Legal Feeds Blog
A former senior Conservative Senate staffer who reposted a defamatory statement about Ottawa human rights lawyer Richard Warman has been ordered to pay $10,000 in damages.
In a decision issued by the Ontario Superior Court July 30, Justice David Corbett ordered Michael Veck to pay Warman the money after finding Veck had no legal defence for posting an article about him that was “obviously defamatory.”
However, on July 31, a bankruptcy trustee for Veck wrote to Warman’s lawyer and the court providing a notice of stay of proceedings, indicating all legal actions were stayed.
“I’ve asked the trustee to immediately withdraw the notice of stay of proceedings and am reviewing the information provided to determine my next steps,” Warman told Legal Feeds via e-mail Tuesday.
Warman added he intends to pursue the $10,000 libel judgment and costs “to the fullest extent possible.”
The case arises in the context of a debate over the relationship between laws against hate speech and the principles of freedom of speech. Warman is an advocate against far-right and neo-Nazi hate speech.
In March 2009, Veck republished an article first published by the National Post and written by former columnist Jonathan Kay about Warman that was untrue. Warman says the article was posted to a Stanford University web site forum catering to leaders in politics, academia, the military, and journalism.
The original article by the National Post was retracted after Warman issued a libel notice.
Both Kay and the newspaper subsequently settled a libel action against them. Veck republished the article more than a year after the newspaper removed it from its web site.
In his decision, Corbett wrote:
“I find the impugned article posted by Mr. Veck is defamatory of Mr. Warman. I find that Mr. Veck has no legal defence for publishing this defamatory article. . . .”
Corbett went on to say a message Veck posted as a retraction and apology on the same web site “did not cure the damage caused by the defamatory article and should not serve to reduce damages awarded to Mr. Warman.”
Veck’s “apology” posted to the web site was as follows:
“I previously published material here that attacked the personal and professional reputations of Mr. Richard Warman. Mr. Richard Warman states that these allegations were false, and so I wish to retract them and apologize.”
Mr. Veck is not assisted in these defences by the fact that a substantial portion of his article was a repetition of Mr. Kay’s article in the National Post. A defendant cannot escape liability by publishing statements originally published by someone else. Put prosaically by Lord Denning fifty years ago:
“Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided in its circulation. He must answer for it just as if he had started it himself.”
In an e-mail exchange with Legal Feeds Veck confirmed he no longer works in Canadian politics, but declined to comment further on the matter.
|Glenn J. Niemela is seeking an injunction forcing Google to remove 'defamatory snippets' he claims show up in searches about him.|
Niemela filed a statement of claim against Google Inc. in B.C. Supreme Court on Nov. 26. It seeks injunctions forcing the search engine to remove the “defamatory snippets,” which are referred to in the claim as “false, malicious, and defamatory,” as well as seeks damages for libel and slander.
The statement of claim also wants Google to publish a “full and complete retraction of the expressions complained of” as well as a declaration that the “snippets” are defamatory.
The allegations have not been proven in court.
Niemela says Google recently filed an application response opposing the relief sought by Niemela on Oct. 30 and a hearing is set for Dec. 15 for an interim injunction, which Google is also opposing.
Google had been refusing to remove the allegedly defamatory material from its search engine results despite his requests, through a notice of application served to the company on Oct. 6 and followed by Niemela’s personal requests via e-mail on Oct. 27 and 31. Google filed an application response opposing the relief sought by Niemela on Oct. 30.
But recently Niemela says he secured a victory.
“They have, two or three days ago, removed all the references,” Niemela tells Legal Feeds. “That was done voluntarily by Google.”
He does note one defamatory reference still comes up on his iPhone search, but not on his desktop.
Despite Google’s steps to remove the content, Niemela says he will not be dropping the lawsuit. He secured a trial date last week, set for Jan. 6, 2016. He exptects it will last five days.
Google hasn’t filed a defence yet, but Niemela notes the company still has a period of time left to file it.
The defamatory comments are believed to originate from a former client, who allegedly harassed Niemela, according to the statement of claim.
Niemela filed a separate notice of civil claim in August against his former client, which was amended on Oct. 23. He refused to discuss that aspect of the proceedings.
A spokeswoman for Google said it is not able to provide a comment on the proceedings at this time.
She did refer to online advice and resources the company offers on how to get content removed, as well as the general advice provided on how to manage your reputation online.
Update Dec. 15: website reference removed.
The Ontario Superior Court has ordered former physics professor Denis Rancourt to pay a cost award of $444,895 to law professor Joanne St. Lewis.
This comes after a jury found Rancourt guilty of defaming St. Lewis in two blog posts. The jury had awarded damages of $350,000, St. Lewis asked the court to award her costs on a substantial indemnity scale of $552,706.56 for fees and $55,305.97 for disbursements plus HST. Rancourt submitted he should pay nothing.
