ArthurKent.ca Blog

Cleaning Windows

2012-04-24T06:00:00.000-06:00

There’s a kind of mire obscuring our view of Alberta, Canada’s energy province.

It’s the residue of a tired, underachieving government, a political party that has been in power for far too long, forty one years and counting.

Though capable of engineering another election win, the PC party machine is ring-fenced by appointees and patronage seekers, a network of dependants whose blind allegiance insulates the party leadership, cabinet and caucus from the dreams and everyday needs of Albertans.

This website doesn’t claim to have all the answers for Alberta's quest for a healthy political culture, free of intimidation and the politics of fear.

But we can do a little window cleaning.

We can wipe away some of the mire, and reveal how the PC party leadership continues to do business in the guise of change.

Could there be a more fitting time to encourage this discussion? The PCs have once again wooed voters with promises that the longest governing political brand in Canada has renewed itself and changed for the better.

Six months ago, on October 1, 2011, some 78,000 Albertans bearing Progressive Conservative membership cards, about 2% of the province's population, selected a new party leader.

That’s about half the number of party members who turned out six years ago to vote in the last PC leader, Ed Stelmach. Ed's eventual resignation as premier, the culmination of long years of gaffes, red ink and policy blunders, led to the 2011 leadership election.

Despite the low turnout, the narrow victor of the contest, Alison Redford, became by default the 14th premier of Canada’s energy province.

Alison was my running mate in the last Alberta election, in 2008. Ms. Redford was the PC candidate in Calgary Elbow, while I ran next door in Calgary Currie.

As you’ll see in these pages, our electoral fortunes played out very differently, the result of my attempts to advise Mr. Stelmach before it was too late that he and the party leadership were headed in the wrong direction.

The party’s slogan in 2008 was not a lot different than Alison’s mantra during her leadership run: Change That Works For All Albertans.

The words rang hollow, both then and throughout Premier-elect Redford's three years as Justice Minister under Mr. Stelmach, supporting his government’s unpopular policies.

Now, as premier, will Alison finally confront the PCs penchant for governing mainly for the benefit of the connected few?

Her performance has been discouraging. Instead of purging her government of notorious patronage players, she has reappointed them. Lobbyists, deal makers and fixers continue to enjoy direct access to the heart of Progressive Conservative power.

Once again, with yet another "new" government, the PCs are talking to themselves, and the language is entitlement.

Which is where this website picks up the narrative.

You can follow the story from the earliest days of the court actions chronicled in these web pages by clicking on our first posting in our archive on October 20, 2008.

Or start with “Welcome to the Machine” from October 27, 2008 for a sequential account of this candidate’s experience on the campaign trail with the once-great Progressive Conservative Party of Alberta.

And keep an eye on our home page for all the latest developments as the actions proceed before Alberta’s Court of Queen’s Bench.

Martin Source Felt "Sick" and "Used"

2012-04-10T07:04:00.014-06:00

One of Don Martin’s sources says she felt “embarrassed and used and stupid” after reading his article attacking her candidate in the 2008 Alberta election. The same article is still being widely published today, during the 2012 campaign.

Documents filed with the Court of Queen’s Bench in Calgary show that my former Legal Counsel and Official Agent, Kristine Robidoux, Q.C., stated under oath that she took immediate exception to Martin’s article, which was published midway through our 2008 campaign.

Robidoux, Q.C. is one of Martin’s co-defendants in the $8 million defamation action Kent v. Martin, National Post, Canwest et al.

Relevant transcript pages from Robidoux, Q.C.’s questioning are included in an affidavit, filed in the Court of Queen's Bench on March 29, 2012, supporting my motion to have the corporate media defendants found in contempt of court for disrupting the action’s discovery schedule, which has been established by court order.

The motion also seeks an order to compel the media defendants to answer questions on their defence of responsible journalism.

Documents filed with the court show that Robidoux, Q.C. stated that when speaking to Martin she hoped to be “limiting the damage” she feared his article might do. Instead, she said:

“When I saw the piece, I saw that that was -- that that really didn't translate into his story, and I felt sick about it.”

Defendant Kristine Robidoux, Q.C.

In further questioning, Robidoux, Q.C. stated:

“I felt that the article that he published was not in line with what I had been led to believe was going to be published, and I felt physically sick over it. I felt embarrassed and used and stupid.”

