SLAPPED Kathleen Smith (aka KikkiPlanet) Slapped with $500,000 SLAPP Suit

SLAPPedEarlier, I wrote about a co-operative community in Edmonton known as ArtSpace, which was peripherally involved in an ongoing, protracted labour dispute between AUPE, the Alberta Union of Public Employees and an organization called SAIL (Support for Artspace Independent Living.)  SAIL provides, as you can read on their website, basic personal care services, meal preparation, and laundry.  The job description can be found here.  An ArtSpace member may, or may not receive some, or all services provided by SAIL, so many residents – the majority, in fact – have nothing to do with SAIL, nor SAIL’s dispute with AUPE

The dispute lasted almost a year; and only recently came to an end.  AUPE lost (my interpretation).

In my previous blog post about ArtSpace, I detailed some of the tactics employed by AUPE members on the picket line.

I am not the only person to do so.  A friend of mine, Kathleen Smith of Kikkiplanet, has also tweeted extensively about the plight of the ArtSpace residents.  Make no mistake – AUPE is not in a dispute with ArtSpace; but with SAIL, however their tactics seem to be targeting anyone who approaches the picket line.

Kathleen and I don’t always see eye to eye.  We have sparred verbally many many times.  Our discussions have become heated, even to the point of anger however we have come to an understanding and have mutual respect.  She’s a smart, articulate lady, and she has, many times, made me reconsider my opinions.  Sometimes I have adjusted them.  Sometimes I haven’t.

The ongoing online exposure that AUPE has received has not been kind to them.  I think, in fact, AUPE is starting to feel the heat somewhat.  ArtSpace Under Siege, in a blog post dated September 30, indicates that AUPE’s picketers have “toned down” their tactics somewhat.   I think that is solely due to the negative attention they have garnered online.

AUPE, in realizing they were losing any traction they had in their dispute, must have realized they needed to silence the criticism, and filed a Statement of Claim against Kathleen Smith, the unknown bloggers of Artspace Under Siege, and a Conservative Party nomination candidate in Ontario. They claim they are using the law as a shield, not a sword, however, looking at the details of the Statement of Claim (and I have obtained a copy of it) one can see very quickly the weak nature of their claim.

This lawsuit is not about protecting their reputation.  They know full well their own actions are what have destroyed any reputation they had.  This lawsuit is about intimidation.  It’s an attempt to stop bloggers – such as me – from posting and commenting on the situation over at ArtSpace.  It’s called a Strategic Lawsuit Against Public Participation, which is shortened to SLAPP Suit.  The name is very apropos, because it describes – precisely – what the lawsuit is meant to do – slap someone, hard, publicly, and, they hope, costing them a very large sum of money as a form of “punishment” for speaking out against them.

The plaintiff of a SLAPP suit doesn’t expect to legally win the lawsuit; if they do, it’s a bonus.  No, it’s about making the defendant pay.  They must hire a lawyer, and every time there’s a letter, discussion, meeting, negotiation, argument, court date, etc. etc. etc., the defendant must pay more.  An organization such as AUPE has deep pockets too, because they have a large membership and pool of funds from which to draw.  An individual, on the other hand, does not.  The hope, then, is the individual decides that the funds aren’t worth paying, and negotiates a settlement.

A SLAPP suit is using the legal system as a form of bullying, pure and simple.

If you still aren’t convinced, let’s actually examine the allegations contained within the Statement of Claim.

AUPE contents they were accused of four things, namely that

  1. They:
    1. broke Alberta’s Labour Relations Code,
    2. violated human rights legislation,
    3. engaged in criminal behaviour, and
    4. otherwise acted against the law
  2. Deliberately engaged in psychological, verbal, and physical abuse towards ArtSpace Residents
  3. Acted dishonestly and manipulatively
  4. Acted with improper purposes unrelated to or inconsistent with labour relations purposes.(Don’t ask me, because I have no idea either.)

Which, of course, AUPE says, is the usual:  defamatory, damaging, harms AUPE’s reputation, and the usual things that defamation plaintiffs usually go on about.

Now, in legitimate cases of defamation, damage to someone’s reputation can be serious business.  If a highly-visible businessperson is falsely accused, in public, of being a child molester, for example, that could seriously harm their business prospects.  A successful defamation suit could end up with a multi-million dollar award, and rightly so.

But not here.

Defamation cases usually have three defences:

  1. Justification – The material was true.
  2. Privilege – the material was published or printed in a privileged environment, where the person communicating it is immune to litigation for libel or slander.  This applies, for example, on a witness stand at trial, or an MP speaking in the House of Commons.  It also applies to spouses talking between themselves in a private conversation. ((In researching this tome, this particular piece of information was quite surprising to me.  Here’s my source.))  The material may also be in the public interest, and the publisher conducted due diligence in attempting to verify the information.
  3. Fair Comment – The material was opinion.  Opinions cannot, by definition, be defamatory, because they are not statements of fact, but, rather, interpretations of the facts available.

