GUILTY OF LIBEL
Then Postmedia Network Inc., Don Martin and their lawyers acted as though they were above the law.
They were wrong on both counts - as decided by Alberta’s Court of Appeal.
On May 25, 2018, the court ruled that fraudulent concealment and giving false evidence was proven after the defendants were found guilty of defamation in Kent v Postmedia and Kent v Martin, Canwest et al.
That verdict is a singular event in the history of Canadian journalism, politics, and law. Postmedia and Martin are the first news organization and journalist to be found guilty, at trial, of defaming an election candidate.
How did it happen, and how can it be prevented from happening again?
In these cases, the defendants stubbornly denied the Martin Article was defamatory. They refused to correct its many errors or publish a written response from the article's target, Arthur Kent. For nearly five years it was published on the Internet, on dozens of websites owned and operated by the largest newspaper publisher in Canada.
Then, after eight years of litigation in Canada and the U.S., came Don Martin's stunning admission on the witness stand at trial: his article's headline paragraph is "not true." And there was more.
Martin's sources turned on him. The Court found the article's 10 alleged "facts" to be untrue, unworthy of reportage protections, or both. After a 23 day trial, Martin, Postmedia Network Inc. and Canwest Publishing were found guilty of defamation.
By Arthur Kent
In February of 2008, I stepped away from a 35-year career in journalism to stand for elected office in my hometown, Calgary, Alberta. I was a candidate for the province’s governing Progressive Conservatives.
Soon after I spoke out for reform of the party's patronage culture and its tone-deaf governance, a blistering attack was levelled at me by the National Post and Calgary Herald. The article was written by Don Martin - sitting at a desk more than 2,000 miles to the east in Ottawa.
Martin had never met nor spoken to me. His piece contained no comment from me of any kind.
After the article's publication in print and on the Internet, the newspapers refused to publish my written response or correct the article’s many errors. This, despite discovering Martin initially lied to his editors about the number and identities of his anonymous sources.
Ultimately, Martin voluntarily revealed that his sources included two of his longtime political buddies, both PC lobbyists and backroom operators enraged by my advocacy for party renewal. Martin later acknowledged he granted "reflexive" anonymity to each of these regular sources.
Ignoring my notice of possible legal action, Martin and the newspapers’ owner, Canwest, left me no choice. I filed my Statement of Claim in Calgary in July 2008. Later in 2008, I filed an action in New York State Supreme Court. The defendants successfully opposed that lawsuit, but not before assuring New York's appeal court that worldwide damages, if proven, could be awarded to me in the Alberta proceedings.
Then, a bizarre twist: in 2010, Canwest went bankrupt and the purchaser of the newspaper chain's assets, Postmedia Network Inc., continued publishing the Martin Article on the Internet. Postmedia ignored my requests to cease publication of the article. So on November 3, 2010, I filed another, separate action for defamation.
Finally, in June of 2016, some six months after hearing evidence from more than 30 witnesses during a four-week trial, the Court of Queen’s Bench delivered its verdict. Martin, Postmedia and Canwest were found guilty of defamation.
The Court found the article to be riddled with falsehoods. Ten alleged facts, depicting a campaign team beset by low morale and desertions caused by a reckless candidate, were ruled untrue, unworthy of reportage protections, or both.
As well as failing to qualify as truth or reportage, these false assertions could not be saved as "responsible journalism in the public interest" (paragraphs 158 to 193 of the trial judgment).
The defendants were ordered to pay me damages of $260,000, including interest. The trial judgment is final. The defendants did not appeal.
A later judgment in January, 2017 ordered them to pay me a further $250,000 in costs. I appealed portions of that ruling, and on May 25, 2018 Alberta's Court of Appeal awarded me an additional $200,000 in costs. The appeal panel ruled I had proven the defendants had fraudulently concealed records and given false evidence.
Among the findings of the trial and appeal courts:
- At trial, Martin's testimony “lacked candor and was unreliable” and where his evidence conflicted with that of other witnesses "the trial judge almost invariably preferred the testimony of the others."