When asked if she had never taken steps to have the Martin article removed from its continuing publication on the internet, Robidoux, Q.C. stated:

“I would love for that article to come off of whatever website wherever it possibly is. I have not seen it, but I don't care about it, and I wish it were off the Internet, if it's true that it's in fact still on there.”

More than four years after its first publication, the Martin article continues to be republished internationally each day during another Alberta election.

The impugned article is displayed with present-day news alerts and advertising on at least 35 websites now owned by Postmedia Network Inc, or recently sold by Postmedia to Glacier Media Inc.

My March 29 affidavit, together with a second affidavit filed with the Court of Queen’s Bench on April 5, 2012, will also support an injunction application seeking an order to compel Postmedia to cease publication of the article.

The April 5th affidavit states that Martin’s sources take issue with the content of the article, and that the article is:

“…at odds with the Supreme Court of Canada’s tests for “responsible communication,” otherwise known as “responsible journalism,” established in the Court’s ruling in Grant v. Torstar Corp, 2009 SCC 61…”

At an upcoming hearing in Calgary, the court will rule on my application that the corporate media defendants, and their representative, Calgary Herald editor in chief Lorne Motley, be ordered to answer questions on responsible journalism.

Documents filed with the court show that the media defendants' lawyers have repeatedly objected to this line of questioning, despite their use of responsible journalism in Statements of Defence in both Kent v. Martin, National Post, Canwest et al, and the separate action Kent v. Postmedia Network Inc., National Post Inc., Paul Godfrey and Gordon Fisher.

The media defendants' objections have occurred as the discovery process reveals more information about relationships between the political and corporate news media defendants.

For example, as the corporate representative of the media defendants in Kent v. Martin, National Post, Canwest et al, Lorne Motley swore a Supplemental Affidavit of Records on July 15, 2010. His affidavit states that he had personal knowledge that:

“Since I swore my Affidavit of Records, the Defendants have come into possession custody or power of additional records that relate to matters in issue in this action and that I do not object to producing for inspection…”

The additional records produced were hundreds of pages of emails provided to the media defendants by my former campaign manager, Bruce Thorpe, a PC party activist. Last year, Thorpe was named a co-defendant in the lawsuit. The emails produced by the media defendants became known in court filings as “the Thorpe Disclosure.”

Although Motley was the corporate officer who swore the Thorpe Disclosure onto the record, documents filed with the court show that he has stated in questioning that he has no information as to how the emails came into the possession of his employers and their lawyers at the Calgary law firm of Parlee McLaws, and that he did not review the records before swearing the affidavit.

My lawyer Michael Bates questioned Bruce Thorpe on the matter during Thorpe's discovery on January 25 and 26, 2012. Relevant pages of Thorpe’s transcript are included in my March 29, 2012 affidavit.

When Thorpe was asked how his emails came into the possession of the media defendants’ lawyers, Thorpe answered:

“I was approached to have a meeting with them, and I didn't know any better, so I had a meeting with them.

“Through the course of the meeting, we discussed some items, and because they kept asking questions -- and, to be honest, I didn't want to be bothered anymore -- I went through all my emails, and the ones that I thought were important, I gave them to them. And I thought I wouldn't have anything more to worry about dealing with this.”

Thorpe was asked: “Who was it that approached you?”

Thorpe answered: “Bill Smith.”

Bill Smith is the president of Alberta’s Progressive Conservative party. He was named as a defendant in Kent v. Martin, National Post, Canwest et al in June of 2011.

During the 2008 election campaign, Smith was the PC's Calgary vice-president. Documents filed with the court show Smith was a recipient and sender of messages produced in the Thorpe Disclosure.

PC president Bill Smith

Thorpe has stated that delivery of his emails to lawyers for the media defendants, Scott Watson and Peter Cline, took place after the meeting at Parlee McLaws’ Calgary office on March 18, 2010, according to court documents.

Bill Smith, who is a lawyer and member of the Law Society of Alberta, was present for the start of the meeting, Thorpe stated. Smith then left, according to Thorpe, leaving him alone with Watson, Cline and a paralegal. Regarding the media defendants’ lawyers Thorpe stated:

“The -- they were looking for specific information. I decided to then go through my emails, as I mentioned, because I didn't want to be bothered anymore with this. Here you go, so they're not coming back to me every couple weeks, What about this? What about that?”

