The Legal Case

Disclaimer:

Statements of law in this article are generally accepted rules but narrowly stated.  Rules of law may be applied or interpreted differently in different circumstances, and exceptions are common.  There are few absolutes, and considerable time will be spent at trial by different counsel advocating for different interpretations of rules.  Similarly, there will be contentious procedural and technical issues argued at some length.  This article identifies some of those issues, without elaboration. 

 The trial will be conducted in The Trial Division of the Court of King’s Bench of Alberta, Calgary courtroom 1402.  The Honourable Madam Justice Lorena K. Harris will be the presiding Justice.

Plaintiff

Caylan Ford is the Plaintiff and is represented by her Counsel, Richard E. Harrison.

Defendants

The Defendants are:

Canadian Broadcasting Corporation - Canada’s national public broadcaster. 

The Broadbent Institute - a Canadian “progressive” (meaning left-leaning) think tank named after Ed Broadbent, the former leader of the NDP.  The Institute publishes Press Progress, in which a column appeared that generated this litigation.   One of the stated objectives of the Institute is to elect “progessive” politicians.                

Toronto Star Newspapers Ltd. - the Company publishes the Toronto Star, the biggest daily newspaper in Canada by circulation. 

Luke Lebrun  - was then editor at Press Progress; 

Stephen Magusiak - was then a  reporter at Press Progress;

Emma McIntosh - was then a reporter with the Toronto Star;

Avnish Nanda - was then a lawyer practicing in Edmonton.

Struck Defendant

Karim Jivraj (Jivraz), originally a Defendant, had his Statement of Defense struck out by the Court. He repeatedly refused court orders to answer questions during examinations for discovery.  He has been held in contempt of court and has not paid  judgments Caylan obtained against him.  He presently has no standing as a litigant.  Jivraj was the originating source of the material that led to this litigation. 

Settled Defendants

The following Defendants have settled out of court:. 

Progress Alberta and Duncan Kinney.  Progress Alberta was at the time a publication promoting left wing causes and Duncan Kinney was the editor.  The claims against these two Defendants were settled by payment of $250,000.

David Khan - was then a Calgary lawyer and the leader of the Alberta Liberal party.  He settled by paying $80,000.

Parties which have settled but whose settlements are subject to non-disclosure agreements are: Jeremy Nolais, Garrett Spelliscy  as representative for and on behalf of The Alberta NDP (the Alberta NDP party does not exist as a legal entity), and Rakhi Pancholi, who was an NDP member of the Alberta legislature at the relevant time.

The Claims

There are different specific claims against each of the Defendants, but Caylan’s claim alleges that each of them published defamatory statements about Caylan, and that each of those statements was false.

Each separate claim for defamation must be proven by Caylan through evidence given in court.  To prove the claim, Caylan must establish:

  • That the statement was about her and made by that Defendant;

  • That the statement was defamatory; and

  • That the statement was published by the Defendant to a third party..

The best definition of defamation in Canadian law comes from the Supreme Court of Canada and is the publication of:

A false statement about a person that lowers their reputation in the eyes of right-thinking members of society, tends to expose them to hatred, contempt, or ridicule, or causes them to be shunned or avoided.

A statement is “published” if it is communicated or made known to others who are third parties; even if the other is only one third party; it does not matter how it is communicated - it may be spoken, written, broadcast, sent by semaphore or morse code, encrypted, or in Hindi.

Although defamation is Caylan’s primary claim she is also advancing ancillary claims against certain defendants and two of those Defendants have now settled. 

Defences Claimed

Each Defendant has filed a separate Statement of Defence and has claimed one or more (often all) of the following possible defences to a defamation claim: 

  • that the statements published were true or justified;

  • that the publication was “fair comment” (requiring the comment be on a matter of public interest, be recognizable as comment, and be based on fact);

  • that the statement was a responsible communication on amatter of public interest (requiring that the statements were in public interest and were communicated responsibly); and

  • That the statement had a qualified privilege to make the statement (requiring the statement was germane and appropriate and be made honestly and in good faith).

Malice defeats the defences of fair comment, qualified privilege, and responsible communication in the public interest and Caylan has claimed malice against certain defendants.

There will be extensive legal arguments concerning each of the available defences.

In a defamation lawsuit, when a statement is found to be defamatory, the onus is on the defendant to prove the claimed defence and the plaintiff will be presumed to have suffered damages, but a failure by the plaintiff to try to mitigate damages can reduce or eliminate damages.

Limitations

Certain Defendants have pleaded that ortions of Caylan’s claim are barred against them because Caylan failed to take particular procedurally-necessary steps within the time allotted.

Remedies

Caylan is claiming the following remedies:

  • Damages against each of the Defendants, jointly and severally, in the amount of $5,000,000 for defamation;

  • Punitive damages against each of the Defendants, jointly and severally, in the further amount of $2,000,000;

  • Damages against Press Progress, CBC and Jivraj, severally, in the amount of $150,000 for intrusion upon Ford’s seclusion;

  • Damages against Jivraj in the amount of $500,000 for intentional infliction of mental suffering;

  • Interest pursuant to the Judgment Interest Act; and

  • Costs on a solicitor and his own client basis.

Trial Duration

This could be the biggest defamation trial in Canadian history. It is set down for hearing over the course of 3.5 months. It involves 9 remaining defendants, and 51 different defamatory publications of the most serious kind. There are 10 expert reports and ~50 witnesses, including a former Premier of Alberta.  

Judgment

After the conclusion of the trial Madam Justice Harris will render her decision by delivering a judgment.  If the trial is of the expected duration, a judgment cannot be expected quickly.