AbeBooks.com. Thousands of booksellers - millions of books.
Feed on

Nothing to lose

gavelI am going to try to provide a public service – one I have been concerned about for many years. It concerns the law of defamation.

Athana Mentzelopoulos, Deputy Minister of Jobs, Tourism and Skills Training with the Provincial Government has sued Rob Fleming, NDP, MLA for making false and malicious statements about her salary, and alleged pay raise, and her friendship with Premier Christy Clark.

(I will – I hope she doesn’t mind – call her Ms. M.)

I must tell you that I don’t know either party. I don’t believe that I have met Ms. M. and while I probably have met Mr. Fleming, I couldn’t pick him out of a crowd.

I have absolutely zero interest in the merits, if any, of the case and don’t intend to get into them other than tangentially.

Defamation lawsuits consume the life of the people  bringing them, especially if they have to pay for the costs themselves, which they usually do. One is surrounded by  fair weather friends and soon friends and acquaintances cross the street to avoid talking to you because the lawsuit has become your sole topic of conversation. Marriages suffer.

During the time I was in radio I suppose I was sued four or five times.

In each of these lawsuits, I was held harmless. The radio station and the insurance company looked after all of my costs. For me it was only a pain in the ass that I had to get involved in occasionally over the years. For the plaintiff, however, it was quite a different story.

One of the cases in which I was involved is a very famous one. It overturned the law in Canada changing it to that as practiced in the United States as opposed to Great Britain. There was, of course, no way that the plaintiff knew this was going to happen and indeed it came as a considerable surprise to our side.

To just touch upon the facts, the plaintiff was and remains a public figure in the Fraser Valley. I made some adverse comments about her and a meeting she had attended and she sued me. The lawsuit took, as I recall, about eight years to complete.

Just to recapitulate, during that eight years the lawsuit was a nightmare to the plaintiff who had to finance her side of it on her own while for me it was an occasional nuisance.

When we went to trial, I evidently didn’t have a prayer. The trial judge took an instant dislike to me – and I to her – and she summoned us into her private chambers just before giving judgment and reamed my ass out.

What a surprise it was to find that she gave me judgment!

In due course the plaintiff took the matter to the British Columbia Court of Appeal. There it was quite a different matter and the court found three to nothing against me. That looked like the end of the matter except to have an assessment of damages.

My counsel wanted to appeal to the Supreme Court of Canada except that the upper court very rarely ever took civil appeals, preferring that they be settled in the provincial courts of appeal. To our amazement we were granted leave to appeal.

At this point I knew that there had been as sea change in judicial attitude. If the Supreme Court of Canada wanted to hear the case they obviously had something in mind about the laws of defamation in the country.

Many, many months later, the case was finally heard. To my astonishment the entire nine members of the court sat on the hearing. I could not remember another time that this happened for a civil case.

In any event the Supreme Court found nine to nothing in my favour. Indeed they did change the law!

I’m going to come back to the consequences for the plaintiff but first let me allude to what the law is as it relates to the facts we have in the newspaper report in this case.

It is my understanding that Ms. M. has been a deputy minister in the BC Communications Branch. Deputy ministers, sad to say, have over the years become political appointments. No more is that so than in the department of communications which is, frankly, the government’s propaganda arm. She has also been a deputy in the Federal Government.

As a minister she apparently was making some $217,000 and received a $30,000 increase last year. She was also part of premier Clark’s wedding party and that I would think is enough to conclude that they are friends.

There is nothing whatsoever wrong with the foregoing. Ms. M. has done nothing wrong whatsoever and so far as I know is an excellent deputy.

She is, however, and note this well, a high-profile political figure in British Columbia. We like to pretend that this is not true and that Public servants are above and beyond politics and are strictly there to serve the public. We are not talking, however, political theory here but political reality. The things Mr. Fleming has said or is alleged to have said, all of which are, no doubt, inflammatory, unkind, and, although I don’t know this, may or not be entirely true. The fact remains he made them in one of the most hostile political arenas in Canada.

I don’t wish these remarks to be taken as approval of anything Mr. Fleming apparently said – that’s not my point and I frankly could not care less. What must be said is that  remarks of this sort under these situations are scarcely unique in our province.

Before the case of WIC Radio Ltd. and Rafe Mair v. Kari Simpson, I would’ve thought that Ms. M. had a good case. That’s what Ms. Simpson thought – that’s what we thought as well.

I am no expert on any branch of the law and have not practiced law for nearly 40 years. I have, however, been exposed to the innards of why we have a lot of very unhappy litigants in defamation cases.

Without getting into the intricacies of the Simpson case, it generally decided, supporting American law rather than British, that in cases involving public figures it is not only necessary to prove that what was said was wrong, that it was defamatory and that it caused damages, but now added to these requirements was “malice”. This is basically what the Simpson case has done in Canada.

Now, the word “malice” in law has a very special meaning and I don’t think I have either the time nor the expertise to describe it. Let it be said however that it imposes a very substantial barrier indeed.

Quite unwittingly, Ms. Simpson changed the law of Canada and Ms. M. had best take that into account.

When I heard about the Simpson decision the press came to  me and asked how I felt, it certainly wasn’t a feeling of victory.  I was overwhelmed by one thought – it had cost Ms. Simpson, I was told, some $600,000 or more to have a legal decision as to whether or not she had been defamed. I have no idea what the damages might have been had she been successful but they would scarcely have been worth the candle. I said that I thought it was a tragedy that Canadian law had descended to the point where such an enormous expense had to be paid for what should’ve been a rather simple answer to a simple question – did Mair libel Simpson and if so what should he pay?

I thought about all that Ms. Simpson had been through and as you watch the law case proceed and see the people around her cheering her on you know that this lawsuit became and perhaps still remains her life.

This was a legal tragedy and it’s all very well to say she brought it on herself but the relevant point is a citizen should get better, cheaper and quicker law by far than that.

Ms. M. frankly states in the news report that she is paying her own way. I suspect without knowing that the NDP will pay Mr. Fleming’s costs. The playing field, as it was with Ms. Simpson, is scarcely level.

Lawsuits, like most human relations, start out with passion and a great deal of self-justification. Were it not for the consequences to follow, that might be reasonable.

I simply leave it this way for Ms. M.

Get out quick while the getting out is good. I can only offer this bit of help – if you do and Mr. Fleming starts to make a lot of noise about court costs and so on, I for one will editorialize against him and the NDP.

Small comfort perhaps. But Ms. M., you are embarking upon a course which, unless you get lucky, is going to prove tragic.

You will rue the day you did not follow this advice of a man who’s observed libel suits up close.

One Response to “Nothing to lose”

Leave a Reply