Day 38
Note: I am a poor note-taker and these summaries will contain errors and omissions which will reflect my limitations. My intention is to report on the facts as accurately as possible although a subconscious bias may creep in. I can only provide glimpses into what I see as relevant and interesting events. My goal is to capture the essence of the day’s events rather than be comprehensive.
Read the reference documents: The Legal Case and Events Leading to Trial to obtain an understanding of the case and its history. Names and terms are abbreviated and defined in Glossary.
The Toronto Star begins its defence today.
Opening Statement of Ms. Cooper (Counsel for the Toronto Star and Emma McIntosh)
Ms. Cooper delivered her opening statement, identifying the defences upon which the Toronto Star and Ms. McIntosh rely in defending this action.
The Toronto Star published news about the resignation of a high‑profile candidate.
In January 2019, the Toronto Star received excerpts of Facebook messages from Jivraj.
The Toronto Star decided not to pursue a story based on those messages at that time.
Press Progress published its article on Caylan on March 18.
The Defendants rely on the following defences: justification, responsible communication on a matter of public interest, and fair comment.
Justification: the published stories were substantially true; the defence need only prove substantial truth.
Ms. Cooper stated that Caylan made statements reflecting white supremacist or white nationalist views.
Caylan acknowledged that the words were her words.
Responsible communication: the Toronto Star acted responsibly in reporting on a matter of public interest.
Candidates for public office are subjects of public interest.
The Toronto Star acted responsibly in reporting on Caylan’s resignation.
The articles set out both sides of the story.
Fair comment: comment may include deductions, inferences, conclusions, judgments, remarks, or observations.
Terms such as bigoted, racist, and white supremacist are comments rather than statements of fact.
The statements made by the Toronto Star were comment on a matter of public interest.
Comment must be based on fact, and the articles set out a significant factual basis.
The Toronto Star will call seven witnesses.
A brief description of each witness’s evidence was provided.
The Toronto Star published 13 stories that are the subject of this litigation.
The Toronto Star only reported after Caylan had resigned.
The Plaintiff’s claim for joint and several damages is not justified.
Ms. McIntosh acted independently in publishing some material about Caylan.
The Toronto Star will ask the Court to dismiss all claims against it and Ms. McIntosh.
Ms. McIntosh pleads that she was not given proper defamation notice in a timely manner.
Ms. McIntosh’s statements were comment and expressed opinions that any person could reach based on the facts.
Her statements were tweets made in public discourse about a star candidate.
Her statements do not need to be true to qualify as fair comment.
Ms. McIntosh also relies on justification.
She is not liable for damages because she did not cause Caylan’s resignation.
There is no legal basis for punitive damages on a joint and several basis.
Ms. McIntosh made tweets from her personal computer, reflecting her personal opinion.
She listened to the Danielle Smith interview and was frustrated by Smith’s failure to press Caylan on issues.
Direct Examination of Kevin Maimann (by Ms. Cooper)
Mr. Maimann is now a reporter for the CBC. In 2019, he was a journalist for Star Metro Edmonton, working in the Edmonton newsroom covering politics and other matters. His evidence:
Star Edmonton was a local news bureau owned by the Toronto Star.
Alex Boyd was the managing editor in 2019; Kieran Leavitt was the Alberta legislature reporter.
Ms. McIntosh was a reporter for Star Calgary.
Mr. Maimann first learned of issues relating to Caylan on the morning of March 19.
He saw the Press Progress article and learned of Caylan’s resignation.
He saw articles and statements about Caylan published by Canadian news outlets and by the Council of Canadian Muslims.
He was assigned to look into the story and began reaching out to contacts.
He spoke with Janice Harrington and obtained audio files from Jason Kenney, Kathleen Ganley, and Naheed Nenshi.
He learned that Kieran Leavitt had communicated with Jivraj and had his contact information.
Mr. Leavitt provided Jivraj’s contact information.
Mr. Maimann called Jivraj and recorded the conversation. In that conversation, Jivraj:
Immediately demanded anonymity;
Said he was concerned about retaliation;
Said the messages between him and Caylan were private;
Said he and Caylan used to be friends but had a falling out;
Said the Mountainview Constituency Association had ostracized him because he had access to “unsavoury things”;
Said Hlady was disqualified from the nomination contest because he could have beaten Caylan;
Alleged that the UCP “stacked the system,” “rigged the nomination,” disqualified the only serious competitor, and “quelled dissenters”;
Suggested that Caylan was involved with “stupid, alt-right, neo-Nazi shit”;
Said Jason Kenney flew in a star candidate [Caylan] from Toronto;
Stated that he did not like Caylan and that she was ruthless and had made up lies about him;
Said he had introduced Caylan to Jason Kenney;
Gave Mr. Maimann Hlady’s phone number.
The following quote from the taped conversation is notable:
Mr. Maimann: “… do you have any involvement with the [UCP] party?”
Jivraj: “Umm no, no”.
[This is noteworthy because Mr. Maimann later quoted Press Progress describing Jivraj as “a Muslim conservative with ties to the UCP .]
Mr. Maimann spoke with Mark Hlady twice.
