLAPPs (Strategic lawsuit against public participation), was denounced by many, including yours truly, as a threat to our right to freely express ourselves and engage in democratic debate.
With your indulgence, I would like to pick up where I left off in that article, and describe another case which arguably involves the same type of legal and ethical issues. Though a simple copyright infringement case might not seem like the stuff of civil rights, a closer examination of the circumstances in Ms Deborah Kudzman’s legal struggle against the Lassonde Corporation (makers of Oasis fruit juice products) illustrates perfectly how access to justice in our system is definitely rigged in favour of the rich.
The facts of this lawsuit may strike you as banal at first blush. Ms. Kudzman was served, back in 2005, with papers by Lassonde for allegedly violating their intellectual property by naming her small company, which sells soap products mostly, Olivia’s Oasis (after her daughter). Judge Dionya Zerbisias ruled against Lassonde on the basis of the Justice Ian Binnie consumer protection doctrine: we must not take the average consumer for “morons in a hurry” or, in other words, how much of a dumbass to you have to be to confuse a soap bottle with a box of juice?!
But she also awarded punitive damages ($25 000) and the defendant’s legal costs ($100 000). This was necessary because, in the judge’s opinion, the case represented an abuse of the justice system and an attempt to legally intimidate the defendant into submission. On appeal, the Québec Court of Appeals actually overruled the lower court judge’s order to compensate Ms Kudzman.
Ms. Kudzman would have been up the proverbial shit’s creek without a paddle, were it not for an uproar online, specifically on Twitter (including leading Québecois twit and TV personality Guy A Lepage), where angry messages called for a boycott of Oasis unless they dropped their case against her. Sure enough, when the flacks at Oasis saw the major PR scandal that was brewing over this situation, they caved in to public pressure and agreed to comply with the original sentence and pay Ms Kudzman for her troubles.
Courts need to wake up, as judge Zerbisias did, to the new reality in the legal business. For corporate clients with deep pockets, justice is a ruthless sport in which money is virtually no object. Whereas their smaller opponents are sometimes bankrupted by the process, regardless of the outcome, as would have happened to Ms. Kudzman had the public not intervened.
Under the current rules, there has to be flagrant case of a SLAPP or frivolous lawsuit for a judge to award costs to the winner. It’s as though lawyers are doing everything out of the kindness of their hearts, instead of the skyrocketing legal fees that most big firms actually charge their clients nowadays.
In this case, not only did the courts get it right but, arguably more importantly, the court of public opinion applied serious pressure on this corporate bully to pay up. Justice needs to be affordable for it to be done. The way things are going, the costs associated with lawsuits need to be taken into account by judges when they hand down their sentence.
* Images: techvibes.com, CTV