Kent v. Postmedia Network Inc., 2011 ABQB 479

Court of Queen ’ s Bench of Alberta Citation: Kent v. Postmedia Network Inc., 2011 ABQB 479 Date: 20110722 Docket: 1001 16418 Registry: Calgary Between: Arthur Kent Plaintiff/Respondent - and - Postmedia Network Inc., National Post Inc., Paul Godfrey and Gordon Fisher Defendants/Applicants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ [ 1 ] The Plaintiff in this case is a journalist of significant international acclaim.

He has brought an action against both the Defendants in this action and certain other parties (see Kent v. Martin et al. , Docket 0801-08414) alleging, inter alia , that the Defendants and the other parties defamed him and/or were responsible for the failure of his bid at a political office in Alberta. The facts at the heart of both actions are set out in my decision at 2011 ABQB 416 and in more detail in the reasons of Justice Miller of this Court at 2011 ABQB 298 . [ 2 ] There is an application pending to consolidate the two actions.

However, that application was adjourned sine die for different reasons, including to allow notice to be given to new Defendants added in my decision referred to above. Therefore, that issue is not presently before me. [ 3 ] The application now before me is to remove Mr. Paul Godfrey as a Defendant in this action. In or around July 2010, the Defendant Postmedia Network Inc. (“Postmedia”) acquired Canwest Publishing Inc. and The National Post Company, two of the Defendants in the other action. The Defendants state that Mr.

Godfrey is the President and Chief Executive Officer of Postmedia. [ 4 ] The Defendants bring their application to remove Mr. Godfrey pursuant to Rule 3.74(2)(

b) of the Rules of Court , which

[ 4 ] The Defendants bring their application to remove Mr. Godfrey pursuant to Rule 3.74(2)(

b) of the Rules of Court , which provides as follows: 3.74(2) On application, the Court may order that a person be added, removed or substituted as a party to an action if ... (

b) in the case of an application to add or substitute any other party, or to remove or to correct the name of a party, the application is made by a party and the Court is satisfied the order should be made. [ 5 ] Alternatively, the Defendants rely on Rule 7.3 of the Rules of Court , which provides: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an Affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met. [ 6 ] In support of their application, the Defendants rely on two Affidavits. The first was sworn by Mr. Lorne Motley, the Editor in Chief of the Calgary Herald, on May 27, 2011 (the “First Motley Affidavit”). In the First Motley Affidavit, Mr.

Motley avers that “Reporters and editors of Postmedia and National Post exclusively determine the content on the news pages of the Calgary Herald and the National Post newspapers. At no material time was Godfrey a reporter, editor, writer or publisher with National Post or Postmedia.” Mr. Motley goes on in the First Motley Affidavit to state that he has reviewed the allegations in the Plaintiff’s Statement of Claim and that Mr. Godfrey had no involvement, knowledge, role or personal connection with the articles in question. [ 7 ] The Defendants also rely on a second Affidavit sworn by Mr.

Motley on July 14, 2011 (the “Second Motley Affidavit”). There, Mr. Motley reiterates the statements in the First Motley Affidavit but then adds that he is informed by Mr. Godfrey and does verily believe that Mr. Godfrey had no input, control, responsibility or personal connection to the articles in question. [ 8 ] The Plaintiff takes issue with both Motley Affidavits. With respect to the Second Motley Affidavit, the Plaintiff argues that there was unfairness in the timing of the filing thereof.

At the initial oral hearing on this application, I ordered the parties to submit written argument on July 11, 2011; both parties did so. However, as noted above, the Second Motley Affidavit was sworn on July 14, 2011; it was filed the same day. The Plaintiff asserts that the Second Motley Affidavit was prepared for the purpose of “filling in gaps” in the Defendants’ argument and that this is unfair.

The Defendants argue that the Second Motley Affidavit was filed and served within the time limitations set out in the Rules of Court and that there is therefore no issue as to timing. [ 9 ] Moreover, the Plaintiff argues that the Motley Affidavits do not contain sufficient evidence to allow me to grant the Defendants’ application. The Plaintiff states that the Motley Affidavits speak only in generalities, setting out the “corporate structure” of Postmedia and stating that decisions as to the news content are made by reporters and editors, not by Mr. Godfrey in his capacity as CEO.

