Free Dominion gets Leave to Appeal
Connie posts that FD got leave to appeal the John Doe decision.
It was a lousy, lazy decision which would have given carte blanche for general fishing expeditions regardless of the privacy interests involved. There may well be an argument that the Does names should be disclosed; but reading the earlier decision that argument was not made in this case.
Good for Connie and Mark – go give them some money.
The decision will be posted at FD shortly and I may post further depending on its reasons.
April 27th, 2009 at 12:30 pm
The original ruling left a lot to be desired and a lot of questions that will have to be answered and addressed – CHRT and Judicial independence just being 2. I think were it to have been upheld, the Blogosphere would have been flooded with SLAPP suits.
But Yes – now that Ezra is self-sufficient – our meagre resources should be now funding Mark and Connie’s incredible stance and act of defiance for Freedom of Speech.
BCL will be SO Disappointed.
April 27th, 2009 at 4:28 pm
Jay, I followed the Steyn trial closely, Ezra as well, less so for the Free Dominion case. Can you help give me an idea of what the significance might be?
April 27th, 2009 at 4:46 pm
Decision? Here it is! But who is paying “Lucy’s” fees? That disclosure could be even more surprising :) No Slam Dunk Slapp anymore!
>>>Endorsement:
“This is an application for leave to appeal the order of Kershman J. dated March 23, 2009 ordering the Fournier defendants to file a further and better affidavit of documents so as to disclose the Internet email addresses or IP addresses and associated subscription data in their possession in relation to the “John Does 1-8” defendants. The latter are users of the Fournier’s website who posted what they intended to be anonymous messages, which the plaintiff alleges are defamatory.
I am persuaded by counsel’s submissions that the issue of the existence of a privacy interest in the “anonymous”web postings and in the identity of those making the postings (i.e., the John Doe defendants) as well as the procedural issue of disclosing the identifying information of these individuals in civil proceedings are important public policy issues which are the subject of conflicting jurisprudence.
In this instance, Justice Kershman’s reasons suggest that disclosure of this identifying information should follow necessarily or automatically from the commencement of the action, as contemplated by the Rules of Civil Procedure. In contrast, Wilkins J. in Irwin Toy Ltd. v. Doe (2000), 12 CPC (5th) 103 advocated a balancing of the privacy rights involved and to the same effect is the decision of von Finkelstein J. in BMG Canada Inc. v. John Doe [2004] 3 FCR 241.
In view of the important public policy and procedural issues disclosed by this case and these issues and the jurisprudence which, to an extent, is in conflict, I am of the opinion that the criteria for granting leave to appeal under Rule 62.02 (4)(a) is met. Leave to appeal to the Divisional Court from Kershman J’s order herein is granted. Costs of the leave application reserved to the Court hearing the appeal.
Regional Senior Justice C. Hachland
April 23, 2009
April 27th, 2009 at 7:22 pm
Many thanks LS for the actual decision. “Leave to appeal is granted.”
I take it that would mean that an earlier order to force Free Dominion to reveal the e-mails and IP addresses of a number of annonymous posters can be appealed … to an actual court of law?
“No slam dunk slapp anymore!”
Well,this sounds like a victory, certainly. But could you indulge me as to how you might view the significance? Does it mean the CHR council’s unlimmited authority is at last coming into question?
April 27th, 2009 at 8:34 pm
Nicholas, actually this is only tangentially related to the CHRC. Their utensil Richard Warman is suing Free Dominion for alleged defamation. It is a very broad claim and not only is he suing FD and its proprietors Mark and Connie, he is also attempting to claim damages against anonymous commentators on the FD forum. Warman named these commentors as “John Does” in his Statement of Claim and went to Court on an application to force Connie and Mark to disclose information going to the Doe’s identity. He won on his application but FD has been granted leave to appeal that decision,
You can read about it here.
The overall tactic used by Warman, the Jackal and, unbelievably, a lawyer who once acted for the Commission in the Lemire matter is to file defamation claims of doubtful merit and then tie the bloggers up in litigation. The most notorious of these actions is Warman v. Kate (SDA), Kathy (Five Feet of Fury), Ezra, FD and the National Post. It was filed nearly a year ago under the Summary proceedings rules in Ontario and is now stalled as Warman (and the CHRC) are, apparently, stonewalling the document discovery process.
Some people consider these SLAPP suits – I don’t. In my view these are not designed to stifle debate, although they have that effect, rather they are designed to harass and intimidate critics of the Human Rights Chekists in Canada and, if successful, are intended to bankrupt those critics. They are a disgraceful form of legal bullying by people who are simply unable to marshal actual arguments in favour of their actions.
However, the good news is that any action for defamation opens the plaintiff up to full discovery and cross examination. While Warman may be able to claim memory loss 150 something times before the Human Rights Tribunal with little ill effect, I suspect he will find that tactic will shred what little is left of his reputation if he tries it in an actual Court.