Bill Smith was questioned under oath on March 15 and 16, 2012. Relevant pages of Smith’s transcript are included in my March 29, 2012 affidavit, filed with the court. When Smith was asked why he approached Thorpe, Smith answered:

“I think there was an inquiry from somebody as to if there were any records left over from the campaign.”

Smith was asked: “Do you remember who it was that made that inquiry?”

Smith replied: “I believe it was Scott Watson. I had articled at Parlees.”

As a journalist and private citizen before the courts, I have been unable to find any other previous or ongoing Canadian legal proceeding in which lawyers acting for a major news media organization have produced the documents, correspondence or records belonging to an activist member of a governing political party, with the aid of the party's president, and sworn onto the court record by a member of senior editorial management.

The media defendants’ directives on journalism ethics, policy and practice, as produced in these actions, include provisions on the subject of conflict of interest, with particular emphasis on political figures, lobbyists and "groups."

For example, the Calgary Herald Editorial Code of Ethical Policies and Practices states under “CONFLICT OF INTEREST, GIFTS AND FREEBIES”:

“Newsroom employees are encouraged to be active members in the community. They are also obliged by journalistic ethics to remain free from formal associations that might influence, or appear to a reasonable person to influence, the editorial independence of themselves and the Herald in a negative fashion…

“Primarily, the associations in question involve groups regularly involved in and associated with the pursuit of political power and lobbying to influence public policy.”

The Thorpe Disclosure is remarkable for another reason. Bruce Thorpe, who provided the emails to the media defendants, describes the Martin article as: “not accurate.”

Thorpe has taken exception to the article both in a document produced by the media defendants and in questioning, according to documents filed with the court.

An email from the Thorpe Disclosure, sent to me by Thorpe in November of 2008, acknowledges that Martin’s claim in the impugned article that “half” our campaign team had threatened to resign was false. Thorpe said only “a couple” of people had voiced that intention. He also wrote:

“I do agree the other two main points should have been confirmed before written. Sadly, I have seen this sort of reporting too many times over the years…”

Court documents show that in questioning, Thorpe stated that when Martin called him prior to the publication of the article:

“He did ask me about -- the only thing I do remember is the question about Stephen Doolan and the treasurer, which threw me for a loop, because Stephen and I had been in contact -- constant contact, and I had heard nothing about him wanting to resign, so…”

Thorpe stated, according to documents filed with the court:

“I don't remember the exact details. I just remember him asking me whether or not -- along the lines of whether or not the treasurer was -- the CFO was going to resign, and I said, No.”

By contrast, Martin’s article states:

“Even so, his financial agent was rumoured to be on the verge of quitting…”

My affidavit includes an email sent to me by Stephen Doolan, via Thorpe, on February 13, 2008, the morning the Martin article was published in the print editions of the Calgary Herald and National Post. Doolan’s email**, as sent to Thorpe and forwarded to me, states:

“Martin’s Article Says I have threatened to quit. I have not threatened to quit. Could you please pass this along to Arthur.”

My affidavit continues:

“In fact, all of Martin’s sources take issue with the content of the Martin Article.

“In his Statement of Defence, Roderick Love denies ever speaking to Martin about me or my campaign.

“Alan Hallman has alleged in a Third Party Notice against the Media Defendants that the Martin Article is not an accurate representation of the opinion he expressed about me to Martin.”

As well, transcript pages included in my affidavit indicate that Thorpe was shown a copy of the Martin article and asked to read this paragraph:

“Insiders gleefully describe how all of Mr. Kent’s brochures blew off a pickup on the Deerfoot Trail, tying up traffic while workers scurried between cars retrieving thousands of pamphlets wind-whipped into a paper blizzard.”

In fact, Bruce Thorpe’s brother drove the truck involved in the incident. Traffic was not tied up. There were no complaints. Bruce Thorpe has stated:

“I was the lone volunteer picking up brochures, so it's not accurate.”

The case continues.

**Version shown here is from my records, with private contact details removed.

Welcome To The Dark Side Of Electoral Politics

2012-04-09T08:38:00.004-06:00

Canadians like to believe that electoral sabotage happens to other people, to the unlucky citizens of third world countries and police states. Think again.