The Plaintiff argues that while Mr. Motley swears that he “verily believes” Mr. Godfrey had no involvement in the articles in question, he does not, and indeed could not, swear positively that Mr. Godfrey had no such involvement. The Plaintiff’s position is that only Mr. Godfrey can swear positively to having had no such involvement. [ 10 ] The Defendants, by contrast, take the position that Mr. Motley, in his capacity as corporate officer of Postmedia, can swear

positively to the roles played by various persons within the corporate structure of Postmedia. [ 11 ] With respect to the merits of the

summary judgment application, the Plaintiff refers to Murphy Oil Co. v. Predator Corp. , 2006 ABCA 69 , 384 A.R. 51, where the Alberta Court of Appeal held at para. 24 that “Summary judgment against a Plaintiff, or a Plaintiff by counterclaim, will only be granted where there is no genuine issue for trial. It must be ‘plain and obvious’ that the action cannot succeed...”. The Plaintiff argues that his Statement of Claim includes specific allegations of misconduct by Mr.

Godfrey and that the evidence presently before me is insufficient to lead to the conclusion that it is beyond doubt that those allegations cannot succeed. [ 12 ] For their part, the Defendants argue that the only basis for the claim against Mr. Godfrey is his position as CEO of Postmedia and that a claim on that basis alone cannot succeed. Decision [ 13 ] While there is some dispute as to whether this application should have been made pursuant to Rule 3.74(2)(

b) or Rule 7.3, I need not resolve that issue as I am of the view that the application should be dismissed in either event. [ 14 ] If the matter falls within the purview of Rule 7.3, the evidence presently before me is insufficient. The Plaintiff, in paras. 20 and 21 of his Statement of Claim, alleges personal involvement by Mr. Godfrey in this matter. While Mr. Motley can swear that, in light of Postmedia’s corporate organization, Mr. Godfrey should not have had any involvement with the content of the news pages, he is in no position to swear that Mr.

Godfrey did not “step outside” his role as CEO and become personally involved. Only Mr. Godfrey can make a positive assertion to that effect. While Mr. Motley may be able to speak for Postmedia as a corporation, Mr. Godfrey personally is named as a Defendant. In the absence of evidence from Mr. Godfrey himself, it is not plain and obvious that the Plaintiff’s allegations against Mr. Godfrey cannot succeed. [ 15 ] Further, I think it is significant that Mr.

Godfrey relies in the Statement of Defence not only on a denial of any involvement in the matters in question, but also, collectively with the other Defendants, on the defences of qualified privilege, responsible journalism, fair comment and so on. I have difficulty reconciling these defences with the absence of any involvement on Mr. Godfrey’s part and this, too, leads me to the conclusion that it is not plain and obvious that the Plaintiff’s allegations against him cannot succeed. [ 16 ] Turning to Rule 3.74(2)(b), I indicated in my decision in the related matter of Kent v.

Martin , 2011 ABQB 416 , that the requirement in that Rule that the Court must be “satisfied the order should be made” means to me that justice requires that the application be granted. When I look at that test, there is, in my view, an overarching concern about fairness. In this respect, reliance on the Motley Affidavits is problematic. As the Plaintiff rightly pointed out, it is impossible to cross-examine Mr. Motley in any meaningful way about the actions and knowledge of Mr. Godfrey.

I am also troubled about the late filing of the Second Motley Affidavit, though the primary issue is the lack of direct knowledge on Mr. Motley’s part. Consequently, if the matter falls to be decided on the basis of Rule 3.74(2)(b), I am not satisfied that the order applied for should be made. [ 17 ] In the result, I am not satisfied that Mr. Godfrey should be removed as a Defendant in this action and I therefore dismiss the application. I note that counsel for the Defendants, in the course of the oral hearing, reserved the right to file a fresh Affidavit sworn by Mr.

Godfrey. [ 18 ] Given his success, the Plaintiff shall have his costs of this application, payable in any event of the cause. Heard on the 18 th day of July, 2011. Dated at the City of Calgary, Alberta this 22 nd day of July, 2011.

W.A. Tilleman J.C.Q.B.A. Appearances: Michael Bates Ruttan Bates for the Plaintiff G. Scott Watson and Peter Cline Parlee McLaws LLP for the Defendants Postmedia Network Inc., National Post Inc., Paul Godfrey and Gordon Fisher