Non-Partisan Association & Kirk LaPointe playing with defamation case fire that may burn them badly

Defamation lawyer Bryan Baynham is representing Vision Vancouver in lawsuit

Bill Tieleman's The Tyee column 

Tuesday November 11, 2014

By Bill Tieleman 

“Your reputation is everything. “If somebody libels you and defames you … if you have the ability to do it, you have to take them on.”

        - former Newfoundland Premier Danny Williams on his defamation lawsuit against the St. John's Telegram, launched last month 

Just how far can a politician go in attacking the integrity, character and morality of their opponents before it becomes a legal and not a political matter?

Vancouver may soon find out, because the Non-Partisan Association and mayoralty candidate Kirk LaPointe have not just crossed that line but sprinted over it in a reckless way they may deeply regret.

The recent filing of a defamation lawsuit by Vision Vancouver Mayor Gregor Robertson and Councillor Geoff Meggs against the NPA and LaPointe has been described by some as simply "politics" and par for the course in an election.

But there is a difference between criticizing the policies, approach and competence of your opponents and saying that they are "corrupt" - as the NPA has flagrantly alleged and stated as fact.

The details have been well reported elsewhere but revolve around contributions to Vision Vancouver by the Canadian Union of Public Employees Local 1004 and Vision's ongoing opposition to the contracting out of public services - hardly a surprise on either count, since CUPE has long been a donor and Vision has long rejected contracting out.

But what hasn't been examined closely are the defamation lawsuit details - or the fact that the lawyer retained by Robertson and Meggs is one of the most respected and successful defamation lawyers in Canada - Bryan Baynham.

He's not just any lawyer - last year he was named Best Lawyers® in Canada 2013 Vancouver "Lawyer of the Year" in the area of Defamation and Media Law.

And I know he's a lawyer to be feared - because he was the lawyer who forced me and 24 Hours Vancouver newspaper to apologize to one of his clients over a column I wrote - the only such apology I've ever made involuntarily in writing for newspaper for nearly 40 years.

Baynham has also cross-examined me in BC Supreme Court when he was defending a lawyer being sued by several owners of my condominium and I was a witness.  It is not a fate to be tempted lightly, believe me, because Baynham is an intimidating, take no prisoners legal counsel.

Baynham is also currently representing journalist Laura Robinson, who is suing and being sued by former Vancouver 2010 Olympics boss John Furlong and has a long history of involvement in significant defamation cases.  Baynham's bulldog defence of Robinson and demands that the case proceed to court immediately have put Furlong in a difficult situation.

So I was rather stunned to see LaPointe - a former managing editor of the Vancouver Sun well aware of defamation issues - and the NPA not only continue to defend their statements and run TV and radio ads the lawsuit says are defamatory and refuse to back off but to then double down with a news release Saturday reiterating their contempt for the lawsuit's demand of retraction and apology.

That's what you call asking for punitive and significant damages should you go to court and lose.

And while some commentators have said that's unlikely, but when you accuse a politician of "corruption" and "breach of fiduciary duty" what choice do they have?  

As President of my communications and strategy consulting firm West Star Communications, I always tell my clients that allowing a defamatory statement to go unchallenged means it will stick around forever, being repeated indefinitely.  

And as a business owner for 16 years, I have had lawyers send defamation demand letters when my character was publicly attacked in an untrue and damaging way.

I also know both Meggs and Robertson well personally - and know that the allegations are painful for both, given their years of public service.

Charlie Smith, Editor of the Georgia Straight rightly concluded early on that if Meggs lost the November 15 election, his argument that the defamation - if proven  - cost him his council seat would make aggravated damages far more likely.

Smith points out that: "...under Canadian defamation law, the burden of proof always rests with the defendants.  You can't just say anything without being able to back it up."  

Indeed.  And especially not when you are facing one of the top defamation lawyers in Canada.

And what if Vision Vancouver - regardless of the election results - sees the defamation case as a way to severely financially punish the NPA, as well as politically damaging it in advance of the next election?

Certainly Baynham's response letter November 8 to the NPA's lawyer Geoffrey Cowper was indicative that this case will not be going away:

"While I accept that WIC Radio [NOTE: precedent setting defamation case] is the governing authority on the defence of fair comment the defence does not apply to the series of vicious personal attacks on my clients' integrity as detailed in the Notice of Civil Claim. 

Each defamatory statement was a statement of fact, not an "honest opinion" which would allow your clients to rely on the defence of fair comment.

Spurious allegations of intentional wrongdoing by an elected official are among the most serious defamations that can be made and tend to debase the whole electoral process and discourage good candidates from running for office.

The fact that they were made in the course of an election campaign, with a view to enhancing the electoral fortunes of Mr. LaPointe and his NPA candidates, is clear evidence of express malice which would defeat the defence of fair comment in any event. 

Rest assured, the Notice of Civil Claim was not filed "to manipulate public opinion" or to "bully" or "intimidate” your client as he has publicly asserted.

My clients commenced the claim to stop the "personal attacks" and "the gutter politics" employed by your clients.

Absent a full retraction and apology they will see that case through to judgment in the Supreme Court of British Columbia to establish a legal precedent that confirms once and for all that there are real consequences when a candidate falsely alleges corruption, vote buying and criminal conduct.  

It is ironic that had Mr. LaPointe stuck to the campaign pledge he made back in July he would not find himself in this predicament. That pledge was titled:

On running a clean campaign and avoiding personal attacks: 

It read in part:

So today I make this other promise...to steer clear of personal attacks, the gutter politics that people are fed up with. If they breach that boundary, I will resign as a candidate. 

I renew the demand to retract and apologize as set out in my letter of November 6, 2014

Please confirm that you have instructions to accept service on behalf of Mr. Lapointe to avoid the necessity of serving him personally.

In any event, please ensure that I have your response within the time limit set out in the Supreme Court Civil Rules."

Will this case become a new precedent for what can and cannot be said about politicians?

And will LaPointe and the NPA regret getting into the very "gutter politics" they claimed people are fed up with?

One former politician in the United States had something to say about that: 

"The public is increasingly disgusted with a steady diet of defamation, and prepared to reward those who refrain from it.”

- Mitch Daniels, former Indiana governor.

NOTE TO READERS:  This column was written for The Tyee only - 24 Hours Vancouver did not publish on November 11.