Alberta Premier Jason Kenney (David J. Climenhaga).

A coalition of Canadian environmental groups has thrown down the gauntlet, challenging Premier Jason Kenney to a legal duel over his serial claims his government’s so-called “Public Inquiry into Anti-Alberta Energy Campaigns” proves they spread misinformation about Alberta’s fossil fuel industry. 

Rather than using epees or sabres in mortal combat, of course, the duel is to be fought by lawyers wielding fountain pens and legal precedents. But the potential for damage to Mr. Kenney and his United Conservative Party is quite real. 

Alberta Inquiry Commissioner Steve Allan (Photo: Lieutenant Governor of Alberta).

According to a report yesterday by the Canadian Press, a letter from eight environmental groups arrived in Mr. Kenney’s office on Monday setting down a clear ultimatum: Retract and apologize by Nov. 30 or we will see you in court. 

The letter, the CP said, has been signed by the Dogwood Initiative, Environmental Defence Canada, Greenpeace Canada, Raincoast Conservation Foundation, Sierra Club Canada Foundation, Sierra Club of British Columbia Foundation, West Coast Environmental Law and Research Foundation, and the Western Canada Wilderness Committee.

Readers will note that this group includes at least one potential plaintiff that runs a legal shop specializing in litigating environmental causes. CP’s report implied other environmental groups may join the effort, but didn’t state so explicitly. 

Alert readers will recall that when Commissioner Steve Allen’s inquiry delivered its final report last July, a year late and a million dollars over budget, it was unable to keep Mr. Kenney’s pre-election vow it would uncover a vast conspiracy by U.S. environmental charities to oppose development of Alberta’s oilsands and “landlock” the province’s oil industry. 

Instead, Commissioner Allan said, “To be very clear, I have not found any suggestions of wrongdoing on the part of any individual or organization. No individual or organization, in my view, has done anything illegal. Indeed, they have exercised their rights of free speech.”

No “lies and disinformation” or “foreign-funded radicals” were uncovered, despite the fact the government gave Mr. Allan five time extensions and raised his budget to $3.5 million to give him  a chance to come up with something. 

You wouldn’t know it from what Mr. Kenney and other UCP politicians have been saying ever since, though. Mr. Allan could only show $38 to $59 million had been spent to oppose Alberta fossil fuel developments, not the $1.3 billion repeatedly claimed since by the UCP. 

Military theorist Carl von Clausewitz, 1780-1831, as rendered by Karl Wilhelm Wach, 1987-1845 (Image: Public Domain).

The Premier’s Office responded defiantly to the legal threat. “We will of course vigorously respond in court, if and when necessary,” a spokesperson told the CP reporter. 

But behind the scenes, they have to be worried. Canadian defamation law tilts the playing field heavily against defendants. A reverse onus applies: unlike in criminal law, the defendant must prove he did not defame the plaintiff. Or, alternatively, that what he said was true, or that it was a fair comment based on true facts, or that he was somehow privileged to say it. 

Mr. Kenney could claim absolute privilege if he had only made his statements in the Legislature. Alas for him, they were plastered all over social media, under his name. 

Worse, from the premier’s perspective, he will have to appear in court to make his case – and if he appears in court, he will have to allow himself to be cross-examined by the plaintiffs’ lawyers. 

The potential for interesting revelations about how the premier and his advisors crafted their messages is quite high should that ever happen. 

Environmental organizations were always at a disadvantage in a fight against Canada’s richest provincial government. 

Now, by threatening to sue Alberta’s premier for defamation for statements he made in public, the environmental groups have employed a novel tactic against the premier’s claims, not to mention the whole premise of the Allan Inquiry – call it asymmetrical legal warfare. 

Britannica.com defines asymmetrical warfare, a term much in fashion in strategic circles nowadays, as “unconventional strategies and tactics adopted by a force when the military capabilities of belligerent powers are not simply unequal but are so significantly different that they cannot make the same sorts of attacks on each other.”

This seems, in a legal forum, not a bad metaphor for what the eight environmental organizations have achieved, just with this letter. 

I doubt Mr. Kenney and the UCP expected anything like this when they set out to employ the Public Inquiries Act, the “War Room,” and the power of the state generally to attack and discredit the environmental movement. 