“The plaintiff was successful. I fail to see any legitimate reason why she should not be entitled to damages,” wrote Justice Michel Charbonneau. “The only question to be determined is whether she should be partially or substantially indemnified.”
Charbonneau scolded Rancourt throughout the ruling, accusing him of unnecessarily stretching-out the trial.
“Contrary to what the defendant alleges, it is the defendant who needlessly lengthened the trial by disputing every claim of the plaintiff and pleading a number of untenable defences and then abandoning them in the course of the trial,” he wrote. “His submissions on costs are a continued illustration of his unreasonable tactics.”
Rancourt, who was self-represented, says that he was simply trying to defend himself.
“What the other side has been arguing a lot is that all of these motions are evidence that this man’s been abusing the system and so on,” he says. “But how you can say that just because the person is trying to defend himself through reasonable motions, how that can become this constant barrage of argument that I’m guilty?”
The case stems from St. Lewis claim that Rancourt damaged her reputation by using a pejorative term in a 2011 blog.
The post, which has now been removed from Rancourt’s UofOWatch blog, was titled: “Did Professor Joanne St. Lewis act as Allan Rock’s house negro?” In it Rancourt took exception to St. Lewis’ criticism of a 2008 student-commissioned report that found the University of Ottawa guilty of systemic racism. At the time, Rock was serving as school president.
Richard Dearden, St. Lewis’ lawyer and a senior litigation partner at Gowlings Lafleur Henderson LLP, says Rancourt’s motions made the trial go on longer than it needed to.
“Mr. Rancourt knows his way around the courts quite well,” he says. “As you see from the cost endorsement, there’s a tremendous amount of work required to get this to a jury verdict.
Rancourt also attempted to argue that the judge should not award substantial costs to the plaintiff because her success was divided. Charbonneau disagreed.
“I do not accept that any of the points raised by the defendant support a finding that success was divided,” he wrote. “The defendant’s submissions on this issue border on the irrational. The substantial success of the plaintiff is clearly demonstrated by the large amount of damages awarded, the finding by the jury that the defendant acted maliciously and the total injunctive relief being granted.”
Charbonneau cancelled a contempt hearing that had been scheduled relating to Rancourt’s online postings throughout the trial and interviews with the media.
“At one point I was asked by one of the defendant’s close colleagues whether he could publish certain statements made in court in the absence of the jury,” he wrote. “I told him that it was unlawful to publish anything said in the absence of the jury. Although this is the law in criminal proceedings it would appear this is not necessarily the case in civil proceedings.”
Rancourt says that he will not be able to pay the substantial costs awarded against him and the reason why he’s self-represented is because he couldn’t afford a lawyer.
He has filed an appeal on the jury verdict, the rulings made by Charbonneau, and the costs award.
“This has been weighing on Professor St. Louis for over three years and its gone to the Court of Appeal, so it still weighs on her,” says Dearden. “We just want this over. The jury verdict was pretty compelling.”
Rancourt however is hoping to be able to find a lawyer so that he can be represented during the appeal.
|Conrad Black and his wife Barbara Amiel leave federal court in Chicago, June 24, 2011. (Photo: John Gress/Reuters)|
But an agreement to settle the defamation suits and other court actions, reached after the Supreme Court heard the case in March 2011, could render the ruling in Breeden v. Black moot.
Black has sought more than $2.3 billion in damages in his libel suits. The defendants are Richard Breeden, a former head of the U.S. Securities and Exchange Commission who spearheaded a 2004 Hollinger committee report on Black’s practices, along with three committee members, and other former Hollinger directors.
The report said Black, a former Canadian citizen who is now a member of the British House of Lords, looted publisher Hollinger International of hundreds of millions of dollars. Black denies the charge.
Hollinger used to own Britain’s Daily Telegraph, the Jerusalem Post, the Chicago Sun-Times and many other papers.
In a statement on Wednesday, Daifallah said Black and the defendants had entered into a memorandum of understanding to resolve these legal actions as well as others in the United States.
“The settlement remains subject to court approvals in Ontario and Delaware and, once approved, disposes of these actions notwithstanding the Supreme Court’s favorable decision today,” Daifallah said. No money has yet been exchanged.
Earlier, he characterized the agreement as enforceable and as one that would not be affected by the Supreme Court decision.
The defendants say their comments were justified, and they were doing what was required under U.S. securities law.
The Supreme Court dismissed arguments by the defendants that Black was a “libel tourist” who shopped for the easiest jurisdiction to win his case. Black had filed a number of libel lawsuits not connected to this case.
Black’s lawyers argued his reputation was more tied to Ontario than anywhere else, even though Black gave up Canadian citizenship. Black is now a British citizen.
Lawyer Peter Burnet of Ottawa’s Jones Horwitz Bowles Burnet will be making arguments on behalf of appellant John Baglow before the appeal court this week in Baglow v. Smith. Baglow is objecting to Superior Court Justice Peter Annis’ ruling last August granting summary judgment in favour of defendants Rogers Smith and Connie and Mark Fournier.
