Monday, December 26, 2011

Is the Conservative Party of Canada still One Big Happy Family with qualified privilege?

Good Day Readers:

Found this interesting analysis on Law is Cool ( As the Statements of Defence are filled it will be interesting to observe if any Defendants offer public apologies so as to mitigate possible future damages. Even more revealing, will the CPC use one umbrella law firm or each of those named in the Statement of Claim go their separate way? Will taxpayers be on the financial hook for any of their legal bills?

Should this litigation ever make it to trial imagine the dirty political laundry that will get washed in public!

Clare L. Pieuk
Helena Guergis Sues Harper, CPC and Cassels

By Omar Ha-Redeye
Thursday, December 23, 2011

When former Conservative Party of Canada (CPC) Member of Parliament, Helena Guergis, filed a claim yesterday against Prime Minister Harper and the CPC at the Ontario Superior Court, the story made headlines.

What didn’t attract as much attention is that the claim also included as defendants Arthur Hamilton and his law firm, Cassels Brock & Blackwell LLP,

2. The Plaintiff claims as against the Defendant, Arthur Hamilton (“Hamilton”), for conspiracy, defamation, breach of fiduciary duty, breach of duty of good faith, breach of confidence, and negligence.

3. The Plaintiff claims as against the Defendant, Cassels Brock & Blackwell LLP (“Cassels Brock”), for conspiracy, defamation, breach of fiduciary duty, breach of duty of good faith, breach of confidence, and negligence …

14. Hamilton is an individual and a lawyer with the Toronto office of the Cassels Brock law firm who, at all material times, was the lawyer for CPC and Harper.

15. Cassels Brock is a limited liability partnership and law firm with offices in several major Canadian cities that, at all material times, was acting as legal counsel for CPC and Harper.

The allegations against Hamilton include a claim that he received defamatory statements from Derrick Snowdy, a private investigator who appears to have played a role in the fiasco involving Guergis’ husband, Rahim Jaffer. The allegations then state that Hamilton conveyed this information to Prime Minister Harper and others named in the claim (or alternatively did not make these statements, as the claim indicates).

It’s difficult to see how this function, operating in the capacity as a lawyer, could not attach some form of privilege. Absolute privilege may be available to some of the other defendants [see New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)] and the defence of qualified privilege may attach to statements made by others. Lewis N. Klar stated in the Ottawa Law Review ((1991) 23 Ottawa Law Review 177-26),

The right of politicians to communicate information to the public has been protected by the defence of qualified privilege in recent defamation cases. In Parlett v. Robinson (393), and Loos v. Robbins (394), Courts of Appeal have upheld the right of a Member of Parliament in the former case, and a Cabinet Minister in the latter, to make statements to the public through the media, which although defamatory were made in furtherance of their public duties. These decisions demonstrate a greater latitude to the types of statements which will be protected, particularly with regard to the breadth of their publication, than had been the case in earlier Canadian law (395).

In Leverman v. Campbell Sharp (396), Lambert J.A. held that the defence of qualified privilege will be defeated if the defendant publishes a statement which is not his honest belief. Although carelessness in forming the belief will not defeat the defence, carelessness in publishing it, so that the statement does not represent one’s views, will.
In order to overcome qualified privilege there must be an element of malice, as explained in Hill v. Church of Scientology of Toronto,

144. The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at page 149.

145. Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at page 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pages. 323-24, and Netupsky v. Craig, [1973] S.C.R. 55, at pages. 61-62.

146. Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. See The Law of Defamation in Canada, supra, at pages 13-193 and 13-194; Salmond and Heuston on the Law of Torts (20th ed. 1992), at pages 166-67. As Loreburn E. stated at pages. 320-21 in Adam v. Ward, supra:

. . . the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.

147. In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given. For example, in Douglas v. Tucker, [1952] 1 S.C.R. 275, the defendant, during an election campaign, stated that the plaintiff, who was the officer of an investment company, had charged a farmer and his wife an exorbitant rate of interest causing them to lose their property. The plaintiff maintained that the allegation was without foundation. In response, the defendant asserted that the plaintiff was facing a charge of fraud which had been adjourned until after the election. This Court held that the defendant had an interest in responding to the plaintiff’s denial, thereby giving rise to an occasion of qualified privilege. However, it ruled that the occasion was exceeded because the defendant’s comments went beyond what was “germane and reasonably appropriate” (page 286).

The other claims against Hamilton are also worth highlighting because it involves his firm,

45. On April 8 and 9, 2010, and all material times, Hamilton and Cassels Brock owed a fiduciary duty and duty of good faith to the Plaintiff, and were obligated to act with regard to the Plaintiffs interests and keep and protect the Plaintiffs confidences as a result of the relationship that existed as between the Plaintiff, Hamilton and Cassels Brock, including as a result of the legal advice that had been provided by Hamilton and Cassels Brock to the Plaintiff on or about April 7, 2010 at a time when the Plaintiff was vulnerable and dependent upon Hamilton and Cassels Brock and relying upon their professional advice.

If Cassels was indeed representing both Guergis and Harper/CPC at the same time, and was providing advice to Harper/CPC that was detrimental to Guergis, it is difficult to see how there could not be a conflict of interest,

48. In addition, Hamilton and Cassels Brock failed to avoid a conflict of interest whereby the interests of their other client(s) were promoted at the expense of the Plaintiffs interests, resulting in breaches of their fiduciary duties and duties of good faith owed to the Plaintiff.

Of course the nature of the advice, and whether they attempted to remove themselves from the record, are other factors that may come into play, especially since Harper made a statement soon after,

72. Also on or about April 9, 2010, Harper made the following public statement: Last night, my office became aware of serious allegations regarding the conduct of the Honourable Helena Guergis. These allegations relate to the conduct of Ms. Guergis and do not involve any other minister, MP, senator or federal government employee. I’ve referred the allegations to the Conflict ofInterest and Ethics Commissioner and to the RCMP. Under the circumstances, I will not comment on them further.

At the very least the lawsuit will finally provide information about the inner workings of Harper’s Conservative Party, which has been the target of general accusations of unilateralism and squashing any dissent. The lawsuit may eventually demonstrate that not unlike the Liberal Party before them, infighting is an unfortunate reality of Canadian political Parties once established in power. While this revelation might be refreshing to those who mistakenly believed it to be a problem plaguing Liberal dynamics, it may be less than inspiring to a generation who has been largely apathetic and removed entirely from public political discourse.

The Statement of Claim is below.


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