[May 25, 2018 Court of Appeal decision, paragraph 8]
- Statements and inferences “in the overall context of the Article are defamatory”
[June 8, 2016 Trial Judgment, paragraph 111]
- Kent “suffered substantial distress and damage as a result of the defamatory factual statements in the Article” [para. 191]
- Martin knew “several” of his sources “had an axe to grind”
- Martin misled his editors when asked about his sources, providing “misinformation” rather than candid responses. [paras. 63, 243, 244, 272]
- Martin’s misinformation “likely colored” the National Post’s and Calgary Herald’s refusal to publish my written response to the Article. [para. 272]
- Martin “did not make a meaningful effort to contact Mr. Kent for his perspective prior to publication.” [paras. 153, 241, 244]
- Martin “actively sought out negative information” about me but “failed to make reasonable inquiries to verify” that information. [paras. 159, 239 to 244]
- The Martin Article “was highly critical” and “written in a sarcastic fashion with a mocking tone” and contained “nothing positive to provide any balance.” [para. 238]
Defendants' "intentional strategic decision to conceal"
- The National Post, Calgary Herald and Martin intentionally withheld the Exhibit D-1 “Any more dirt” and D-2 emails until the midst of Martin’s questioning, in breach of the Alberta Rules of Court. [Trial Judgment paras. 282 to 285]
- This “failure to properly address the two most relevant documents in the action” justifies “enhanced damages” payable to Kent. [para. 285]
- "... the Defendants made an intentional strategic decision to conceal that they were advancing a claim for journalist-source privilege over these documents. Further, after the two emails were produced in the course of Mr. Martin's questioning, they refused the Plaintiffs reasonable request that Mr. Martin be produced for further questioning and required the Plaintiff to bring an application to require him to re-attend. Such conduct merits a costs sanction." [January 16, 2017 Judgment, para. 36]
- "The failure of the respondents (Postmedia, Martin & Canwest) to disclose these highly relevant emails, compounded by the opaque redaction of the emails when they were finally produced, represented a fundamental breach of the respondents' obligations. [Appeal decision, para. 33]
- "...we respectfully disagree with the trail judge's conclusion that the appellant's (Kent's) allegations of fraudulent concealment and the giving of false evidence were unproven. It follows that the trial judge erred in penalizing the appellant for having made these allegations. [Appeal decision, para. 38]
- "Mindful of the seriousness of the conduct and the need to discourage it, we allow the appeal and award the appellant an additional $200,000 in costs." [Appeal decision, para. 42]
No Justification, Fair Comment or Qualified Privilege
- Postmedia and Canwest “failed to establish that they had a sufficient duty to publish the Article for the defence of qualified privilege to apply” [Trial Judgment para. 119]
- The “defamatory factual statements in the Article that were not saved by the defence of justification were also not saved by the defence of responsible journalism” [para. 193]
- The defence of fair comment “would not be available” because “multiple defamatory factual statements” are not saved by justification or responsible journalism [para. 200]
- Some of Martin’s evidence at trial “was less credible” than other witnesses, and Martin’s lack of recall “came across as somewhat convenient.” [para. 244]
- Martin’s evidence about Rod Love’s role in the Article “is not credible, even on his (Martin’s) own evidence.”
[paras. 140, 243]
- Contrary to the Martin Article, Alan Hallman’s suggestion to persuade a rival nominee to withdraw “was not reasonably described as ‘sage advice’” [paras. 165, 166]
- "Although the trial judge found that malice had not been proven, no other motive for the article has been suggested." [Appeal decision, para. 7]
Online Publication, Conduct and Damages
- The National Post, Calgary Herald and other Postmedia and Canwest websites published the Martin Article on the Internet for nearly five years after the 2008 election, despite Postmedia insisting there was “No publication.”
[Trial Judgment paras. 210 to 228]
- the National Post and Calgary Herald “should have provided Kent with an opportunity to respond” to the Martin Article. [para. 270]
- The National Post’s reasons for refusing to publish Kent’s written response “were not reasonable.” [para. 271]
- The Calgary Herald’s decision not to publish Kent’s written response “was likely colored by the misinformation provided by Mr. Martin” that Love and Hallman “had nothing to do with what he wrote.” [para. 272]
- “The Article exaggerated the degree of dissatisfaction with Mr. Kent by repeatedly attributing negative comments about Mr. Kent as coming from multiple knowledgeable sources when the evidence at trial was that Mr. Martin’s information had come from single sources.” [para. 239]
- The Article “made it harder for the Kent Campaign to raise money, which was confirmed by Mr. Doolan, Mr. Kent’s financial agent.” [para. 259]