Kent v Martin, 2016 ABQB 314

Court of Queen’s Bench of Alberta Citation: Kent v Martin, 2016 ABQB 314 Date: 20160608 Docket: 0801 08414; 1001 16418 Registry: Calgary Docket: 0801 08414 Between: Arthur Kent Plaintiff - and - Don Martin, The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd. and Canwest Mediaworks Inc. Defendants Docket: 1001 16418 and Between: Arthur Kent Plaintiff - and - Postmedia Network Inc. and National Post Inc. Defendants

Corrected judgment: A corrigendum was issued on August 24, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J. Strekaf _______________________________________________________ I. Introduction . 3 II. The Parties . 3 III. Positions of the Parties . 4 IV. The Evidence . 4 V. Findings of Fact 6 VI. Analysis . 17 A. The Test for Defamation . 17 B. Issues to be Determined . 17 C. Is the

Article Defamatory? . 18 D. Defences . 23 1. Statements of Fact v Comments . 23 2. Qualified Privilege . 24 3. Justification . 25 4. Responsible Communication on Matters of Public Interest 25 5. Analysis of the Defamatory Factual Statements in the

Article . 32 6. Conclusion on the Defence of Responsible Communication on Matters of Public Interest 37 7. Fair Comment 38 8. Online Publication . 40 9. Malice . 43 E. Damages . 48 F. Other Matters . 58 VII. Conclusion . 59 Appendix A .. I Appendix B .. III I. Introduction

[ 1 ] These two actions involve claims by the Plaintiff Arthur Kent against Don Martin and a number of media outlets arising out of an allegedly defamatory

article written by Don Martin about Mr. Kent’s campaign as a Progressive Conservative (“PC”) candidate running in the Calgary Currie constituency in the Alberta Provincial General Election held on March 3, 2008 (“Article”). The

Article was published by the corporate Defendants in the print editions of the National Post, the Calgary Herald and the Edmonton Journal on February 12, 2008 and online on various websites. [ 2 ] These cases involve the law of defamation. Defamation is a tort that reflects a balancing of some important values in Canadian society, including the fundamental right to freedom of expression and an individual’s right to their reputation. Also at play in these cases is the public interest in receiving fair and accurate information about candidates during an election campaign in a democratic society. II.

The Parties [ 3 ] Arthur Kent was born in Medicine Hat and raised in Calgary, Alberta. He graduated with a degree in journalism in 1975 and worked at various media outlets, including for CBC’s The National in 1977. He began working as an independent reporter and photographer in 1979, commenced reporting from Afghanistan and Pakistan in 1986, and became NBC News’ Rome correspondent in 1989. Mr. Kent was awarded two Emmys for his reporting on the Tiananmen Square massacre and the Romanian uprising. During the first Gulf War in 1991 he acquired the nickname “Scud Stud” in the course of reporting from Saudi Arabia.

Mr. Kent was a regular contributor to Canwest Global television from Afghanistan until January of 2008. He is an internationally recognized journalist and independent documentary film maker with a focus on the wars in Afghanistan, Bosnia and Iraq. He has worked for and contributed to the CBC, NBC, CNN, PBS, the BBC, the Observer, the History Channel, the Ottawa Citizen and the Calgary Herald. [ 4 ] The Defendants in the first action (0801 Action) are Don Martin, The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd. and CanWest Media Works Inc.

Don Martin worked as a journalist with the Calgary Herald from 1978 to 2010. He began as a reporter covering Calgary City Hall and became a political columnist in the fall of 1988. In 2004, he also began writing columns for the National Post, based in Ottawa. Since leaving the Postmedia Group in December 2010, Mr.

Martin has been the host of Powerplay on the CTV News Channel. [ 5 ] In February 2008, Canwest Publishing Inc. was the publisher of the Calgary Herald and The National Post Company, a partnership of National Post Holdings Ltd. and Canwest Mediaworks Inc, was the publisher of the National Post. [ 6 ] The Defendants in the second action (1001 Action) are Postmedia Network Inc. (“Postmedia”) and The National Post Inc., which was dissolved on January 31, 2011. Postmedia acquired the Calgary Herald, the National Post, other Canwest newspapers and the Canwest database on July 13, 2010. III.

Positions of the Parties [ 7 ] Mr. Kent submits that he was defamed by the Article, which he characterizes as a “hit piece”, being an

article designed to sway voters and turn public opinion against someone through the false appearance of objective reporting or editorializing. He denies that the defences of qualified privilege, justification, responsible communication on matters of public interest or fair comment apply. A finding of malice is sought against Don Martin for writing a false piece designed to destroy his reputation and ruin his political career. A finding of malice is also sought against the Corporate Defendants on the basis that they are vicariously liable for the actions of Mr. Martin and for publishing the

Article and continuing to make it available online for more than four years without publishing a rebuttal or retraction. [ 8 ] The Defendants deny that the

Article is defamatory. They submit that Mr. Kent was running an atypical campaign and that his criticisms of his own party and of the Premier during the election campaign drew critical media attention from a number of sources. The

Article was characterized as an opinion column which, if defamatory, was subject to the defences of fair comment, qualified privilege and responsible communication on matters of public interest. They deny any malice and state that Mr. Martin took adequate steps to research the Article. IV. The Evidence [ 9 ] The evidence was introduced over 22 trial days. The Plaintiff called the following 14 lay witnesses and two experts, in addition to testifying on his own behalf: i. Michael Skwara – friend of Mr. Kent and Office Manager and Candidate Coordinator for the Kent Campaign; ii.

Hugh Dunne – TV producer/director and friend of Arthur Kent with long standing connections to the PC Party; responsible for Media Messaging for the Kent Campaign; iii. Kristine Robidoux – PC Party volunteer and Mr. Kent’s Agent for his nomination for the Currie Constituency; Legal Counsel and Official Agent for the Kent Campaign; and PC Party Quadrant Chair responsible for coordinating five Calgary constituencies for the 2008 election; iv. Stephen Doolan – PC Party volunteer; former PC Calgary Currie Constituency Association Board member; and Financial Agent for the Kent Campaign;

v. Bart Nicholls – long-time PC Party volunteer and Volunteer Chair and Door-knocking Coordinator for the Kent Campaign; vi. Leonard Grant – friend of Mr. Kent and volunteer door-knocker, sign poster and flyer distributor for the Kent Campaign; vii. Vicki Gardiner – volunteer door-knocker who also assisted with social events for volunteers and constituents for the Kent Campaign; viii. Robert Blakey – friend of Mr. Kent and volunteer door-knocker with the Kent Campaign; ix. Sean Fairhurst – Ms. Robidoux’s husband; x. Heath McCoy – Calgary Herald journalist who reported on the Kent Campaign; xi.

David Boushy – Global Television broadcaster who reported on the Kent Campaign; xii. Bob Bergen – retired Calgary Herald reporter; xiii. Martin Pelletier – investment advisor and columnist with the Financial Post; xiv. Lieutenant Colonel Jamie Robertson (retired) – former public affairs officer with the Canadian Armed Force and acquaintance of Mr. Kent; xv. Jeffrey Dvorkin – qualified as an expert in journalism ethics and standards; xvi.

Kevin Ripa – qualified as an expert in forensic computer investigation and internet and web architecture investigation. [ 10 ] Evidence was read-in from the questioning of Don Martin, Gord Smiley (Assistant Editor of the Calgary Herald), Peter deGroot (Postmedia’s Vice President, Digital Media and Emerging Technology), Janet Hurly (Canwest Rights Manager), Paul Godfrey (President and Chief Executive Officer of Postmedia), Gordon Fisher (Executive Vice-President of Postmedia), Don Braid (Calgary Herald columnist), Chris Varcoe (Calgary Herald Senior Editor), Jonathon Kay (National Post Managing Editor for Comment), Dan Lapierre (Postmedia’s Director of Information Security in IT Audit), Jeff Clark (Postmedia’s former Vice-President Audience and Analytics) and Lorne Motley (Editor of the Calgary Herald). [ 11 ] The Defendants called the following 11 lay witnesses and two experts, in addition to Mr.

Martin: i. Bill Smith – long-time PC Party volunteer; the Calgary Vice-President of the Alberta PC Party; responsible for the PC Party Calgary Campaign; ii. Joseph Lougheed – long-time PC Party volunteer who was the Provincial Campaign Secretary for the 2008 election; iii. Allan Hallman – long-time PC party volunteer; iv. Lisa MacIntosh – long-time PC Party volunteer and the Voter ID Chair for the Kent Campaign; v. Bruce Thorpe – long-time PC Party volunteer and the Campaign Manager for the Kent Campaign; vi.