“War is a continuation of politics by other means,” said the great 18th and 19th Century military theorist Carl von Clausewitz. 

It turns out that lawsuits are too. 

Pass the popcorn! 

Join the Conversation

41 Comments

  1. By some accounts, this story may take some time to reach its conclusion due to the nature of the legal process.

    Where will Kenney be by then? Chief Custodian of the Manning Centre’s brass toilet brush? Second in Command to the Great Leader Harper’s Daily Hair Reconstruction?

    How Albertans put up with this shower is beyond me.

  2. In light of these legal challenges, one wonders what Kenney was thinking when he allowed Allan’s report to be released?

    I mean the report found no evidence of wrongdoing on the part of environmental advocacy organizations, no did it find any activities equivalent to the his of shenanigans that Kenney has performed over the course of his entire political career. Why didn’t Kenney just tell Allan to make the report a complete fraud that would support Kenney’s position? Kenney paid millions of dollars for the report and allowed numerous delays over the course of its operation. Doesn’t Kenney believe in getting what you pay for?

    So, now Kenney and Alberta are in the soup. But no worries, because as with everything else, Alberta will pay for the damages. A flood of public monies solves all problems, in Kenney’s universe. Maybe Kenney can spin (gaslight) all this into an Alberta as victim moment, kind of the way Kenney lost a few billion on that pipeline to no where. Oh, if only Donald Trump was able to overthrow that dummy Joe Biden, Kenney would look like a hero right now. Stupid, Joe Biden.

  3. In light of these legal challenges, one wonders what Kenney was thinking when he allowed Allan’s report to be released?

    I mean the report found no evidence of wrongdoing on the part of environmental advocacy organizations, no did it find any activities equivalent to the shenanigans that Kenney has performed over the course of his entire political career. Why didn’t Kenney just tell Allan to make the report a complete fraud that would support Kenney’s position? Kenney paid millions of dollars for the report and allowed numerous delays over the course of its operation. Doesn’t Kenney believe in getting what you pay for?

    So, now Kenney and Alberta are in the soup. But no worries, because as with everything else, Alberta will pay for the damages. A flood of public monies solves all problems, in Kenney’s universe. Maybe Kenney can spin (gaslight) all this into an Alberta as victim moment, kind of the way Kenney lost a few billion on that pipeline to no where. Oh, if only Donald Trump was able to overthrow that dummy Joe Biden, Kenney would look like a hero right now. Stupid, Joe Biden.

  4. “Mr. Kenney could claim absolute privilege if he had only made his statements in the Legislature. Alas for him, they were plastered all over social media, under his name.”

    Operative phrase: “under his name.” So much for having an army of well-paid comms “experts.”

  5. It is put up or shut up time for Kenney.

    Since commissioner Allan did not find anything, shut up or apologize is his best option and that will split his caucus completely.

  6. These pretend conservatives and Reformers in the UCP have gum on their shoes, and they can’t get it off, no matter how hard they try. They made themselves look like fools, at our expense, and in turn, people are pointing their fingers at Alberta, and laughing at us. What a shame!

  7. Who would have thought the Allen report would have anything of value? Turns out it has, but not to J. Kenney!

  8. I doubt Jason ” Rab Haw ” Kenney studied much of Von Clausewitz. JK follows another famous military quotation though:

    ” Damn the torpedoes… Full speed ahead ”

    David Farragut at the Battle of Mobile Bay

    A noble and courageous sentiment in the midst of a naval battle, not so much when presumably governing the Province of Alberta i.e. ” The Best Summer Ever”

    1. How about another famous quote taken in the heat of fierce naval battle?

      “You May Fire When Ready, Gridley.” Commodore, George Dewey. Battle of Manilla Bay.

      At least Dewey knew when all his ducks were in a row. Kenney doesn’t even have a clue what day it is.

  9. Thanks for writing about this, David, and therefore giving us a chance to comment on the story, since the CBC story yesterday didn’t.

    The CBC story you linked to didn’t really make it clear if a lawsuit would be against Jason Kenney personally, or the Alberta government, probably because it isn’t known yet. This is relevant because it is very likely that Jason Kenney will not be the premier by the time the issue is settled, especially since, as the story says: “If a lawsuit is ultimately filed, Kozak said it would likely to take years to resolve.