And the best part is that the defendants, because of Warman’s long and mucky association with the CHRC, are almost certainly entitled to trawl through the files, server logs and hard drives of the CHRC. Which, given the grotesque mismanagement of the “Hate Speech Unit” of the CHRC, is not, I suspect, a prospect which fills Ms. Lynch with delight.
Plus, and this is an added bonus, there is a good possibility that the files and records of Warman’s current employer, the Department of National Defence, may also be open to Discovery. If for no other reason than to determine how Warman manages to dovetail his “Human Rights” activities and litigation with what is, I understand, a full time job at the DOD.
Lots of fun.
April 28th, 2009 at 4:47 am
I was wondering how Mr. Warman managed to square all the amateur sleuthing time with 9-to-5 job responsibilities as well.
Incidentally, it’s DND… DoD is the defence establishment run by our southern neighbours.
April 28th, 2009 at 7:35 am
I’m encouraged that the judge allowing this leave to appeal understands, and does not like, the conflicted precedent the Motion judgement represented to already established precedents favoring reasonable expectations of privacy and proper process.
Jay, Re: Discovery. It was my understanding that this FD claim was pegged at under $50K so that the claimant could take advantage of the truncated Ontario civil process for smaller claims which precludes full discovery processes prior to trial…then tried to do an end run around that limitation with this motion to expand discovery.
April 28th, 2009 at 8:12 am
WL Mac Red
That was my understanding as well.
April 28th, 2009 at 8:22 am
WL and BCL, I think you will find that under the simplified procedure in Ontario (rule 76, oral discovery is precluded but document discovery is allowed, indeed required.
(En passantI note that Lucy may have used R 76 improperly in any event as his claim for relief is not limited to money.)
April 28th, 2009 at 9:05 am
Jay – I agree that Warman is opening himself up to a whole bunch of trouble. And I look forward to the day that he is finally discredited. But I don’t think the Lucy suit is merely vexatious on his part. My understanding is that the bloggers in question claimed he made those posts without very good evidence. Seems to me he has every right to sue them. I dearly hope he loses but that doesn’t change the fact that he’s not doing anything illegal or even unethical.
April 28th, 2009 at 9:47 am
Craig, anyone can sue anyone for anything. However, I think you need to be careful when you characterize the evidence here. The defendants relied upon statements made and accepted by a CHRC certified expert witness. And, so far as I can make out, those statements were not challenged before the Tribunal. Now, those statements may have been wrong, but in reporting the proceedings before the Tribunal it is not clear that the accused bloggers do not have a variety of very sound defences available to them. Plus, at this point, the apparent failure of Lucy to produce documents and the apparent refusal of the CHRC to produce documents may kill the action on procedural grounds. Finally, the SCC has been extending the scope of the protections available to journalists in defamation actions citing the over-riding importance of the Charter guarantee of free expression.
Certainly, in bringing the suit, Lucy is not doing anything illegal. The ethics are, frankly, open to question in so far as there may be a motive beyond protecting Lucy’s own reputation. Now, as to Lucy’s conduct as a CHRC investigator and complainant, well, we have the Tribunal’s own words on that don’t we,
“The evidence in this case of his participation on Internet sites similar to the Northern Alliance site is both disappointing and disturbing. It diminishes his credibility.”
April 28th, 2009 at 10:14 am
Yup Jay
“The evidence in this case of his participation on Internet sites similar to the Northern Alliance site is both disappointing and disturbing. It diminishes his credibility.”
“Plus, and this is an added bonus, there is a good possibility that the files and records of Warman’s current employer, the Department of National Defence, may also be open to Discovery. If for no other reason than to determine how Warman manages to dovetail his “Human Rights” activities and litigation with what is, I understand, a full time job at the DOD.
Lots of fun.”
It goes beyond that as of course “Lucy” was a previous investigator with the CHRC and appears to have had a very cosey relationship with them as the cases progressed and even as/after he moved over to DND.
It might be inferred that “Jadewarr” and “Mr. Serenity” et al., of the CHRC and “Lucy” of DND were in this together (the lemire transcripts suggest something like that) thus a request for all
E-Mails between the principles would not be unreasonable.
Now since all 13.1 complaints against “Lucy” were not even entertained because “Jadewarr” was in fact the Intake officer – well the conspiracy rumours abound :)
Given the inordinate amount of time casework and giving evidence must have been involved, even things like “Leave Records”/previous pay records/tax records going back to 1991 would be useful in determining who knew what, when and what part did the very Senior Management in CHRC and DND play.
Kinda leads to those various CC sections I once quoted.
April 28th, 2009 at 10:37 am
“under the simplified procedure in Ontario (rule 76, oral discovery is precluded but document discovery is allowed, indeed required.”
touché
April 28th, 2009 at 11:05 am
Excellent. Thanks all for your comments. You’re right, Jay. This is very encouraging, and great fun to boot!