My name is Arthur Kent, and I stood for public office in my hometown, Calgary, in the March 3, 2008 Alberta provincial election. I was invited by then-Premier Ed Stelmach to run for his governing Progressive Conservative party.

“We need help renovating the party,” Mr. Stelmach told me. “We need a new beginning.”

As the election neared, I felt obligated to tell the premier that any such renewal would require genuine change, as well as reforming the PC’s deeply entrenched patronage culture.

My constituents, the voting public, had grown tired of the inertia that had settled over Alberta. Our resource wealth, they told me, should make us North America’s shining star of public administration.

Instead, Tory insiders were getting rich while the fabled “Alberta Advantage” of low taxes and boundless opportunity was vanishing before our eyes.

Almost immediately after I began voicing the voters’ concerns, I found myself subjected to a harsh attack by anonymous party figures in the news and web pages of the Calgary Herald, the National Post, and other titles owned by the pro-Conservative, and now-bankrupt, Canwest group.

Bizarrely, in circumstances that appear without precedent in defamation actions in Canada, the U.S. and Britain, an article that has been subject to intense libel litigation for nearly four years continues to be republished on the news pages of upwards of 35 former Canwest websites.

These newspaper websites came under the control of a new and different corporation, Postmedia Network Inc., in July 0f 2010. Some of the websites were sold to Glacier Media in December of 2011.

In very real terms, Canada's largest newspaper publisher is still fighting the last Alberta election against me - provincially, nationally and internationally via the world wide web - even as the current 2012 campaign unfolds.

The article is a poisonous smear, riddled with false assertions. It reports nothing of what was really going on in our campaign in 2008. As such, the article has no news value or relevance to the 2012 Alberta election.

In the current campaign, Ed Stelmach has been replaced as PC party leader and premier by my former running mate, Alison Redford. But after 41 consecutive years in power, the PC's are dogged by scandal and internal strife. And they're running second in the polls to the upstart Wildrose party.

While the PC's accident-prone performance is a stunning shift from its customary swagger, many of us on the front line four years ago recognized an arrogant, decades-old regime, riding hell-bent for a fall.

Behind the scenes in 2008, I cautioned Premier Stelmach that his plan to radically increase oil and gas royalties needed major refinements. Alberta risked losing energy capital and employment – and ultimately revenue - to our North American competitors.

In doing so I was merely passing along the evidence I had seen in the books of our homegrown oil and gas explorers, many of whom live in my constituency.

History tells us they were right. The Stelmach government was ultimately forced to reverse its royalty scheme, but not before the energy sector hemorrhaged investment and jobs, and at the worst possible time, just prior to the 2008 market crash that sent the world into recession.

Our election in February of that year was waged against a backdrop of voter disaffection. The PC party’s leadership had reason to be edgy, and Ed stumbled through the early days of the campaign.

The article attacking me bears the tenor of Tory paranoia. Clearly the party’s backroom boys and girls were enraged that one of their own candidates would even whisper the word patronage, much less advocate ditching the practice.

Big-dollar appointments and contracts have become a pillar of Tory culture, and a profoundly debilitating one judged by the government’s corresponding decline in administrative prowess.

In my view, patronage is the domain of Alberta’s political dinosaurs, so I campaigned on the need to consign the phenomenon, and its dependants, to Jurassic Park.

Just days into the campaign, our team felt the dinosaurs’ fury.

No less a figure than the fallen angel of Tory patronage, Rod Love, publicly endorsed our opponent, the incumbent opposition MLA for Calgary Currie.

Then, a week later, our team awoke to the defamatory attack article.

Not surprisingly, the rant was crafted by Rod Love’s self-confessed mouthpiece at the Calgary Herald and National Post, Don Martin.

I had never met Martin or Love, had never exchanged a word with either of them. Yet there was the assault, spread over the Top News page of the Calgary Herald, and in the other newspapers and their websites.

The article’s journalistic offences are self-evident. For starters, there is no comment from me or from any of my supporters. Just a stream of malicious lies from Tory "insiders," hiding behind a veil of anonymity.

When the National Post and Herald refused to publish my response, I knew it was time to look deeper, as deep as the law will allow.