Jason Fekete, Don Braid and Kelly Cryderman – journalists employed by the Calgary Herald who reported on the Kent Campaign; vii. Graham Thomson – journalist employed by the Edmonton Journal who reported on the Kent Campaign; viii. Jeff Clark – former employee of Postmedia, who had been Vice-President Audience and Analytics from 2012 to 2015; ix. Peter deGroot – Postmedia’s Vice President, Digital Media and Emerging Technology; x. Lorne Motley – Editor of the Calgary Herald; xi. Dr. Greg Elmer – qualified as an expert in media coverage of politics, including political elections; xii.

Dean Jobb – qualified as an expert in journalism ethics and standards. [ 12 ] Evidence was read-in from the questioning of the Plaintiff. V. Findings of Fact [ 13 ] Arthur Kent was a well-known journalist and independent documentary film-maker when he returned to live in Calgary in the mid-2000s on a full-time basis. He was approached by a number of people connected with the Alberta PC Party and recruited to run as a candidate. Mr. Kent was interested in doing so as he had concerns that the “Alberta Advantage” was being lost and felt that there seemed to be stagnation in public administration in Alberta.

[ 14 ] In the fall of 2007, Mr. Kent sought the PC Party nomination in Calgary Currie, which was his home riding. He was assisted in his campaign for the nomination by friends and acquaintances and also by a number of individuals associated with the PC Party and the PC Calgary Currie Constituency Association who were not previously known to him. This latter group included Kristine Robidoux, a lawyer and PC Party member who had worked on previous PC Party campaigns, who asked to work on Mr. Kent’s nomination. [ 15 ] Allan Hallman, who was a long-time PC Party volunteer, had been recommended to Mr.

Kent as someone who could help with his campaign. However, Mr. Kent had heard some negative things about Mr. Hallman and was cautious about Mr. Hallman becoming involved in his campaign. On November 12, 2007, Kristine Robidoux sent an email to Mr. Kent, Mr. Hallman and another individual suggesting that she would raise with Patti Wickstrom (who was running against Mr. Kent for the nomination) “the possibility of her pulling out of the nomination (since I know that she has been thinking about it). Do either of you have any comments, concerns, suggestions, etc.? Is this worthwhile? Appropriate?” Mr.

Hallman responded immediately stating: I see no down side in discussing this with her, in fact has anyone spoken to Chapman (the other candidate) as well? Is there a carrot that we can offer her to make this an easier decision for her. Any ideas what she is looking for? If she is capable, what would her feeling be on her as campaign manager during the election???, constituency association position, MLA assistant??? Just thinking out loud here. [ 16 ] Mr. Kent had a different reaction to the suggestion and sent the following email to Mr.

Hallman: Regarding your email yesterday on the subject of the other nominees’ campaigns, that’s not the way I wish to proceed. In fact, I saw Patty door knocking yesterday and admire what she and our other colleagues are doing. On the broader front, we’ve decided to conclude the nomination process with our Calgary Currie team, and so will not be requiring you, your company or your associates for our activities going forward. [ 17 ] Mr. Hallman’s response was: “No one has more admiration for candidates than I. Your email was rude. All the best Art.” Mr. Hallman and Mr.

Kent had no further contact in the course of the election campaign until the night of the election when Mr. Hallman sent Mr. Kent an email on March 3, 2008, at 10:54 p.m. that stated: “Massive majority. And you lost. Well done. Call anytime.” [ 18 ] Mr. Kent won the nomination on November 17, 2007. Premier Stelmach called him the next day to congratulate him on winning the nomination and asked him to report back to him after going door-to-door about what young families were thinking about daycare and childcare and the response to the royalty review. Mr.

Kent set up a campaign office, established a campaign team and began recruiting volunteers and door-knocking. [ 19 ] On January 1, 2008, the Calgary Herald identified Mr. Kent as one of “20 Compelling Calgarians” on the front page of the print edition and published an

article written by him on the Editorial Page entitled “Canada must share the blame for Bhutto assassination”. [ 20 ] The writ was dropped on February 4, 2008, calling for the Alberta provincial election to be held on March 3, 2008. At that time, the Kent Campaign Team had a positive atmosphere, a good group of volunteers and was actively door-knocking every day. Mr. Kent would listen and take as much time as needed with people at the door when door-knocking.

Constituents were telling him that they wanted politicians who would listen to them and he saw his role as bringing forward the views of his potential constituents. Mr. Kent was new to politics and was concerned that the PC Party had lost its way and needed to adopt a new approach. He was openly taking a position on a number of issues that was not consistent with the official PC Party platform.

He was raising questions about the Government’s royalty review that had been introduced by Premier Stelmach, which was unpopular in Calgary Currie, and was expressing strong views that that the PC Party needed to move on from the Klein days. [ 21 ] On February 4, 2008, Heath McCoy, a reporter with the Calgary Herald, received a tip that the Kent Campaign had lost a sign off of the back of a truck, closing Deerfoot Trail. Mr. McCoy had access to Arthur Kent’s email and phone number through newsroom contacts and easily arranged to speak with him.

He learned that the campaign actually lost pamphlets off of the back of a truck and that there were no problems with Deerfoot Trail. He prepared an

article entitled “Courting the Wildlife Vote” that was published on the Calgary Herald campaign trail blogsite. [ 22 ] On February 4, 2008, Kristine Robidoux advised the five PC Party candidates in the constituencies in her quadrant that Premier Stelmach wanted all of the PC Party Calgary candidates to attend a major health care announcement at the Foothills Hospital at 3 p.m. on February 5, 2008, and to have a briefing session and group photo. While all of the other candidates agreed to attend, Arthur Kent initially advised her that he was unable to do so as he was solidly booked campaigning. Ultimately Mr.

Kent did attend the announcement but his initial reluctance to participate frustrated Ms. Robidoux and raised concerns amongst some of the PC Party faithful about his willingness to act as a “team player”. [ 23 ] On February 5, 2008, Joseph Lougheed advised Mr. Kent that Premier Stelmach, who had been scheduled to speak at Mr. Kent’s Calgary Currie breakfast fundraiser on February 8, 2008, would be unable to attend and that Cabinet Ministers (and Calgary MLAs) Ron Stevens and Ron Leipert would attend in his place. This was due to the changes made to the Premier’s

schedule once the election was called to enable him to concentrate on the needs of the campaign throughout the province. While members of the Kent Campaign were all disappointed, Arthur Kent found this change of plan particularly distressing because he had not been contacted directly by the Premier or a member of his campaign team. He had also just discovered that the constituency funds made available for his campaign were significantly less than in other Calgary ridings, so the need for fundraising was a priority. Tickets had been sold for the fundraiser on the expectation that the Premier would be attending.

Mr. Kent had also been attempting to arrange a promised meeting for the same day between the Premier and some oil and gas executives from his riding to discuss their concerns about the royalty review. Mr. Kent was frustrated because he was having difficulty reaching anyone from the Premier’s Campaign Team to discuss his concerns. [ 24 ] There was a flurry of email exchanges over the course of the next few days about who should be speaking at the breakfast fund-raiser and what topics should be discussed. [ 25 ] Tensions were developing between Mr. Kent and some members of the PC Party Campaign Team due to what Mr.

Skwara

described as one way communication and pressure on Mr. Kent to tow the party line on issues such as royalties, whereas his position was that there needed to be an open process with dialogue. Mr. Skwara’s view was that the PC Party had “appointed” various individuals to the Kent Campaign Team and there was a divide between the “old guard” of the party, who expected candidates to follow the messaging of the party, and Mr. Kent, who was speaking out to express the views of his constituents. [ 26 ] Some individuals within the Kent Campaign who were long time PC Party veterans (Ms. Robidoux, Ms. McIntosh and Mr.

Thorpe) felt that Mr. Kent was over-reacting to the cancellation of the Premier’s attendance at the fund-raising breakfast, that he was not behaving like a “team player” and needed to be reined in.

Their view was that the campaign team would make decisions and the candidate should do what he was told. [ 27 ] On the evening of February 6, 2008, Arthur Kent received an email from Patty Wickstrom (a member of the board of the Calgary Currie Constituency Association who had been an unsuccessful candidate against Arthur Kent for the nomination and who had turned down an invitation to work on the Arthur Kent campaign) regarding the fundraiser breakfast.