    Conventional legal wisdom is to sue the institution, not the perpetrator, since the institution can afford to pay more. As well, individuals can wiggle out of a large settlement by declaring bankruptcy. In this case, however, I would really love to see the suit filed against Jason Kenney personally. If the government has to pay to settle the suit after Kenney leaves, it will just go down as one more example of Kenney frittering away taxpayer dollars. By suing Kenney directly, and I think the case could be made that his comments were outside of his performing his duties as premier, Kenney’s MP pension would be in jeopardy. Furthermore, private citizen Jason Kenney could very easily be paying his own legal bills. A further advantage is that Kenney’s experience could serve as a deterrent to other politicians who think they can spout untruths and have taxpayers cover the consequences.

    1. The case of Stockwell Day’s defamation of a lawyer is a precedent – the Alberta government covered Day’s legal costs, although, to his credit, Day took out a mortgage on his own house to help defray this (but it was a whopping sum – close to $750,000, as I recall).
      Can’t imagine Kenney doing something like that. It would involve admitting he was at fault. so the Alberta taxpayer will once again be on the hook for something that Kenney did.

      1. Don’t forget the Alberta government’s decision to cover Day’s legal costs was made by a subsequent PC government, and I expect a UCP government would probably do the same, but would an NDP government? For that matter, I am loving the mental image of Brian Jean in the premier’s chair when Jason approaches, cap in hand, asking for help.

      2. The only reason Day did that was because he had aspirations of becoming Alberta Premier or PM.

        Neither happened, so Day’s loss.

  10. “The potential for interesting revelations about how the premier and his advisors crafted their messages is quite high should that ever happen.”

    Looking forward to it.

    1. Geez you’d think right wink thing tanks (a typo worth staying) could get the messaging straight. Isn’t that commitment to regulation & “sustainability” the ethics in the vaunted ethical oil argument? By what superior moral imperative do we have to market Alberta crude if the very thing that “hurts” the industry is that which implies its necessity?

      Or maybe it’s just a greenwash and there is nothing ethical about unsustainable carbon intensive resource extraction anywhere it happens.

  11. I hope the lawsuit will also name Sonya Savage. Kenney’s office says, “Bring it!” Good luck with that. The only way Kenney can win this is if the ENGOs can’t prove in court they suffered damage (probably financial, maybe reputation) because of Kenney’s hysterical blather.

    PS: could the ENGOs also name Vivian Krouse? Probably not in Alberta courts; maybe BC?

    1. Mike: In Canadian defamation law, plaintiffs don’t have to prove damages, they are assumed to have been inflicted. This is true notwithstanding the comment by the lawyer consulted by CP, which seems to suggest otherwise. This reverse onus is one of the very bad aspects of that law, which was actually created for use in the notorious Court of Star Chamber. (It was arguably a sound policy at the time, as it suppressed duelling among the governing classes.) Provincial defamation acts should be based on the Common Law tort of slander, which has more sensible rules, than the tort of libel, which was purpose built to make it hard for defendants. As structured, defamation has been a very useful tool for the wealthy to suppress legitimate free speech criticizing their activities. It is rare to see it used against people with power. As for the question about Ms. Krause, I doubt the ENGOs would want to bother with her, for a variety of reasons, including the fact that it would be harder to make a case her statements were defamtory, and in particular that they defamed Canadian ENGOs, as opposed to U.S. charities. However, the answer is yes, a defamation suit can be brought in any jurisdiction where the offending words appeared, and anyone in the chain of publication can be sued, including, theoretically, the paperboy that sold the newspaper on the street. This is one of the reasons I moderate all comments on this blog, and edit or eliminate some. DJC

      1. DJC, thanks for the clarification. I can now see almost as far into this aspect of law as I can into a boulder.

        Anonymous, I had a look at the video you suggested. I generally read such drivel only to find out the general tone of how people are reacting–most of ’em don’t bother to think. And, for the record, it didn’t sound to me as if Suzuki meant to suggest people SHOULD go blow stuff up. There’s a guy in Europe, Andreas Malm, who HAS been advocating such attacks. Here’s his opinion piece, published by the Guardian:

        https://www.theguardian.com/commentisfree/2021/nov/18/moral-case-destroying-fossil-fuel-infrastructure

        I doubt anybody’s taking Malm seriously–I sure don’t–but, again for the record, Suzuki was warning, not advocating.

