The Court of Appeal ruled in favour of Kent last week. The cost award brought the total damages he’s received to $650,000. He originally sought $1.2 million.
“This should be a chastening moment for any lawyer who is inclined to take a narrow or lax view of established obligations of disclosure,” says Peter Downard, partner at Fasken Martineau DuMoulin LLP and author of The Law of Libel in Canada. Downard was not involved in the case.
“This decision has a sharp edge on it. The Alberta Court of Appeal makes findings of misconduct regarding disclosure obligations that the trial judge in the case was not prepared make,” Downard says. “This is a very important appellate court making vigorous findings, which lawyers can only ignore at their peril.”
The fraudulent concealment concerned two sets of emails between Martin and his source, Kent’s campaign legal adviser Kristine Robidoux.
The respondents provided their affidavit of records in December 2008, but they withheld two sets of email exchanges, which the court stated they had a “positive legal duty” to disclose.
The respondents swore in an affidavit of records and a supplemental affidavit of records that they did not have these emails, which the court found was false.
When they delivered the first set of emails, they were “substantially redacted,” with page numbers deleted and no indication that redactions had been made, according to the decision.
“The failure of the respondents 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. It is no excuse to say that this was done to protect a journalist's source or at the request of the client,” the court stated.
Kent brought the appeal on the grounds that Strekaf failed to recognize “an intentional strategic decision to conceal documents,” misapprehended the evidence of “additional instances of the respondents wrongly withholding producible records,” failed to grant a permanent injunction on the defamatory article and made a “patently unreasonable assessment of responsibility for pre-trial delay,” according to the court’s decision.
Kent had accused the respondents of fraudulent concealment during the original trial, but he was penalized for doing so.
“Obviously, the Court of Appeal agreed with us,” says Michael Bates, partner at Ruttan Bates Barristers and Solicitors in Calgary, who acted for Kent.
“The Court of Appeal not only acknowledged that, yes, it had been proven that the defendants had fraudulently concealed records, but they also agreed with our arguments specifically that there was the giving of false evidence because they had sworn an affidavit of records.”
As to whether the trial judge erred in not granting a permanent injunction on the defamatory article, the Court of Appeal states that as the article has been deemed defamatory, if the respondents were to publish it again, they would be subject to “substantial punitive damages,” which is enough of a deterrent.
The defamatory article was accessible online until late 2012, no apology or retraction was made and Postmedia did not publish a rebuttal offered by Kent, according to the decision.
Kent says that, as a former journalist who began his career at Postmedia’s Calgary Herald, the whole saga is disheartening.
“I have mixed feelings — on the one hand, of course, we're hugely grateful for the Alberta Court of Appeal’s decision,” he says. “But, on the other hand, I have to feel very sad about it, because I think this represents a low point in Canadian journalism.”
Don Martin, then of Postmedia and now host of CTV News Channel’s Power Play, declined to comment. Brent Mescall, a partner at Parlee McLaws LLP in Calgary, who acted for the respondents, also declined to comment.
The court wrote in its decision that the litigation was “protracted and contentious at every stage.” The trial judge had found both parties equally responsible for the delay, which included 39 pretrial applications.
Downard says the fact the three Court of Appeal judges — Frans Slatter, Michelle Crighton and Peter Martin — all wrote as one is significant.
“This case is presented as a decision of the court as a whole, which adds to the weight. It adds to the to the weight of the authority.”