She advised that it was her responsibility as VP Social of the Calgary Currie PC Association to organize the event, that the purpose was to fundraise for the Calgary Currie PC Association and give people the opportunity to hear firsthand what the Government of Alberta has done and plans to do, and that this message would now be delivered by Ministers Stevens and Leipert as the Premier’s plans had changed due to the election call. She forwarded a revised

schedule for the breakfast meeting. [ 28 ] Arthur Kent took strong exception to Ms. Wickstrom’s email, which he viewed as contrary to legislation which prohibited a constituency association from raising money during an election campaign and unwarranted interference from a person who had run against him for the nomination and then declined an invitation to work on his campaign. He sent Bruce Thorpe an email at 6:01 a.m. the following morning stating that “the breakfast is the Currie Campaign’s to organize, arrange and conduct, in spite of outside interference.

I will be the keynote speaker, and am prepared to take legal action against unwelcome intrusion by hangers-on from the old absent association board, or by anyone from outside our campaign team.” [ 29 ] Bruce Thorpe responded with a lengthy email at 8:04 a.m. advising Mr. Kent that he had been making unilateral decisions and not listening to advice from his campaign team. It stated in part that “half your campaign team is ready to walk out the door,” that Mr. Kent needed to focus on provincial issues at the breakfast, not talk about Afghanistan and encouraged him to be more of a team player.

Bruce Thorpe forwarded this email chain to Bill Smith and Kristine Robidoux at 9:27 a.m. stating: FYI. This email is STRICTLY between the three of us until I call for help. I am doing due diligence informing you of a possible pending issue. I do not take lightly legal action against me as I am merely a volunteer. [ 30 ] Arthur Kent and Bruce Thorpe had a discussion that morning in which Mr. Kent explained that there was a misunderstanding.

He had not planned to speak about military strategy in Afghanistan, but about the experiences of Canadian Forces veterans and their families, many of whom lived in Calgary Currie, who often fall between the cracks between Armed Forces support programs and federal and provincial jurisdiction. Mr. Thorpe sent a follow-up email to Bill Smith and Kristine Robidoux at 2:42 p.m. on February 7, 2008, stating: All appears to have been resolved.

I have a promise he will be professional and focused on non-Afghanistan related issues. [ 31 ] The breakfast fundraiser proceeded on February 8, 2008, with Senator Ron Ghitter introducing Arthur Kent. The event was generally considered to have been successful. [ 32 ] Roy MacGregor, a columnist with the Globe & Mail, interviewed Mr. Kent and wrote a column entitled “From ducking missiles to hustling votes, the Scud Stud turns to politics” that was published in the Globe & Mail on February 8, 2008.

He described a “growing schism in the (PC) party between the Klein faithful and the new” and noted that Rod Love had described the Liberal incumbent who was running against Mr. Kent as a “good MLA”. He quoted Mr. Kent as stating that “the Klein era is over”, that “people want to move on” and that Premier Stelmach “understands the need of that wake-up call, the need for new faces and new ideas.” [ 33 ] On February 8, 2008, Don Braid, a political columnist with the Calgary Herald since 1978 (except for a stint at the Calgary Sun from 1987 – 2001), contacted Mr.

Kent for a telephone interview as he had heard that Mr. Kent was upset about Premier Stelmach not attending the Calgary Currie fundraising breakfast. They had a friendly conversation in the course of which Arthur Kent made a number of comments that Don Braid found surprising, as he had never heard a candidate be so critical of his own party during an election campaign. Mr.

Braid confirmed with Arthur Kent that it was acceptable to use the quotes, as it was “high octane controversial material” and he wanted to ensure that Arthur Kent did not consider their conversation to be off the record. [ 34 ] Following the telephone interview, Don Braid wrote an

article that appeared in the Calgary Herald on February 9, 2008, which was entitled “Tories’ week points to past disaster,” which discussed how the Premier’s campaign team had canceled his attendance at the breakfast without contacting Mr. Kent directly and how Mr. Kent was “harshly critical of Stelmach’s campaign team,” and which included the following quotes from his conversation with Mr. Kent: • “They’ve asked nothing. They want nothing but my name, sadly. But I’m not going to let them discourage me.

I’m going after the biggest majority in southern Alberta”; • That Stelmach’s team see him and his team “as competitors, somehow, rather than as partners. There should be a more inclusive attitude”; • “They should be asking us what we’re hearing on the doorsteps and where the campaign should go. They don’t do that. Instead, they rely on those damn telephone surveys that are really pissing people off”; • “One-way communication of the sort we experience this week is not the way to go. You don’t just call the bustling heartland of the most exciting city in North American and say, ‘No, we can’t make it”;

• “We can’t fool ourselves. If we really want to rebuild this government we have to do things differently”. [ 35 ] Another

article appeared on the front page of the Calgary Herald on the same day entitled “Star Tory candidate takes aim at Stelmach,” which was written by Jason Fekete and Don Braid with files from Jason Markusoff, and which contained some of the same quotes. [ 36 ] Other articles that contained similar themes appeared in the press over the next couple of days including: • “Stelmach staff ‘talking down’ to candidates, Calgary Tory says” on the Canadian Press website on February 9, 2008, at 10:33 p.m.

EDT; • “Stelmach faces flak during first week on the hustings; Liberals, NDP pepper province with promises” by Gordon Kent in the Calgary Herald on February 11, 2008; • “Native issues divide Taft, Stelmach; Liberal leader wants aboriginal affairs in cabinet” by Jason Fekete with Jason Markusoff; • “Scud Stud or loose cannon” by Don Braid in the Calgary Herald on February 12, 2008; and • “Kent lashes ‘amateurish’ Tory inner circle” by Kelly Cryderman in the Calgary Herald on February 12, 2008. [ 37 ] The media coverage Mr. Kent was receiving created considerable consternation amongst some members of Mr.

Kent’s campaign team who had longstanding links to the Alberta PC Party as it was perceived as a distraction that was not helpful to the Kent Campaign or the PC Party generally. Arthur Kent and some members of his Campaign Team met on the afternoon of February 9, 2008, to discuss concerns that Arthur Kent was not being a “team player” and was airing dirty laundry in public. It was suggested to Mr. Kent that issues such as the royalty review could best be addressed in caucus after the election. [ 38 ] Other members of the Kent Campaign team, primarily those recruited directly by Mr.

Kent, continued to be strong supporters of his approach. Mr. Skwara described the Braid articles as positive for the Kent Campaign, as people at the doors were happy that someone was speaking out and volunteers were signing up. [ 39 ] Bill Smith (Alberta PC Party Vice-President who was responsible for the Calgary Campaign) had arranged a half hour to be blocked off on February 12, 2008, for a private meeting between Arthur Kent and Premier Stelmach and was surprised when he was advised that Arthur Kent was not available because he was fundraising and campaigning.

However, Hugh Dunne, who was responsible for Media Messaging on Mr. Kent’s Campaign had recommended to Mr. Kent on the evening of February 11, 2008, that he not meet with the Premier on February 12, 2008. [ 40 ] There were some technical problems with email access from the Premier’s staff that occurred when the writ was dropped, which aggravated communication issues between Mr. Kent and the Premier’s Campaign Team. On February 12, 2008, Mr.

Lougheed sent an email to Hugh Dunne explaining why emails from Ron Glen (the Premier’s Chief of Staff) had not reached Arthur Kent and indicating that Ron Glen wanted to talk with him. The email went on to state: Glad this is now behind us and we can focus on the issue, the platform and getting our team elected! I don’t want this to hurt our candidate so I am glad the media is slowly getting bored of the story. [ 41 ] It was in this context that the

Article was written and published. Unbeknownst to Arthur Kent or anyone else on the Campaign Team, Ms. Robidoux, who was frustrated with Mr. Kent, had passed on the Wickstrom-Kent-Thorpe email chain of February 6-7, 2008, (“Email Chain”), which had been provided to her by Bruce Thorpe on a “STRICTLY between the three of us basis” to Don Martin who she knew socially on either February 7, 2008, (according to her) or on February 8, 2008, (according to him) when he had contacted her to find out how the campaign was going. Mr.

Martin says he was “gobsmacked” by the Email Chain, as a reporter would not usually get access to internal emails from a campaign manager trying to rein in a candidate in the middle of a campaign. [ 42 ] Mr. Martin stated that he read the Braid and MacGregor articles over the weekend, which caught his attention as it was a breach of protocol and unusual for candidates to openly speak against the leader in the course of a campaign.