        1. Defamation is a needlessly complicated area of law, expensive to dabble in. Often penalties for minor defamations that combine legitimate criticism with small factual errors clearly should be protected as free speech are far more serious than the penalties for such crimes as assault causing bodily harm and attempted murder. This situation only exists because it serves the interests of the powerful. One of the many positive side-effects of this situation could be needed defamation law reform. DJC

  12. Let’s hope that Mr. Kenney’s words will not be paid for by Alberta taxpayers as were those his former colleague Stockwell Day.

  13. Gee, it was what, a few days without Kenney doing something really dumb? I suppose it couldn’t last.

    If anyone should wonder why he is so unpopular, it is in part because he keeps doing really dumb things. I suspect he believes they have some political appeal, as he tries to position himself as fighting for Alberta, but I think that is largely offset by when they backfire, as they seem to inevitably have. So we have a War Room that is not effective, but a laughingstock, and a Public Inquiry that essentially found nothing. Even many Conservatives do not like repeated ineffective things that are a waste of money.

    The smartest thing to do after the Public Inquiry would be to move on and just forget all about it, but Kenney can not do that. Like someone picking at a scab, he can not leave it alone. So now he contradicting his own Public Inquiry and apparently trying to rewrite history.

    I suppose it no surprise he is being now sued because of his own stupidity. Unfortunately, I suspect the taxpayers of Alberta are going to have to cover the cost of this. I wish the government and the UCP cut him loose, so for once in his life he instead would have to pay for his own stupidity.

  14. One of the things the former MLAs taught me was that the Reformers listen to no one. They have this stupid attitude that they are a lot smarter, boy were they right. I doubt Kenney even bothered to ask our executives why they were wanting the Carbon Tax implemented or if they thought corporations were attacking their oil industry. The retired oilmen were telling us that it was a lie and the oil executives knew we had to try to show the world that were trying to do something about our pollution problem to get the celebrities off they backs.

    Hurling sarcastic comments at David Suzuki for daring to warn Kenney about guys like Ludo proves what a fool he is. Like all of them he needs to get his head out of the sand and show some concern for global warming , when our young people and the rest of the world does care , shows how stupid this guy is. I wonder if Suzuki will sue him, I hope he does?

  15. This is a nice story, and it’s nice to think that maybe he’s gonna face some consequences for *something*, but let’s be real: Jason Kenney is a wealthy white man. The law will always be interpreted to his benefit. I would bet my next paycheque that nothing comes of this (but would be delighted to lose that bet).

  16. Speaking of legalities, how’s that RCMP investigation into Kenney’s Leadership of the UCP going?

    Sorry, but I rather suspect, if and when this defamation lawsuit proceeds it’ll drag out for years. That will be just long enough for the media to drop the story, or for the public to lose interest in it.

    As an example, remember the rather public court case involving Rob Anders and the CRA that was heard in court in October? Not one media outlet reported on it – why is that?

  17. I fully expect an artist to illustrate the Kenney years with a black velvet painting of dogs playing poker, except with the heads of Kenney and key members of his Liquor Cabinet, featuring Steve Allan and his trusty sidekick, the Stetson™ hat. I hope the portrait will be hung in the rotunda of the Legislature, for all to see. What a great reminder of what happens when gullible folks get rabid over a carbon tax that they don’t understand. This is us, Alberta, in a driftwood frame. Aren’t we special?

  18. I recall an encountering with a younger Jason Kenney that was highly instructive.

    It was at fundraising for a RPC candidate and Kenney was there as the guest of honour. It was proclaimed as a future leader and a person of “intelligence beyond compare”. The MC for the event was none other than Ezra Levant (Then a student-at-law) a long-time friend of Kenney’s. He was in a furious, fighting mood. He welcomed Kenney to the microphone, who then launched in a full-throat rage-fest against Chretien, the Liberals, the Laurentian Elites, the globalists, etc. It was an amazing laundry list of conspiratorial bugaboos that enthralled the crowd. Kenney received a standing ovation. Levant returned to the mic and said, “That man is locked and loaded.”