April 28th, 2009 at 11:12 am
“The defendants relied upon statements made and accepted by a CHRC certified expert witness. And, so far as I can make out, those statements were not challenged before the Tribunal.”
They were. Bernard Klatt was found to be a very poor witness by the tribunal before any of the subsequent work by Buckets, myself, and etc. He didn’t even apparently know of the existance of “dynamic IPs”. That’s in the transcripts. Their was also Klatt’s close relationship with Lemire (I think it was) and the other defendents which rendered his testimony suspect. All in the transcripts.
Also, Connie Fournier has written of your remarks above:
The problem is that he is suing us under “Simplified Procedure”. The idea is to shorten the process, and there is no discovery, only an obligation to disclose relevant information.
The irritating part is that Warman and Kinsella are benefitting from the Simplified Procedure rules that protect them from discovery, but legal loopholes are still allowing them to drag this on forever, so we are not benefitting from the supposed shortened process.
April 28th, 2009 at 11:26 am
Care to provide citations, BCL…and be careful on dates. And, interesting as Buckets’ work is, it post dates the postings complained of.
April 28th, 2009 at 12:52 pm
Jay –
I am in no way defending Warman. I am just saying that the bloggers in question should have been more circumspect. For example, I don’t recall you making a similar claim; and Kay retracted his double-quick. As well, my recollection is that they claimed that Warman was Lucy rather than reporting that Klatt said he was.
I hope Warman has his credibility shredded after this; but I still can’t bring myself to see this as an infringement of the bloggers’ free speech rights (as Kathy and Ezra repeatedly claim0.
And btw, does anyone know what is happening with Warman’s suit against the 5?
BCL - good point re Kinsella and the Jackal.
April 28th, 2009 at 1:27 pm
[ quote: bigcitylib
“.... Their was also Klatt’s close relationship with Lemire (I think it was) and the other defendents which rendered his testimony suspect. All in the transcripts.” /]
Be careful there BCL - when you dig up close relationships – that bites both ways. There are the partially redacted Golderg emails showing Goldberg as Chief Policy Advisor bringing in Dr Karen Mock as an expert witness while Mock was formerly an exec with BB and had some ties to the Toronto ARA and BB becoming an intervenor in the Lemire case, essentially to assist the CHRc in closing down any questions of their relationships with external parties and of their clandestine operations.
And as The LS from SK commented: [” thus a request for all E-Mails between the principles would not be unreasonable.” / ]
I believe there are a few other emails already out there that also address those Close Relationship issues.
April 28th, 2009 at 3:38 pm
If I am recalling this correctly, Richard Warman is suing FD for defamation of character, but it is already on record that his methods were charaterized by a “Tribunal” as “disappointing and disturbing”. This same Warman is well known to have filed a significant number of CHR complaints for various groups, leaving himself as the personal beneficiary of the action. He also worked aggressively to block the identification of the posters (and who knows who the identity of the poster may have been) in the Lemire case, until it was discovered that the information was not recoverable. He is known to have promoted a tactic which he termed “maximum disruption” to various political enemies and causes that he deemed were not worth being heard. And now he presents the court with a limited filing case intended to be a “fast track filing” but which in fact is consuming a tremendous amount of time and money, for the defendents and the court itself.
It strikes me that this behavior would not be lost on the court, and attempts of this type to manipulate the legal system would not be received kindly by the presiding justice.
(None of these statements would get anyone in trouble down here in the US, but just redact them out if they are troublesome for you all up in Canada).
April 29th, 2009 at 5:56 am
Yes Four Horses – and other close relationships via Harvey are yet to be revealed.
I think the most important issue for FD to address will be “Lucy’s” actual employer – be it DND or CSIS and what 13.1 activities through the CHRC continued after his departure.
CSIS and DND may end up having to answer rather embarrassing questions about their “domestic spying” role
April 29th, 2009 at 10:48 am
Craig – you said “As well, my recollection is that they claimed that Warman was Lucy rather than reporting that Klatt said he was’.
I wish Lemire was here as that is not my recollection. Steyn repeated/continually refers to him as Lucy Choo Choo…you got some explaining to do” :)
I thought Kay and others retracted their comments related to the Cools post as it could not at that time definitely be linked to said serial suer. All this pre-dates the CHRT comments of Chairman Lustig.
April 29th, 2009 at 4:33 pm
LS from SK
It was Barb Kulaszka who established the identity of the screen name “Lucy” – February 1st, 2007 when she had Warman on the stand. Seven days later, Bernard Klatt, told the Tribunal that he concluded that Warman was the author of the Cools post based on his investigation of the data.
The ‘Lucy Choo Choo’ comes from Steyn’s play on Ricky Ricardo’s famous words.