He mused about the differences between Arthur Kent and his brother, Peter Kent, who was running federally for the Conservatives in Ontario, and conducted some internet research on Arthur Kent with a view to writing an

article about the Kent Campaign. [ 43 ] On February 12, 2008, Rod Love, who had been Premier Ralph Klein’s Chief of Staff and media person, and who Mr. Martin knew well from his days covering Alberta politics, emailed the February 12, 2008, Braid

article to Don Martin stating “Look at this…”. Mr. Martin contacted Mr. Love and asked if “he’d ever seen anything like it” and what would have happened to Arthur Kent if he had won a seat under Ralph Klein’s government. Mr. Love told Mr. Martin that Arthur Kent would be in the back row, on the worst committees and would never get travel perks. [ 44 ] Mr. Martin emailed Kristine Robidoux on February 12, 2008, at 8:24 a.m. stating: “I see the death spiral for AK continues. Any more dirt? Column runs tomorrow.” She responded: “OMG it’s all bad.

I am dealing at this very moment with his official/financial agent who is resigning today.” She later went on to state: “The premier is making an announcement in an hour – specifically requested Arthur Kent’s attendance there, to have a chat. He ‘declined’. Wowzers. It’s all bad.” [ 45 ] Mr. Martin sent emails seeking information about Mr. Kent to Patti Wickstrom (whose email had initiated the Email Chain) and the Premier’s office. [ 46 ] Mr. Martin contacted Bruce Thorpe by telephone in the late morning of February 12, 2008. Bruce Thorpe said the discussion was to be “off the record” and Don Martin agreed.

When Mr. Martin asked Mr. Thorpe if any key officials had quit he said “not yet” and told Mr. Martin that he could use that. Mr. Martin asked specifically about the financial agent resigning and Bruce Thorpe told him that he had not heard that Mr. Doolan was going to resign. Don Martin did not ask Mr. Thorpe any questions about the Email Chain that

Kristine Robidoux had forwarded to him. [ 47 ] Mr. Martin had heard from someone (possibly Mr. Love) that there had been some connection between Allan Hallman and the Kent Campaign, so he called Mr. Hallman. Mr. Hallman said that Mr. Martin asked him right off the bat “have you ever seen a candidate fall so far so fast?” He said he knew Don Martin was talking about Arthur Kent as he could not think of another star candidate who had embarrassed the party so much. Mr. Hallman told Mr.

Martin that he had offered his services to the Kent Campaign and they had declined and told him that they did not need any help from a leftover from the Klein era and referred to him as Jurassic Park. [ 48 ] Mr. Martin had used Mr. Love and Mr. Hallman as sources for his columns in the past and had a loose arrangement with them, where it was understood he would not use their names, but could use what they said. [ 49 ] Mr. Martin never spoke with Arthur Kent prior to publication of the Article.

He sent an email message to the email address for Arthur Kent listed on his website (info@arthurkent.ca) at 10:35 a.m. on February 12, 2008, and testified that he called the campaign office and there was no answer. He stated that he believes he would have left a message if there was a recording but has no recollection of doing so. Mr. Skwara denied that a call was received at the Kent Campaign office on February 12, 2008, as the campaign office phone was a multi-line system that was answered whenever the office was open, and that it had voicemail. [ 50 ] The

Article was published online on the National Post website on the evening of February 12, 2008. It appeared in the print versions of the Calgary Herald, the National Post and the Edmonton Journal and online on the Calgary Herald website on February 13, 2008. Attached as Appendix A is the text of the Calgary Herald print version of the Article, which contains some minor differences from other versions of the

Article published by the Defendants. [ 51 ] The reaction to the

Article within the Kent Campaign was largely one of shock. Vicki Gardiner, a volunteer on the Kent Campaign who had been door-knocking after the election was called, described the response at the door as positive as people were happy that Mr. Kent was running. She was “stunned” by the Article, which was not what she had observed and which did not reflect her experience. [ 52 ] Mr. Skwara characterized the

Article as “horse patootie.” He stated that nothing in the

article was true, that the campaign team was not ready to quit, that the Financial Officer was coming into the office and never mentioned anything about quitting, and that Arthur Kent was not a “dud,” but was engaging people and was great to deal with. He felt that Mr. Kent was listening to constituents and trying to report back to the government, but they were not listening. [ 53 ] Robert Blakey, a retired journalist and a friend of Arthur Kent who volunteered to help with door-knocking for the campaign was “shocked” when he read the Article.

It contained things that he “found very hard to believe” and gave the impression that Mr. Kent did not know what he was doing. [ 54 ] Ms. Robidoux’s reaction to the

Article was that she was “shocked” and “physically sick over it.” She stated that it was “entirely negative” and “seemed a little mean,” but the worst feeling was having to acknowledge her role in what was published. [ 55 ] Mr. Lougheed was taken aback by the harsh personal nature of the Article. [ 56 ] Leonard Grant, a friend of Mr. Kent and retired broadcaster who volunteered on the campaign, described the mood in the campaign office as buoyant until the

Article came out. He was “dumbfounded” and taken aback by the Article, which he described as a “hatchet job” that did not align with his sense of what was going on in the campaign. [ 57 ] Stephen Doolan sent an email to Bruce Thorpe at 7:11 a.m. on February 13, 2008, which stated that the

Article “Says I have threatened to quit. I have not threatened to quit. Could you pass this along to Arthur.” [ 58 ] Martin Pelletier managed an investment firm and was a weekly columnist for the Financial Post. He had been communicating with Mr. Kent about concerns over the royalty review and felt that Mr. Kent was the only person associated with the government who was willing to listen to what the industry had to say at the time. He found the

article “shocking.” [ 59 ] Mr. Kent was upset by the Article, which he described as “poisonously false” and an “extraordinary distraction” to the campaign. He sent an email to Licia Corbella, the Calgary Herald Editorial Page Editor, on February 14, 2008, stating that he wished “to file a rebuttal of Mr. Martin’s error-strewn attack

article yesterday – about which I can confirm that I was not provided a chance to comment in any way before publication.” She responded “You bet.” [ 60 ] Mr. Kent and his advisors concluded that it would be a mistake to attempt to respond to the

Article while the campaign was on, and decided to focus on the campaign and deal with the

Article after the election. They continued to campaign but found that the response to Mr. Kent at the doors became “more complex” towards the end of the campaign. [ 61 ] The election was held on March 3, 2008. Dave Taylor won the Calgary Currie riding with 5,564 votes (45.6%) and Arthur Kent came second with 4,552 votes (37.3%). [ 62 ] On March 9, 2008, Arthur Kent sent his rebuttal to the

Article entitled “A Tool for Love” (“Rebuttal”) to Ms. Corbella at the Calgary Herald and Jonathon Kay, Managing Editor for Comment, at the National Post. The Rebuttal describes the

Article as an “attack ad” with a “harsh and personal” tone. It provided Mr. Kent’s response to a number of statements in the Article, pointed out that he had not been contacted and linked Mr. Martin to Messrs. Klein, Love, Hallman and Richardson. A copy of the text of the Rebuttal is attached as Appendix B. [ 63 ] Lorne Motley, the Editor of the Calgary Herald, asked Gord Smiley, the Assistant Managing Editor, to review the Rebuttal and advise whether it should be published. Mr. Smiley contacted Don Martin about the

Article and summarized his discussion and his recommendation in an email to Mr. Motley on March 11, 2008, which stated:

Don says at least three Kent insiders were e-mailing him with details about the Kent campaign and how it had gone off the rails. Don also had several sources for the column including the campaign manager and a board member. He also had the vice-president social (which is fundraising) confirm to him that everything he wrote was correct. Don says Rod Love, Allan Hallman and Lee Richardson had nothing to do with what he wrote. He says Kent is/was a national figure and that the Post was also keen on the column.

Don says he’s willing to produce the e-mails which various sources were sending him and can get more if we want. As far as Mr. Kent’s submission is concerned, I very much doubt we can publish any of it. There are unsubstantiated allegations in it concerning Hallman, quotes which we would need to confirm and political connections we would need to verify. I believe the work he submitted is unpublishable. That said, I would suggest if he still wants to respond, we could ask him to write a piece which moves us forward, perhaps a piece about his first foray into politics, lessons learned, battles won…or lost.

I just don’t see us getting anywhere with this he said, she said response. [ 64 ] This email was not disclosed until September 2013, relatively late in the litigation following an order directing the Defendants to provide further production. While Mr. Smiley did not recall having spoken to Mr. Martin when he was initially questioned, nor did Mr. Martin recall speaking with Mr. Smiley when he was questioned, I find that they had the discussion summarized in Mr. Smiley’s email. [ 65 ] Mr.

