The Canadian fight over an Oshawa plant closure is getting nasty. Now, a legal threat could threaten to cause the debate to spill over into the realm of free speech.
There’s no way of beating around the bush on this fight. Things are getting ugly with the Oshawa plant closure story. While this isn’t the typical story we cover here on Freezenet, recent developments have caused this story to spill into the realm of free speech – something we do cover here.
This story really started last year when General Motors (GM) announced that various vehicle production facilities will be closing in various locations across North America (largely US and Canada). What made this move controversial is that, according to critics of the move, those plants are being moved to Mexico.
For Canada, a particular flash point in this debate centres around the Oshawa plant. From a report at the time:
General Motors (GM) has spoken to Unifor national president Jerry Dias Monday and a face-to-face meeting has been scheduled for Tuesday afternoon in Detroit, Mich., about the future of GM’s Oshawa, Ont., plant.
A response was expected from the company Monday after a December meeting between the two parties, on whether GM would be willing to work with the union representing autoworkers to keep the Oshawa plant open.
GM’s decision — which would also see production shifted to Mexico — has been contested by the union.
Some people say that the loss of the Oshawa plant would devastate the community because it provides a lot of jobs in the area.
After a lot of discussion both internally between the union and GM as well as the debate spilling over into the political realm, it seems that GM isn’t budging on its decision on the closure.
Recently, however, things began taking a nasty turn in this debate. With the Super Bowl just around the corner, Unifor decided to run its own ad for Canadians watching that sporting event. From the Toronto Sun:
Canada’s largest private sector union is taking its General Motors boycott campaign to the Super Bowl.
Unifor, which represents 315,000 employees including GM workers, has paid for an ad to run during Sunday’s broadcast of the NFL’s championship game, telling consumers to not buy Mexican-made GM cars as part of its campaign after the announcement of the closure of the company’s assembly plant in Oshawa last November. The ad, which will broadcast in both English and French, says that when GM needed help, it received a $10.8-billion bailout from Canadians and in return the company continued to expand in Mexico.
It ends with the tag line, “You may have forgotten our generosity, but we’ll never forget your greed. You want to sell here. Build here.”
That, of course, caught the attention of GM which demanded that the ad be taken off the air. From the National Post:
The commercial accuses GM of continuing to expand in Mexico while leaving Canadians “out in the cold” and makes claims about the costs of a 2009 auto bailout.
GM sent a cease-and-desist letter to Unifor giving it a Saturday deadline to stop using the ad.
GM says in a statement that the ad is misleading and inaccurate.
That deadline came and went with no change in Unifor’s intention of running the ad. In fact, Unifor came out and said that GM is simply trying to intimidate Unifor with its legal threat. From the CBC:
The union that represents workers at General Motors’ Oshawa plant say the auto giant is trying to “strong-arm” it from airing a critical ad during this year’s Super Bowl and on social media.
According to Gowling WLG, the multinational law firm representing GM Canada, the ad set to air tonight contains several misleading statements “designed intentionally and maliciously to mislead Canadian consumers and forever tarnish GM’s reputation with them.”
“Unifor’s publication of the advertisement has caused, and if not immediately withdrawn will continue to cause, substantial and irreparable damage to GM,” the letter says.
Unifor posted a copy of the document online. A spokesperson for GM confirmed its authenticity in an email to CBC Toronto.
In an interview, Dias said that Unifor has no plans to comply with GM’s demands. He said the letter amounts to an attempt to “intimidate” the thousands of workers who will be impacted by the company’s decision to close its sprawling assembly plant in Oshawa.
He reiterated, as he has on a number of occasions, that during collective bargaining talks in 2016, GM executives committed to keep the Oshawa plant open until at least the end of 2020.
“Here they are two years later going against their word. So if anybody is tarnishing the reputation of General Motors, it’s a self-inflicted wound,” Dias said.
“We are going to continue to ratchet up our campaign because we expect them, just like everybody else, to live up to their word. If they can’t live up to their word, well, then they’re going to pay a heck of a price for it.”
What all this amounts to is the possibility of a defamation lawsuit. Now, a problem here is the fact that this is happening in Canada. Here’s an excerpt from Wikipedia:
Radical reforms to the common law of libel and tort of defamation were initiated in the United States and elsewhere in the Commonwealth after major court rulings expanded the definitions of qualified privilege, reportage, and outlined the public interest value of criticism of politicians and corporations. Calls to reform Canada’s “antiquated libel laws” began to appear in the 1990s, continuing to the present.
In a 2006 commentary comparing Canadian laws with US and Commonwealth laws at that time, the situation was described thus:
For all the lofty quotes about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English-speaking world.
Libel law developed in an ancient era which we would today consider backward, tyrannical and repressive. It is rooted in 16th and 17th century criminal statutes protecting nobility from criticism. Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel we would recognize today had been established. In Law of Defamation in Canada, Professor Brown notes that the common law of defamation has been described by scholars and judges as “artificial and archaic” and characterized by “absurdities”, “irrationality”, and “minute and barren distinctions” (pp. 1–3).
While social values and legal concepts have evolved dramatically of the past 200 years, the common law of libel in Canada remains startlingly unchanged.
Furthermore, Wikipedia shows the following:
2006-2011 saw significant developments in Canadian jurisprudence, with many important issues being clarified and the law changing generally in the direction of that occurring in the US and elsewhere in the Commonwealth:
– In Crookes v. Newton, the Supreme Court of Canada reiterated its own opinions in these recent cases, citing the application of fair comment and of responsible communication on matters of public interest.
– In Grant v. Torstar, the Court, quoting Jameel & Ors v. Wall Street Journal Europe Sprl, made the latter defence available “to anyone who publishes material of public interest in any medium”. Moreover, it defined the concept of “public interest” expansively:
So, in those cases, if you publish material like a news site (such as us) or a newspaper and you are serving a public interest, then you have that defence available to you. Should this case go to trial, lawyers on GMs side could theoretically argue that Unifor is not a news service, therefore, more recent protections afforded to Canadian’s don’t apply here.
Unifor, for its part, would have to argue that such protections should also apply to, at the very least, unions, because unions protect the interests of Canadians. All this, of course, is based on the information we have above.
From the outset, if GM were to proceed with a defamation lawsuit, they currently have a lot of advantages just based on the laws alone. Moreover, this is a multinational corporation that regularly deals in billions of dollars. They can afford all the high priced lawyers they can get their hands on to make sure no stone is left unturned.
Unifor, for its part, is a large union spread across Canada. If they can afford Super Bowl ads, they can afford some high end lawyers on their part.
No matter how many facts are on Unifor’s side, they would still have an uphill battle ahead of them. This is not to say it’s an impossible fight, but it’s not as though they have a lot of advantages as far as the law is concerned. Unless there is a court case we’re missing here, it looks like new precedence is going to have to be set before they have a shot at winning a potential legal fight here. That’s something GM doesn’t appear to need to do here.