The AUPE lists 35 different posts to back up their claim, but we can definitely distill the gist of the posts down to a number of “themes” — that the AUPE was abusive, acted contrary to labour relations code, used racism and sexism (violating human rights legislation), engaged in criminal behaviour, and otherwise acted contrary to the law.

ArtSpace residents have been diligently recording the AUPE picket line on video.  They have hours of video on file, most of which is boring; consisting of just watching people wandering around.  However, within this video are quite a few examples of bad behaviour on AUPE’s part.

On June 11, 2014 at 8am, AUPE picketers brought an air raid siren to the picket line with them. A friend of mine who is a member of AUPE denied this happened, and certainly not at 8am. (Update: the video has been pulled down from YouTube at SAIL’s request.  I’m told AUPE demanded it as part of whatever settlement arrangement they had, however because many of the videos were ArtSpace’s rather than SAIL’s, all SAIL could do was request.  ArtSpace, while not wanting to take the videos offline, agreed in order to expedite the settlement process.) Having seen the video, I can tell you that  a quick review of ArtSpace’s location on Google Earth shows how the high rise structure faces south. The shadows shown in the video are long, meaning the Sun is fairly low in the sky. The shadows extend to the right of the vehicles and people, meaning the Sun is over on the camera’s left. Facing south, if the Sun is on the left of you, it means it’s in the east.

Later, a father of a sick child, living the the ArtSpace apartments across the street, approached the picketers blaring the air raid siren and asked them to stop.  This dad has nothing to do with SAIL, and his son had just come home from the hospital.  An AUPE picketer got into the father’s face, screaming, including the words, “why should I care about your son?”

Another lady had a 5-year-old son.  Her SUV was surrounded by AUPE picketers because she lived in ArtSpace, and works as a nurse.  She’s a member of the UNA.  The AUPE thought she was crossing the line to work; when all she wanted to do was go home.  Her son is 5.  If I remember correctly, this is the same SUV that had AUPE picketers surrounding it telling her son that he had a “bad mommy”.  I’m told he is still showing signs of physical and emotional trauma.  Another member of ArtSpace had to be hospitalized for two weeks and is still experiencing issues.

This is what AUPE did to these people.

Now, let’s look at Alberta’s labour code:

Dispute-related misconduct

154(1) No employer, employers’ organization, trade union or employee and no person acting on behalf of an employer, employers’ organization, trade union or employee shall

(a) engage in dispute-related misconduct, or
(b) use or authorize or permit the use of a person or organization of persons who are not involved in a dispute and whose primary object, in the Board’s opinion, is to prevent, interfere with or break up lawful activities in respect of a strike or lockout.

(2) In this section, “dispute-related misconduct” means a course of conduct of incitement, intimidation, coercion, undue influence, provocation, infiltration or any other similar course of conduct intended to prevent, interfere with or break up lawful activities or likely to induce a breach of the peace in respect of a strike or lockout.

Reading through (2), which defines “dispute-related misconduct”, I see a number of key words and phrases standing out: “incitement”, “intimidation”, “coercion”, “provocation”, and, “likely to induce a breach of the peace”.

I’m no lawyer, but getting in some dad’s face and screaming at him, and blaring an air-raid siren at 8am, certainly can be construed as a “breach of the peace”, “provocation”, “incitement”, and “coercion”.  The message being clear: “negotiate a deal with us, and we’ll stop blaring an air raid siren at 8am.”

Now consider this:

Another video shows a picketer with her face up to a van shouting at the occupants.  She used the n-word used four times in 16 seconds. Regardless of the skin colour of the person delivering the slur, it’s racism – which can be construed as a breech of Canada’s Human Rights legislation. The colour of a person’s skin has nothing to do with their value as a person. Expressing your disgust for the actions of a person choosing to cross a picket line – and, while I hate this behaviour – is fair game, and, if you watch the video in full, you see a lot of it, but using the n-word is going too far.

I think it’s plain to see that AUPE’s tactics in this whole extended dispute were pretty much, “in the wrong.”  The opinions expressed, and the facts posted, through the videos which I’ve linked to clearly show extremely poor behaviour on the picket line.

AUPE has no case.

And they know it.

This is a SLAPP suit, pure and simple, and, while as of right now, the dispute between AUPE and SAIL has come to a close (SAIL won, by the way), the lawsuit against Kathleen Smith et al continues, causing undue stress, concern, and financial burden.  When the time comes, I hope the judge throws the book at them.

About Steven Britton

Steve is a freelance programmer, partial billionaire, dad, Recovering Atheist, Conservative, and occasionally prolific blogger.
  • well written Steve. I hadn’t followed the ARTSPACE story at all until Kathleen had mentioned a recent judgement about AUPE. Nice to get the background.