Smiley contacted Arthur Kent and advised him that the Calgary Herald was not going to publish the Rebuttal because it was highly critical of Don Martin and because it made several references against Rod Love, Ralph Klein and Lee Richardson that he was uncomfortable with and which they had no way of backing up. He said they would be interested in Mr. Kent writing another

article about his life following the election. Mr. Kent stated that Mr. Smiley communicated to him in no uncertain terms that the Calgary Herald was not going to publish anything like his Rebuttal and that there was no offer to write a different

article about the Article. When he told Mr. Smiley “I can’t respond to the Martin

article by writing something that you approve. I have to tell you what really happened,” Mr. Smiley’s response was “[w]e’re not publishing this.” [ 66 ] Mr. Kay decided that Mr. Kent’s Rebuttal would not be published in the National Post because he considered it too dated – the

Article had been published a month earlier. He sent Mr. Kent an email stating that they were not going to publish the Rebuttal, without offering any explanation for their failure to do so or without providing any alternative opportunity for Mr. Kent to respond to the Article. [ 67 ] Mr. Kent’s counsel served a Notice of Intention to Bring Action pursuant to

section 13 of the Defamation Act on May 1, 2008 on Mr. Martin and the corporations who were later named as Defendants in the 0801 Action: RSA 2000, c D-7 . [ 68 ] Mr. Martin contacted Ms. Robidoux and asked her to resend him the Email Chain, as he had lost his copy due to a computer glitch. She forwarded same to him on May 6, 2008, with an email that stated “As promised. (and as YOUR ‘promise, promise, promise’).” [ 69 ] On June 10, 2008, the Defendants’ counsel wrote to Mr.

Kent’s counsel stating: When we discussed this matter in early May I understood that you were going to get back to me concerning identification of any potential factual inaccuracies and to further explore the prospect of having your client write something for publication over and above what was originally proposed by him. [ 70 ] On June 11, 2008, Mr. Kent’s counsel advised the Defendants’ counsel: Mr. Kent had advised that he is not interested in submitting anything further for publication by your client. As your clients at The Calgary Herald are aware, Mr.

Kent declined the suggestion three full months ago, on March 12, 2008, when it was extended via email from Mr. Gord Smiley. Having refused to publish Mr. Kent’s rebuttal, the Herald, in our client’s view, effectively wish to censor any alternate submissions. [ 71 ] The 0801 Action was commenced on July 15, 2008. [ 72 ] In October 2008, the Calgary Herald decided to suppress online access to their version of the

Article so that it could no longer by accessed by members of the public through their website or via the internet from the Canwest SouthPARC database. Steps were also taken to suppress access to the

Article through FPInfomart, Canwest’s commercial archive system that made articles available to subscribers. The National Post version of the

Article continued to be available online. [ 73 ] On October 20, 2008, Mr. Kent began publishing a blog on his website, arthurkent.ca, in which he discussed the

Article and this litigation. The blog postings contained hyperlinks to a PDF version of the

Article and later contained hyperlinks to certain of the Defendants’ websites where the

Article could be viewed. [ 74 ] The Email Chain that had been forwarded by Ms. Robidoux to Mr. Martin and the email exchanges between Ms. Robidoux and Mr. Martin on February 12, 2008, were not disclosed in the initial Affidavit of Records that was sworn by Mr. Motley on behalf of the Defendants on December 22, 2008. Mr. Martin contacted Ms. Robidoux in July 2009 when he was in Calgary for questioning. They met for breakfast and he told her that he was under pressure to identify her as his source of the Email Chain and wanted her consent to disclose her identity.

She attended a meeting with him and his counsel, where she was advised that it was unlikely they could protect her identity and she agreed to have it revealed. [ 75 ] The Email Chain and the Robidoux-Martin February 12, 2008 email exchange were first disclosed to Mr. Kent at the time of Mr. Martin’s questioning on July 14, 2009.

[ 76 ] Mr. Martin did not retain any notes with respect to the preparation of the

Article and was unable to recover emails from his computer due to a computer crash. Subsequently his computer could not be located. Once it was located, it was missing the hard drive. A hard drive believed to be from Mr. Martin’s computer was eventually located, but it was too damaged to recover any information. [ 77 ] On July 20, 2011, Mr. Kent sent a submission for publication entitled “Of Mice and Newsmen” to Mr. Kay at the National Post and Ms. Corbella at the Calgary Herald. It provided Mr. Kent’s views on the journalistic standards that resulted in the publication of the

Article in the context of the British newspaper hacking scandal and discussed the litigation. Neither paper published the submission. [ 78 ] In 2012, Postmedia sold a number of print newspapers and related websites, including the Victoria Times Colonist, to the Glacier Media Group. As part of the sale, Postmedia agreed to continue to provide database access and support for a transition period of a year. As a result, the

Article continued to be able to be accessed on the Glacier Media websites from the Defendants’ SouthPARC database during this transition period. As a result of concerns raised by Mr. Kent to the Glacier Media Group, Postmedia took steps to suppress access to the

Article on the Glacier Media Group websites effective July 31, 2012. The suppression activities had the effect of automatically revising the date shown for the

Article to July 31, 2012, in the SouthPARC database when it was viewed online. [ 79 ] In August 2012, Mr. Kent was advised by an acquaintance who testified at the trial, retired Lieutenant Colonel Robertson, that he saw a reference to the

Article on the homepage of the Ottawa Citizen around July 31, 2012, and clicked on a link which took him to the Article. On August 19, 2012, Mr. Kent submitted an

article to the Calgary Herald and National Post entitled “Compounding Damages,” which discussed the resurfacing of the

Article on the Ottawa Citizen website and the redating of the

Article online. Neither paper published Mr. Kent’s article. [ 80 ] On October 3, 2012, Mr. Kent sent an email to David Watson, the Editor of the Ottawa Citizen, showing screen shots of the

Article on an Ottawa Citizen webpage. He requested that the

Article be removed and that his response entitled “Digital First, Honesty Last”, which provided details regarding the litigation arising out of the Article, be published. Mr. Watson responded within an hour stating “I’m sure it was inadvertent, we’ve requested it be taken down. Will follow up tomorrow.” [ 81 ] Mr. Kent subsequently conducted internet searches on October 3, 2012, at 7:42 p.m. MDT and was unable to locate the

Article on the National Post, Ottawa Citizen, Calgary Herald, Edmonton Journal or other Postmedia websites. [ 82 ] On October 4, 2012, Mr. Kent emailed Mr. Watson inquiring about his response article. Mr. Watson emailed back stating: Hi Arthur, like I said, I don’t know how that

article reappeared after four years but I’m certain it was completely inadvertent or more likely a technical glitch. It was taken down immediately once we were alerted to its presence. I will find out more about what happened and get back to you. No one here has an interest in deliberately posting an old smear against you. Of course we would remove it. I really don’t think a lengthy print rebuttal is proportional to the offence. [ 83 ] A half hour later Mr. Watson sent Mr. Kent a further email stating that “I think its best to have our lawyer involved here. I’ll get back to you shortly once I’ve contacted him.” [ 84 ] The

Article reappeared on the Ottawa Citizen website on October 4, 2012, with a dateline “October 4, 2012 11:54 AM” and on various other Postmedia websites with a similar dateline according to internet searches conducted by Mr. Kent at 2:15 p.m. on October 4, 2012. Later that day the time signature on the

Article was deleted and it was simply datelined “October 4, 2012.” [ 85 ] Mr. Kent conducted searches on various websites later in the afternoon of October 4, 2012, and was again unable to locate the

Article on various Postmedia websites. [ 86 ] On the evening of October 4, 2012, the

Article reappeared on various Postmedia websites including the Calgary Herald, the Gazette, Faceoff, the Edmonton Journal, the Province and the National Post with a dateline of July 31, 2012. [ 87 ] The changes to the dates shown in the online version of the

Article and the alternating ability and inability to access the

Article on October 3 rd and 4 th , 2012, were the result of the automatic redating of the

Article by the Defendants’ SouthPARC computer system when access to the

Article was suppressed and then reinstated and by attempts made to correct the date. [ 88 ] Postmedia decided to suppress all online access to the

Article on November 6, 2012. Thereafter, it was no longer made available online from the Defendants’ database. [ 89 ] Once the

Article was no longer made available online by the Defendants, Mr. Kent replaced the PDF of the

Article on his website with a PDF indicating that the

Article had been removed from internet publication. [ 90 ] Ms. Robidoux was disciplined by the Law Society of Alberta in May 2014 for her conduct while she was Legal Counsel to the Kent Campaign. When media reports dealing with her suspension stated that “Martin willingly gave up” and “readily named” his source, Mr. Martin immediately contacted the CBC and J-Source to request that those statements be corrected. VI. Analysis A. The Test for Defamation [ 91 ] The Supreme Court of Canada summarized the law of defamation in Grant v Torstar Corp , 2009 SCC 61 [ Grant ] at paragraphs 27-33 .