Hlady made extensive complaints about Jason Kenney, Alan Hallman, the UCP, the Mountainview riding, its Constituency Association, and Janice Harrington.
Hlady requested that his name not be associated with Jivraj.
He claimed he had been unfairly ousted as a nomination candidate because the party wanted Caylan.
[In fact, Hlady had been disqualified due to inappropriate sexual conduct, and his support in the riding was under 3%.]
Mr. Maimann contacted the UCP and spoke with Janice Harrington.
Ms. Harrington said Hlady misunderstood the rules, that the nomination was run fairly, and that Caylan had the same opportunities as anyone else.
The first Toronto Star article about Caylan was written by Mr. Maimann and published shortly after 9:00 a.m. on March 19.
There were four Toronto Star articles about Caylan published on March 19.
The articles featured:
Headline: “Calgary UCP candidate resigns after comments about white nationalism surface online”;
First paragraph stated that Caylan resigned “after comments promoting racist white supremacist talking points”;
Repetition of much of the Press Progress March 18 article;
Described Jivraj as “a Muslim conservative with ties to the UCP”;
Quoted Caylan saying the comments were “distortions and are not reflective of my views”;
Quoted Caylan saying “I strongly denounce extremism, violence and stand with marginalized communities everywhere”;
Quoted Hlady’s statement that Kenney had recruited Caylan and that “They couldn’t beat me … They had to disqualify me so they could have … Caylan Ford become the candidate”;
Quoted NDP candidate Ganley;
Remain online today.
Mr. Maimann believed his characterization of Caylan as a racist was accurate.
He never saw the full Facebook Messenger conversation.
The Toronto Star published four stories about Caylan that day, each referring to her “promoting racist white supremacist talking points.”
Mr. Maimann attempted to contact Caylan:
He called and spoke with her husband;
He emailed her;
Caylan responded, referring him to her resignation statement and inviting him to email further questions;
He did not send any questions;
He emailed again asking if she would chat;
Caylan replied that she was not able to speak that day but would be happy to talk after Wednesday;
Mr. Maimann never followed up.
He wrote another article on March 22, again stating that Caylan “promoted racist white supremacist talking points.”
On March 26, he wrote another article stating that Caylan resigned after “messages she sent promoting racist white supremacist talking points were made public,” and quoting third parties referring to “racist,” “xenophobic,” and “homophobic” comments.
Another article referred to Caylan as a “candidate who stepped down for expressing white nationalist and Islamophobic views.”
Mr. Maimann testified that he believed Caylan had been unfairly promoted as a nomination candidate and then resigned.
Cross‑Examination of Mr. Maimann (by Mr. Harrison)
Mr. Maimann interpreted Caylan’s quoted statements as racist and white supremacist.
He did not ask to see the actual messages and never saw them.
He did not know the context of the messages.
He did not publish the statements immediately preceding or following the quotes.
He omitted portions of the statements.
He did not question Jivraj about being ostracized by the party.
He did not question the party about Jivraj’s claim.
He never corroborated the messages Jivraj provided.
He never investigated the relationship between Caylan and Jivraj or the reasons for their falling out.
He never asked for proof of the allegation that Jason Kenney recruited Caylan and flew her into Calgary.
He assumed Jivraj still had ties to the UCP despite Jivraj saying he had none.
He never asked Jivraj why he had no involvement with the party.
He never asked Hlady why he did not want to be associated with Jivraj.
He did not know that Jivraj had authored the fraudulent resident letter.
The Toronto Star had a Torstar Journalism Standards Guide.
It states: “We do not provide anonymity to those who attack individuals or organizations … the unattributed cheap shot. People under attack in our organization have a right to know their accusers.”
It also states that journalists “must always reveal the sources’ identity to editors and provide a compelling reason for why the source will not be named in news reports.”
Alex Boyd granted Jivraj confidentiality.
Mr. Maimann did not recall why.
His article stated that Caylan “responded to an email and referred to her Facebook statement,” but did not mention that she invited him to email further questions.
The Guide cautions journalists: “We should be wary of sources with axes to grind and always ensure that information from sources whose motives are in question is based in fact and can be verified independently by the journalist.”
Mr. Maimann’s sources—Jivraj and Hlady—both had obvious axes to grind.
His March 19 articles quoted Hlady extensively.
Hlady was a discredited candidate with a motive.
Everything Hlady told him was false.
Mr. Maimann did not even try to independently verify what Hlady told him.
He acknowledged that he had not conformed to the standards in the Guide.
Mr. Maimann’s testimony concluded and he was excused.
Comment
The Toronto Star was the first outlet to assert as a fact that Caylan made racist comments. The CBC had already characterized Caylan as white supremacist, but the Toronto Star stepped up the level of defamation by adding the term racist.
Mr. Maimann’s primary sources—Jivraj and Hlady—were each sources with axes to grind, and were each both dishonest and discredited, yet he made no meaningful effort to investigate them or their motives or to verify their claims. His failure to seek balance, context, or corroboration, combined with his disregard for the Torstar Journalism Standards Guide, reflects poorly on the quality of his journalism. So does his portrayal of Caylan as a racist.