The case deals with comments on the web site FreeDominion calling Baglow, who has his own progressive political blog called Dawg’s Blawg, “one of the Taliban’s more vocal supporters.” In the ruling, Annis noted Baglow had argued in favour of repatriating Omar Khadr to Canada from Guantanamo Bay, Cuba, and was an opponent of Canada’s military engagement in Afghanistan. In 2010, following Baglow’s calls for a federal election to oust the Conservative government, Smith made the comments about the Taliban on FreeDominon.
In his ruling, Annis considered whether the comment was a statement of fact or opinion. In ruling it was opinion, Annis focused on the ongoing back-and-forth nature of blog discussions. “In its pith and substance, when the defendant Smith’s statement is considered in its context of an ongoing thread on an Internet blog, it is properly understood as a comment about the impact of the application of the plaintiff’s views in terms of supporting the Taliban,” he wrote.
“Accordingly, the alleged defamatory attribution of the plaintiff (supporter of the Taliban) is the comment portion of the defendant Smith’s unstated factual premise that the plaintiff’s views on due process have the effect of supporting the Taliban.”
At the same time, Annis ruled the comments wouldn’t impugn Baglow’s reputation. “Instead, I conclude that the opinion expressed by the defendant lies at the heart of the debate between the factions represented by the parties and whether the underlying facts are true or not, readers following the blog would understand the comment as being one side of the debate.”
The decision raised eyebrows last year in part for what critics said was its distinction between allegedly libellous comments in traditional forums versus online platforms like blogs. However, Annis did later show some leniency to Baglow by reducing the costs award against him given the public interest in raising a novel point of law. The appeal court is to hear the matter tomorrow.
|Justice Rosalie Abella ruled that hyperlinks on web sites are more 'references' than 'publications.' Photo: Heather Gardiner|
“A hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker,” says the decision.
While dissenters Chief Justice Beverly McLachlin and Morris Fish generally agree with Abella’s ruling, they differ on the heart of the matter saying: “However, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.”
The case involves Wayne Crookes, the president and sole shareholder of West Coast Title Search Ltd., who brought a series of lawsuits against those he claimed were responsible for a “smear campaign” against him and other members of the Green Party of Canada in articles published on a number of web sites in 2006.
Jon Newton has a B.C.-based web site containing commentary about various issues, including free speech and the Internet. One of the articles he posted on it was called “Free Speech in Canada,” which contained hyperlinks to other web sites, which in turn contained information about Crookes.
At both the trial and appellate level, the courts ruled the hyperlinks did not constitute publication of the impugned content.
Abella notes in her analysis that hyperlinks are essentially references. “Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content,” she writes.
She goes on to point out that: “The Internet cannot . . . provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.”
In the end, Abella says this ruling does not necessarily apply to all types of links on the Internet, particularly as it is constanlty changing.
“The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.”
Daboll wanted his costs paid on a full indemnity basis, asking Superior Court Justice Richard Lococo to award him $57,000, arguing that DeMarco unduly lengthened the trial.
The Niagara-area lawyer had offered to settle for $10,000, plus a promise that DeMarco would remove the postings about him and stop complaining about him to the Law Society of Upper Canada. That came two weeks before the trial, which eventually went for nine days in September 2010, having been scheduled for just four.
“I agree with Mr. Daboll that Mr. DeMarco’s conduct of the trial caused it to be unnecessarily prolonged,” Lococo wrote in the May 9 ruling. But he found that wasn’t enough for full indemnification, putting the inefficiency in part down to his lack of legal representation.
For his part, DeMarco offered to pay nominal costs, arguing that Daboll had increased costs by filing unnecessary documents and alleging that the lawyer had come to court with “unclean hands.” — a reference to Daboll’s past law society disciplinary problems.
Daboll represented DeMarco in matrimonial litigation in 2003 with his own estranged spouse, but the relationship quickly deteriorated. A lengthy assessment process initially reduced the account that was worth less than $4,000 before a review by the court reversed the decision and made a costs award against DeMarco.
In November 2008, Daboll finally collected on that judgment with a writ of execution and seizure satisfied by the proceeds from a property sold by DeMarco.
That’s when ads about Daboll began appearing in local newspapers under the title “Lawyer Crime Ontario.” The same ads appeared on dirtylawyer.com and lawsocietiesreform.com, two web sites run by DeMarco. In his original decision, Lococo said DeMarco went too far by wrongly implying that Daboll was still on probation for a harassment conviction from the law society, and found his ads were malicious.
“Individual fragments of the advertisement arguably had some basis in fact but they were expressed and juxtaposed in a manner that I find to be inconsistent with the truth,” Lococo wrote.
Subscribe to Legal Feeds
- Gabrielle Giroday
- Mallory Hendry
- Alex Robinson
- Patricia Cancilla
- Gail J. Cohen
- David Dias
- Yamri Taddese
- Jennifer Brown
- Karen Lorimer