To establish defamation, the plaintiff must prove that the statements in question were defamatory, that is, that they would lower the plaintiff’s reputation in the eyes of a reasonable person, that the statements referred to the plaintiff, and that the statements were communicated to at least one person other than the plaintiff. If the plaintiff establishes these three elements on the balance of probabilities, falsity and damage are presumed.

[92] The onus then shifts to the defendant to establish one or more defences to avoid liability. Statements of opinion and statementsof fact may both attract the defence of qualified privilege, depending on the context in which they were made. Statements of fact that aresubstantially true are subject to the defence of truth or justification. The defence of fair comment may apply to expressions of opinion. Adefendant who establishes all the required elements for the defences of qualified privilege or fair comment may still be liable if theplaintiff can establish malice.

In Grant, the Supreme Court established the new defence of responsible communications on matters ofpublic interest to address concerns that the law of defamation, as it then stood, was inconsistent with the principle of freedom ofexpression under

section 2(

b) of the Charter: Grant at para 126, Canadian Charter of Rights and Freedoms,

Part I of the ConstitutionAct, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. B. Issues to be Determined [93] The Defendants admit two of the three elements required to establish the tort of defamation, that is, that the

Article referred tothe Plaintiff, and that it was published in paper form in the National Post and in the Calgary Herald on February 13, 2008, and was madeavailable online on the National Post and Calgary Herald websites for two to three days following February 12th and 13th, 2008. To theextent that there is a dispute about the extent of online publication, and whether the

Article was published by Postmedia for the purposesof the 1001 Action, that will be addressed below. [94] There are five principle issues to be determined in these actions: i. Is the

Article defamatory? ii. If so, does one or more of the defences of qualified privilege, justification, responsible communication onmatters of public interest, or fair comment apply? iii. If the defences of qualified privilege or fair comment apply, are they defeated by malice? iv. Is publication of the

Article by Postmedia established in the 1001 Action? and v. If defamation is established, what damages should be awarded? C. Is the

Article Defamatory? [95] The generally accepted test of what constitutes a defamatory statement was outlined by Lord Atkin in Sim v Stretch (1936), 52TLR 669 (HL) at 671: A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say,to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelingsof hatred, contempt, ridicule, fear, dislike or disesteem. [96] The test is objective and is judged by the standard of an ordinary, right-thinking member of society.

This standard wasdescribed in Color Your World Corp v Canadian Broadcasting Corp, (ON CA), [1998] 156 DLR (4th) 27 (Ont CA)as a balance between being so low as to unduly stifle free expression or so high as to fail to protect the integrity of a person’s reputation:at para 15. An ordinary, right-thinking member of society is someone “who is reasonably thoughtful and informed, rather than someonewith an overly fragile sensibility. A degree of common sense must be attributed to viewers”: ibid at para 15. [97] The Plaintiff alleges that the

Article contains the following defamatory statements, relying on the plain meaning of the wordsused: (

a) The Calgary Herald headline “Scud stud lands with a thud” and sub-headline “column: Kent’s oversized ego not helping himwith his adopted party”; (

b) The National Post headlines “‘Scud stud’ a dud in Alberta Election” and “Alberta’s Scud Stud a ‘dud’ on campaign trail”; (

c) The Photo Caption: “Former war correspondent Arthur Kent seems to be rubbing a lot of people the wrong way on thecampaign trail. The ex-broadcaster is running in the Alberta provincial election”; (

d) The bylines: “Don Martin, National Post – Monday, Feb. 11, 2008”; “Don Martin, National Post – Tuesday, Feb. 12, 2008; (e) “OTTAWA – He was the Satellite Dish and the Desert Fox before they christened him with the nickname that stuck: TheScud Stud”; (f) “But Alberta Conservatives have been bestowed problem candidate Arthur Kent with a less-flattering designation as henoisily blusters his way through their ailing election campaign: The Dud Scud”; (g) “As Iraq’s low-tech missiles whistled toward Kuwait in early 1991, Kent became a fixture of television eye candy formillions of women as a hunky bear-witness reporter covering the conflict’s kickoff.

He’d already made a name for himself as a warcorrespondent, but there was something about Mr. Kent waving a gas mask and warning his New York editors that the scuds wereincoming for real which got female hearts pumping and men pondering broadcast journalism as a great way to attract groupies.Entertainment Weekly magazine reflected the mush and gush of Kent at the peak of his fame. “he’s able to dodge all missiles in a singlebound, speed his image around the world in a flash – and look infuriatingly good doing it.” My how times have changed.

Not only hasKent become one of those “what ever happened to...?” trivia questions, but he’s striving to become a lowly provincial politician far fromthe Big Apple”;

(h) “And he’s made a serious rookie mistake by forgetting elections are a battle where he’s a mere infantry private who exists only to follow orders”; (i) “Senior campaign strategists in Alberta cannot recall a worse case of a shooting star candidate, someone so self-absorbed that Kent has actually mocked the party for failing to treat him with a desired level of reverence”; (j) “I’ve never seen anyone who is so utterly in love with themselves, confided a veteran of half a dozen elections, whose sage advice was rejected by Kent as coming from ‘Jurassic Park’”; (k) “But this is not a genetic flaw in a family dynasty of television journalists.

In an eerie parallel, Arthur’s brother Peter Kent is also fighting for a seat in a Liberal-held riding, his goal being the federal riding of Thornhill, Ont. To contrast their styles, you only need to visit their websites. While Arthur Kent’s site is a homage to himself with honourable mentions to the party, Peter Kent’s website is full of Conservative policy praise and kudos to cabinet ministers with very little space devoted to his heady days as an international television correspondent.

It doesn’t take a crystal ball to spot the future contrasts for political poster boy Peter and campaign bad boy Arthur if they both with their seats. Peter Kent is heading for a star position as a cabinet minister in Stephen Harper’s government”; (l) “Arthur Kent is doomed to serve as a basic backbencher assigned the worst office in a legislature where he will be assigned mind-numbing committees with no chance for parole”; (m) “The Scud Stud will land in politics with a thud.

He should pray to lose so his ‘star’ qualities” will find another place to shine”; (n) “Insiders gleefully describe how all of Kent’s brochures blew off a pick-up on the Deerfoot Trail, tying up traffic while workers scurried between cars retrieving thousands of pamphlets...”; (o) “Last week, he unleashed a tirade against the Conservative campaign when Premier Ed Stelmach cancelled an appearance at a Kent fundraiser. Perhaps Mr. Stelmach got wind of Mr. Kent’s planned speech topic – Afghanistan.

Only vigorous arm-twisting by his campaign team, who pointed out the Taliban insurgency wasn’t exactly a provincial election issue, convinced Mr. Kent to refocus on constituency concerns”; (p) “Even so, Mr. Kent was severely miffed, despite having two cabinet ministers sent in as Stelmach substitutes. “They want nothing but my name, sadly”, he lamented to the Calgary Herald”; (q) “This and other off-script comments have put campaign morale into a tail spin and complicated volunteer recruitment.

E- mails exist which include a threat by Kent to sue his own constituency association for “unwelcome intrusions” in events where he was the star attraction”; (r) “Campaign manager Bruce Thorpe finally warned Kent that half his team was ready to quit if the candidate didn’t start behaving. ‘Not yet’ is Mr. Thorpe’s answer to my question on whether anybody has actually resigned”; (s) “Mr.