    Later, I had a chance to meet and talk with Kenney. What struck me was that Kenney favoured the passive adulation of the crowd, but one-on-one he was a dismal performer. Quick to anger and histrionics, he seemed somewhat off to me. Maybe he was tired? Or, maybe this is how he really is? Some said that I should cut him some slack, because he was known to have a temper.

  19. Pass the popcorn indeed! I think that although the MSM will prefer to bury this, if it goes onward it will be a great bruise to poke. Sure it will move slowly through the court process but even a small albatross around one’s neck is detrimental. Slowly, slowly, through the next AB election, it may follow JK on to Ottawa, and whatever. A great move by “the gang of 8.”

    Commissioner Allan said, “To be very clear, I have not found any suggestions of wrongdoing on the part of any individual or organization. No individual or organization, in my view, has done anything illegal. Indeed, they have exercised their rights of free speech.” It is said here that awareness of what Jason Kenney wanted to do with this report is why Mr. Allan put this explicit statement in his report and maybe why he delayed it for so long. Methinks commissioner Allan is smarter than he appears under that white hat, and certainly smarter than Jason.

  20. It is Industry propaganda, partisan media publications, Predatory Capitalists, and Extremist right-wing politicians and ideologues, that create and perpetuate the idea that the call for environmental responsibility and sustainability is ‘Hypercritical’ and a threat to future prosperity when the reality is the exact opposite.

    “The reality is that Environmentalists, Conservationists, and those in the population who are environmental activists, AS WELL AS the majority of the scientific community most familiar with the intricate bio-systems of our planet, ALL realize that oil (Fossil Fuels), although it is the most compact, versatile, and exploitable, form of energy known to man, is also a finite resource and is extremely damaging to the environment causing multiple long term detrimental consequences to the entire global ecosystem; the greatest of which today is increasing atmospheric Fund Pollutant levels of CO2.

    It is, therefore, necessary to transition our energy supply from continued dependency on fossil fuels to cleaner forms of power generation wherever possible.
    The continued dependency on burning carbon resources as a fuel is a wasteful, and foolish, use of a very valuable raw material for multiple current, and future expanding, technologies.

    The shift to large- and small-scale Wind, Solar, Geothermal, Tidal, Hydro-electric, Bio-fuels and the implementation of smart grid systems with storage capacity, are absolutely necessities; but a large portion of reducing our dependence on all fossil fuels will be from conservation and efficiency via the elimination of the large volume of energy currently wasted unnecessarily.

    ***
    This is not flipping a switch! The transition to clean energy will be a long-term complicated process that takes initiative and action on many fronts and will require the efforts of individuals and communities, as well as nations, to make the necessary changes and adaptations required over the next several decades.

    It is about recognizing the problems that are a threat to civilized society and taking the short term, AND long term, actions required to deal with them based on the preponderance of available evidence, and technologies, past, present, and future, instead of clinging to faith in the failing status quo.

  21. The UCP story could well be subtitled “1001 Albertan Nights” after that famous tale of the Arabian harem girl who enchants her master with a bedtime story so fascinating he must see her the next night to find out how it ends, which she cleverly postpones each night, making it successively more beguiling until he cannot bed any other of his harem but her.

    Naturally, in the UCP’s case, it’d have to be autobiographical. Critics of course would ask by what stretch of fantasy voters could be beguiled by successively more incredible excuses for such astoundingly poor political judgement we’ve come to expect from Kenney’s new party. In due course historians will arrive at some kind of consensus on why UCP founder, leader and, for now, premier thought the party’s maiden election bid should promise a public inquiry into conspiracies he alleged are beggaring Alberta’s bitumen industry. They’ll probably say something like: Albertans were too shocked by the bitumen market price crash to believe it could be anything more enduring than the low end of an economic cycle—not after seven decades of petro-prosperity, low-to-no taxes, big trucks and belt buckles, and a decade of Albertans dominating federal government. They couldn’t believe something as simple as the “invisible hand of the market”, reflecting a bleak forecast if greenhouse-gas emissions aren’t reduced, can possibly be responsible for such a devastating downturn; therefore it has to be something more elaborately complicated, something hiding behind the simpler razor analysis of Ockham which therefore has to be disguising some ulterior purpose. Pretty soon, enough “therefores” are taken as proof of a conspiracy—even of elaboration as both cause and effect of conspiratorial stealth and utter complexity.