Kent’s handlers insist the worst is over and point out the candidate was aggressively doorknocking on Tuesday, an overdue recognition that winning the Calgary Currie seat is going to require even a big name to mix it up with mere mortals”; (t) “Even so his financial agent was rumoured to be on the verge of quitting and Mr. Kent declined an invitation to attend the premier’s Calgary event on Tuesday”. [ 98 ] The Plaintiff also alleges that the

Article contains the following defamatory inferences: (

a) That Mr. Kent’s career as an international news correspondent was insubstantial and/or short-lived; (

b) By omission, that Mr. Kent had not been a regular, award-nominated contributor to Canwest’s own newscasts and newspapers, which in fact is the case; (

c) That Mr. Kent was a journalistic has-been rather than a valued commentator on international affairs who was praised by the corporate defendants’ own editors as recently as six weeks prior to the publication of the Article; (

d) That Mr. Kent was an arrogant and high handed individual who was unworthy of trust and public confidence; (

e) That Mr. Kent threatened to sue the Calgary Currie PC association, when in fact the email messages referred to by the

Article include no mention of a lawsuit, and instead show that Mr. Kent was only seeking to prevent the illegal transfer of funds raised at a campaign period event to the Currie PC association, in violation of the Election Finances and Contributions Disclosure Act , RSA 2000, c E-2; (

f) That Mr. Kent’s election campaign was unorganized and incompetent; (

g) That Mr. Kent was unable to run an effective election campaign; and (

h) That Mr. Kent was lacking the support of members of his campaign team and the Alberta Progressive Conservative Party as a whole. [ 99 ] The Defendants deny that the

Article is defamatory and submit that it would not have a significant impact on Mr. Kent’s reputation as a journalist or a political candidate from the perspective of someone who is reasonably thoughtful and informed and that it would not affect Mr. Kent’s reputation as a vocal outspoken candidate who was openly critical of his own party. They are correct that the

Article must be evaluated in the context of Arthur Kent’s reputation immediately prior to its publication and in light of the other articles that had been published in the preceding days. Those articles contained quotes from Mr. Kent and identified tensions that had

arisen between Mr. Kent and the PC Party Campaign Team as a result of his criticism of prior PC Party behavior, policies such as theroyalty regime review, the Premier’s failure to attend the Currie Constituency breakfast meeting and the lack of communication from thePremier’s staff. The question to be determined is whether, and if so to what extent, the

Article caused damage to Mr. Kent’s reputation inthis context. [100] The February 8, 2009 MacGregor

article talked about Mr. Kent’s door-knocking and how he pushed the theme of the need tomove on after the Klein era. It described Mr. Kent stating that Premier Stelmach understands “the need for new faces and ideas.” [101] The Canadian Press February 9, 2009

article focused on concerns that Mr. Kent was expressing about Premier Stelmach’sstaff’s “one-way communication” and “talking down to constituents and candidates,” but noted that “Mr. Kent said both Mr. Stelmachand the party still have his ‘absolute’ support.” [102] Several of the articles included quotes by Mr. Kent with respect to how he perceived that he had been treated by the PC Party.For example, Don Braid stated in his February 9, 2009,

article that Kent was “harshly critical of Stelmach’s campaign team” and “fumedabout the lack of communication from the Stelmach campaign team and said he’s being used for his star power.” It quoted Mr. Kent assaying “[t]hey’ve asked me about nothing. They want nothing but my name, sadly.” It outlined his perspective that “[t]hey should beasking us what we’re hearing on the doorsteps” and that “[i]f we really want to rebuild this government we have to do things differently.” [103] The February 9, 2008 Fekete/Braid/Markusoff

article stated that Mr. Kent “chided the Tory leader for failing to attend abreakfast for party supporters” and “fumed about the lack of communications from the Stelmach campaign team and said he’s beingused for his star power”. It quoted Mr. Kent saying “You don’t just call the bustling heartland of the most exciting city in North Americaand say, ‘No we can’t make it’.” [104] The February 11, 2008 Gordon Kent

article focused on various challenges that Premier Stelmach was facing, including Mr.Kent’s criticism that the party was using him for his star power, but described the Premier as philosophical. [105] The February 12, 2008 Braid

article entitled “Scud Stud or loose cannon?” quoted an unidentified “furious insider” as notingthat Mr. Kent had the perfect nickname as “the Scud missile was notorious for having no internal guidance system and missing its targetby a mile.” It predicted that if Kent was elected “he’ll be sitting at the back of the legislature on a canvas camp stool.” [106] The February 12, 2008 Cryderman

article entitled “Kent lashes ‘amateurish’ Tory inner circle” described unidentified insiderswho characterized Mr. Kent as a “rogue candidate” who does not seem to understand that politics is a “team game.” However, it alsonoted that Mr. Kent stated that he supports Premier Stelmach entirely and that “he has received more support from fellow party membersthan criticism.” [107] The relevance of the previous articles is they assist in establishing the benchmark of what Mr. Kent’s reputation was at the timethat the

Article was published so that it can be determined whether, and if so to what extent, the

Article caused incremental damage tothat reputation. While the prior articles identified Mr. Kent’s concerns with the treatment he was receiving from the PC Party, the Articleby Don Martin raised three new negative issues with respect to Mr. Kent that had not appeared in the previous articles: i. The

Article inferred that Mr. Kent was a journalistic has-been. The previous articles had described Mr. Kent as a “high profile candidate” who had “gained fame as a Canadian and US TV reporter” orwho “became world-famous as the ‘Scud Stud’”. The first seven paragraphs of the

Article describe how Mr. Kent went from “The ScudStud” to the “Scud Dud”, refer to “how times had changed” since he had made a name for himself as a war correspondent and “eyecandy for millions of women,” and noted that he had now “become one of those ‘what ever happened to…?’ trivia questions” who was“now striving to become a lowly provincial politician far from the Big Apple.” ii. The

Article characterized Mr. Kent as arrogant with a huge ego. The

Article referred to Mr. Kent as a “shooting star candidate, someone so self-absorbed that Kent has actually mocked the party forfailing to treat him with a desired level of reverence.” It quoted a “veteran of a half a dozen elections” as confiding “I’ve never seenanyone who is so utterly in love with themselves.” It stated that Mr. Kent was “aggressively door-knocking on Tuesday, an overduerecognition that winning the Calgary-Currie seat is going to require even a big name to mix it up with mere mortals.” The Articledescribed Kent’s website as “a homage to himself with honorable mentions to the party.” iii. The

Article stated that Mr. Kent’s behavior was detrimentally affecting his own campaign team. The previous articles had focused on the policy differences between Mr. Kent and the PC Party platform and his frustration with theStelmach Campaign Team rather than on internal issues within the Kent Campaign team. The

Article states that Mr. Kent’s commentsare responsible for putting “campaign morale into a tailspin and complicat(ing) volunteer recruitment”. It notes that his campaignmanager warned him that “half his team was ready to quit if the candidate didn’t start behaving” and that “his financial agent wasrumoured to be on the verge of quitting”. [108] While some authorities suggest that the court should first identify the particular statements in an

article that are defamatory,others caution against “the dissection of an overall inoffensive whole into incriminating fragments”: O’Malley v O’Callaghan, (AB KB), [1992] 89 DLR (4th) 577 (Alta QB) at paragraph 15. The Defendants submit that when assessing thepublication, the trier of fact must take it as a whole, and not perform undue dissection of the words contained therein. [109] The overall tenor of the

Article is that Arthur Kent is a politically naïve arrogant has-been journalist with a huge ego whoseelection campaign is in disarray and who is doomed to become an ineffective MLA if elected. It is markedly different than the otherarticles published about Mr. Kent and his campaign in the preceding couple of days, which were more balanced and focused ondifferences between Mr. Kent and the PC Party. None of the prior articles contained the harshly critical personal tone used in the Articleor focused on the three new issues raised in the Article.

[110] Courts have long recognized that politicians can expect to be subjected to “searching criticism” as was noted by Danyliuk J inVellacott v Saskatoon Starphoenix Group Inc, 2012 SKQB 359 at paragraph 48: Public figures, such as politicians, bear many burdens. One is that they are subject to criticism, castigation and insults, some even madein bad taste or replete with vulgarity. Still, the law has long held that not all such statements are defamatory, particularly with respect tothose holding public office. A public official can expect that his or her public conduct will be subject to searching criticism.

But the legaltest must still be applied to determine whether a publication is "searching criticism" or defamation: Vander Zalm v Times Publishers, aDivision of F.P. Publications (Western) Ltd (1980), (BC CA), 109 DLR (3d) 531 [1980] 4 WWR 259 (BCCA; Lundv Black Press Group Ltd, 2009 BCSC 937, [2009] BCJ No 1374 (QL). [111] I find that the Article, when read as a whole, would cause right-thinking members of society to think less of Mr. Kent, even inthe context of the articles that had been written in the preceding days. While some of the statements in the

Article may be less seriouswhen examined in isolation, I am satisfied that the statements in paragraphs 97(a), (b), (f), (g), (i) – (

t) viewed in the overall context ofthe

Article are defamatory and that the

Article contains the inferences in paragraphs 98(c), (

d) and (h), which are also defamatory. As aresult, the onus shifts to the Defendants to establish that one or more of the defences apply in order to avoid liability for writing andpublishing the Article. D. Defences 1. Statements of Fact v Comments [112] The

Article contained both factual statements and comments. Both factual statements and comments may be subject to thedefence of qualified privilege. Factual statements may be covered by the defences of justification or responsible communication in thepublic interest. The defence of fair comment may apply to comments that express opinions. [113] The

Article was written by Don Martin, a long-time political columnist with the Calgary Herald and the National Post. It waspublished under his byline and was accompanied by his photograph. As a column, it was presented differently in the print version than anews story, as the columns were not right justified and the headline had a lighter typeface. However, some of these nuances would notlikely be immediately apparent to the average reader, as the

Article appeared on the third page of the Calgary Herald under the heading“Top News,” rather than on an editorial page. [114] There was expert evidence presented by both sides describing the differences between columns that contain comments and newsarticles. Whether defamatory statements are contained in a column or in a news

article is not determinative, although it may be helpful inassessing how those statements should be viewed.

When a column contains both comments and factual statements, each would be subjectto the applicable defences recognized at law for that type of statement. [115] Binnie J’s dicta in WIC Radio Ltd v Simpson, 2008 SCC 40 [WIC] provides helpful guidance to determine which statementsqualify as factual statements or comments at paragraph 26: In Ross v New Brunswick Teachers' Assn (2001), 201 D.L.R. (4th) 75, 2001 NBCA 62, at para 56, the New Brunswick Court of Appealcorrectly took the view that "comment" includes a "deduction, inference, conclusion, criticism, judgment, remark or observation which isgenerally incapable of proof." Brown's Law of Defamation in Canada (2nd ed. (loose-leaf)) cites ample authority for the proposition thatwords that may appear to be statements of fact may, in pith and substance, be properly construed as comment.

This is particularly so inan editorial context where loose, figurative or hyperbolic language is used (Brown, vol. 4, at p. 27-317) in the context of political debate,commentary, media campaigns and public discourse. See also, R. D. McConchie and D. A. Potts, Canadian Libel and Slander Actions(2004), at p. 340. 2.

Qualified Privilege [116] Defamatory statements of fact or comments can be protected by the defence of qualified privilege, unless the plaintiff showsthat the statement was published with actual or express malice. [117] Defamatory statements are protected by qualified privilege where they are “fairly made on a privileged occasion by a persondischarging some public or private duty, or… to pursue or protect some private interest, provided it is made to a person with a corresponding interest in receiving it”: Brown on Defamation, 2nd ed, (Toronto: Carswell, 2014) at para 13.1 [Brown on Defamation].The duty can be legal, social or moral.

The test is whether people of ordinary intelligence and moral principle, or right minded people,would consider it a duty to communicate the information: ibid, see also Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130 at para 143 [Hill].

However, the Supreme Court noted in Grant that the threshold to establish qualifiedprivilege is high and that the defence has been of little assistance to media organizations because “qualified privilege has traditionallybeen grounded in special relationship characterized by a ‘duty’ to communicate the information and a reciprocal ‘interest’ in receiving it.The press communicates information not to identified individuals with whom it has a personal relationship, but to the public at large”:Grant at paras 34-37. [118] The Defendants submit that they had a duty to inform the electorate about a candidate running for election and that this bringsthem within the scope of the defence of qualified privilege.

The Defendants rely on a few cases where Courts have applied this defenceto a member of the media. In Grenier v Southam Inc, (1993) 41 ACWS, (3d) 268, the defendant newspaper published an articlesuggesting ways that family members could help rescue individuals who were held by a particular religious cult. In Silva v Toronto StarNewspapers Ltd, (ON SC), 1998 167 DLR (4th) 554, the Toronto Star published an

article about how seniors werebeing subjected to threats and harassment in certain subsidized housing projects. [119] It would be a significant extension of the law of qualified privilege to apply it in the circumstances of this case, an extensionthat would be neither appropriate nor desirable. The cases relied upon by the Defendants predated Grant, in which the Supreme Court of

Canada declined to expand the law of qualified privilege and instead established the new defence of responsible communication on matters of public interest: at paras 88-95. The Defendants have failed to establish that they had a sufficient duty to publish the

Article for the defence of qualified privilege to apply. 3. Justification [ 120 ] The defence of justification is available when the defendant can establish that the statement was substantially true. However, this defence is “often of little utility to journalists and those who publish their stories” as “a journalist who has checked sources and is satisfied that a statement is substantially true may nevertheless have difficulty proving this in court, perhaps years after the event”: Grant at para 33 .

While this defence was plead by the Defendants, it was neither abandoned by them prior to or at trial nor was it raised in argument. To the extent that this defence may be applicable with respect to some of the statements of fact in the Article, it will be considered below. 4. Responsible Communication on Matters of Public Interest [ 121 ] The Supreme Court of Canada in Grant recognized that the law of defamation must strike an appropriate balance between the guarantee of freedom of expression in

section 2(

b) of the Charter and the need to protect a person’s reputation from unjustified assault: at paras 1-3.

The Court referred to Binnie J’s statement at paragraph 2 in WIC that: [a]n individual’s reputation is not be to treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling debate on matters of public interest: Grant at para 41 . [ 122 ] To address the concern that the law of defamation as it then stood afforded “no protection for statement on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true,” the Court established the defence of responsible communication on matters of public interest: ibid at 65.

It applies when: 1) The publication is on a matter of public interest, and: 2) The publisher was diligent in trying to verify the allegation, having regard to: a. the seriousness of the allegation; b. the public importance of the matter; c. the urgency of the matter; d. the status and reliability of the source; e. whether the plaintiff's side of the story was sought and accurately reported; f. whether the inclusion of the defamatory statement was justifiable; g. whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ("reportage"); and h. any other relevant circumstances: ibid at para 126. [ 123 ] In applying the first part of the test, the issue is whether the

Article was on a matter of “public interest.” To be of public interest, the subject matter must invite public attention or be about matters of substantial concern to the public, “because it affects the welfare of citizens, or has considerable public notoriety or controversy”: ibid at para 105. The court must consider that “[s]ome segment of the public must have a genuine stake in knowing about the matter published”: ibid . [ 124 ] The

Article dealt with a political candidate in the course of a provincial election, and addressed his relationships with the PC Party, who he was seeking to represent, and with the members of his own campaign team. The

Article easily qualifies as dealing with matters of public interest. [ 125 ] The second part of the test requires the Defendants to “show that [they were] responsible, in that [they were] diligent in trying to verify the allegation(s), having regard to all relevant circumstances”: Grant at para 98 . This requires consideration of the factors enumerated in Grant .

a) The Seriousness of the Allegation [ 126 ] The Supreme Court explained “that the degree of diligence required in verifying the allegation should increase in proportion to the seriousness of its potential effects on the person defamed”: Grant at para 111 . The severity of the sting from a defamatory statement is not the same across cases, and publication of more serious allegations, such as corruption, criminality or intrusions on reasonable expectations of privacy, demand more thorough verification on the part of the media defendant: ibid . [ 127 ] The defamatory allegations in the

Article focused on the Plaintiff’s ego and the dysfunctionality of his campaign. They were certainly not as serious or damaging as allegations of corruption or criminality, however, they could (and perhaps did) affect Mr. Kent’s ability to fundraise, to recruit volunteers and to convince members of the public to vote for him within the tight time frame of less than a month remaining until the election. Such allegations required more than minimal verification on the part of the Defendants.

b) The Public Importance of the Matter

[ 128 ] Another aspect to be weighed is the public importance of the subject matter. The Supreme Court explained that “not all matters of public interest are of equal importance”, noting that “grave matters of national security… invoke different concerns from those of the prosaic business of everyday politics. What constitutes reasonable diligence with respect to one may fall short with respect to the other”: Grant at para 112 .

The more important the matter, the more the trier of fact may conclude that publication was responsible and “in many cases, the public importance of the matter may be inseparable from its urgency”: Grant at para 112 . [ 129 ] The public importance of the allegations about Mr. Kent in the

Article in the context of the election campaign was moderate and fell closer on the spectrum to the “prosaic business of everyday politics” than “grave matters of national security”, as the

Article largely focuses on Mr. Kent’s internal campaign issues and conflict with the PC Party during a provincial election: Grant at para 112 .

c) The Urgency of the Matter [ 130 ] As the “news is often a perishable commodity,” this factor calls for balancing the need for timely reporting of important news and the irresponsible reporting of a defamatory scoop: Grant at para 113 . The question is “whether the public’s need to know required the defendant to publish when it did”: Grant at para 113 . This factor wi

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