    Therefore the UCP presented a string of alternative-reality scapegoats for bitumen’s demise, supplying the elaboration needed to explain how it is, for example, that Justin Trudeau’s federal Liberal government is to blame when, in fact, it bought into construction of the TMX pipeline from Alberta to the West Coast, or how Rachel Notley’s NDP which upset eight straight decades of right-wing Alberta government can be blamed when it did a remarkably good job of getting the province through the initial shock of the 2014 crash (a year before it won government) and the 2015 wildfires that roasted half of Fort Mac, all while aggressively defending the bitumen industry. Therefore Kenney needed to combine the villainy of elitist JT with the threat of Dipper socialism—in spite of fresh evidence to the contrary— before the electorate’s denial and anger phases of economic grief wore off. Therefore the more shadowy spectre of a foreign conspiracy to beggar Alberta had to be threaded into the closing seam of Ockham’s shroud bag.

    Would that any of us could prosper by ‘getting back on track’ to better times, but since those days and ways are how we got to these more trying times today, better times have to be found by doing something different than what we used to do. Unfortunate circumstances made many Albertans, in particular, disinclined to see it that way. Kenney therefore ginned a sense of victimhood and resentment in voters which paid off in much the same way it did for tRump. Here historians will probably submit evidence that this tactic wasn’t about promising salutary public policy but, rather, purely to win power.

    Both K-Boy and tRump might try to blame Covid for their supposed policies’ disappointments, but there’s plenty of refuting evidence that winning power is, almost by itself, the only practical policy neo-right parties really have, and what is promised as policy is merely politics of getting the job of winning power done. Long before Covid, it was quickly apparent that tRump’s promises hadn’t been given much, if any thought as to how they’d get done, and Covid didn’t change that fact. Kenney can try to blame Covid for why his own ostensible policy promise to resurrect Alberta’s economy has failed, but the Inquiry into alleged anti-Alberta energy conspiracies makes a stronger argument that, like tRump’s supposed policy promises, Kenney’s promise was primarily about winning power, and remarkably light on what public good he’d do with it once he got it. IMHO, this upside-down juxtaposition of policy and politics has become typical of the right and is probably symptomatic of the throes this 40 year-old movement is suffering. Corroborating are the facts that neo-right parties have lost much of their policy-debating and -proposing functions and are instead ginned purely for unquestioning votes, and that politics is otherwise devoted to this end, not to getting good public policy done—which has become starkly evident by its absence.

    I always felt it was conspicuously crazy that the promise to hold a public inquiry wasn’t abandoned after the UCP won. Perhaps K-Boy kept it alive because, for lack of real policy, keeping a promise had intrinsic value. It seems nutty that he could believe it was good public policy—even if it did find the kind of funding he said was aimed against Alberta (which of course it didn’t), what public good would it have done? It might have convinced voters that bitumen’s crash wasn’t because of economic fundamentals, climate change, or shitty UCP governance after all—but that’d only help the UCP’s re-election prospects, presumably because foreign conspirators would take the blame for Alberta’s economic woes. But, still, it wouldn’t do anything to help Albertans, even if, say, the alleged billions supposedly spent to beggar bitumen were to suddenly stop because—uh—I guess the alleged conspirators were—uh— embarrassed by the Inquiry’s findings? D’oh!

    I think Kenney kept the Inquiry alive with a view to the next election—that’s how much he’s preoccupied with power instead of the public good. He could have easily avoided being embarrassed himself by ditching it soon after winning—and it would have saved a few million bucks for the beleaguered provincial treasury. Minster Savage’s declaration that failure to find a gun, let alone a smoking one, “doesn’t matter” because “Albertans know they’re hurting” is, besides being illogically incongruent, simply more proof that it was kept live as a political tool to gin more emotion in voters with the aim to get re-elected, rather than a policy which would do public good —even by just going away. It never ceases to amaze me how the neo-right mangles democratic principles, tells followers to not believe their own eyes, and persists in trying to turn the clock back to a better time without also turning back the amount of GHGs now parked in mid-air all around the warming globe.

    I have to admit, the 1001 lies and excuses the UCP is spinning to keep itself alive is fascinating me probably as much as it’s intended to beguile Alberta voters: I wanna just know how this sordid, politicidal story’s gonna end. Did somebody say, “pass the popcorn”?

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