Like any full-blooded political scandal, the cover-up has become much more complex than the original offence, and arguably more interesting, too.

Browsing through these pages, you’ll be forgiven for recalling Deep Throat’s quip from the Watergate scandal: “These guys aren’t that smart.”

The PC party’s movers and shakers don’t stop at throwing elected members of the legislature off the government benches, or interfering with an election by sabotaging their own candidate’s campaign.

Personal reputations are in the crosshairs, too, and defamation is a game these "insiders" play for keeps - or try to.

As more Albertans realize with each passing day of the 2012 election campaign, the weak and worried PC party apparatchiks are so desperate to remove credible voices for genuine change that they've embraced the practice of political fratricide. They've purged their ranks to keep the gravy flowing.

Thankfully, they've also left a trail of fingerprints and political DNA, a roadmap of their wrongdoing.

You can follow that trail by going to the archives, or just watch for updates on our homepage.

Postmedia Faces Contempt Claim

2012-04-09T06:44:00.011-06:00

Canada’s largest newspaper publisher, Postmedia Network Inc., and one of its senior editors will answer contempt of court allegations before a two day special chambers hearing, a Calgary judge has ordered.

The same hearing will decide an injunction application seeking an order that Postmedia cease internet publication of the article by Don Martin impugned in two defamation lawsuits, Kent v. Martin, National Post, Canwest et al and Kent v. Postmedia, National Post Inc., Paul Godfrey and Gordon Fisher.

More than four years after its first publication during the 2008 Alberta election - and currently during a second Alberta election campaign - the Martin article continues to be published internationally each day on at least 35 former Canwest websites currently owned by Postmedia, or sold by Postmedia last December to Glacier Media Inc. of Vancouver.

Documents filed with the Court show that Martin’s sources have criticized the article in pre-trial questioning, and contradict key points of Martin’s testimony about their contributions to the piece.

My affidavit as plaintiff, filed in support of both the contempt of court and injunction applications, states at paragraph 38:

“In fact, all of Martin’s sources take issue with the content of the Martin Article.”

Martin no longer works for the National Post and Calgary Herald.

As plaintiff, I filed the contempt of court application against Postmedia, the former Canwest corporate companies and Calgary Herald editor in chief Lorne Motley after Motley’s refusal, during court-ordered questioning on February 16, 2012, to answer questions as the corporate representative of the Canwest defendants.

Calgary Herald editor in chief Lorne Motley

The application was filed on an emergency basis because Motley’s actions threaten to disrupt the schedule for questioning established by court order late last year.

On November 21, 2011, our case management judge in Kent v. Martin, National Post, Canwest et al, Justice William A. Tilleman, ordered that the questioning of all defendants and defendants’ witnesses, as well as that of the plaintiff, should be completed within a four week schedule, with one week of questioning taking place during each of the first four months of 2012.

The final week of that schedule begins in only seven days' time, on April 16th. All of the other defendants have appeared for questioning as ordered, including: Bruce Thorpe; Kristine Robidoux, Q.C.; Roderick Love; Alan Hallman; and Bill Smith, the president of Alberta's Progressive Conservative party.

Documents filed with the court show that during his appearance in February, Motley confirmed that he was appointed to the role of corporate representative, also known as the Officer of the Defendants’ Witnesses, in Kent v. Martin, National Post, Canwest et al in the fall of 2008.

That appointment has never been revoked, he said. But when he was asked by my lawyer Michael Bates:

“Mr. Motley, you’re produced here today as the officer for the defendants in Action 0801-08414, being The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd. and CanWest Mediaworks Inc.?”

…the corporate defendants’ lawyer, Scott Watson of the Calgary law firm Parlee McLaws LLP, answered on Motley’s behalf, stating:

“I can try to assist here. Mr. Bates, the difficulty, you can appreciate, is that since this action has commenced, those corporate entities, I believe, no longer exist.”

Instead, Watson stated, Motley should be regarded as the corporate representative of Postmedia Network Inc. In subsequent fax and email correspondence, Watson stated that questioning could resume provided Postmedia be accepted as “the proper corporate representative.”

Trouble is, Postmedia did not exist at the time of the original publication of the Martin article. Or during its first two years of publication. Or during the examinations for discovery of Don Martin and five other Calgary Herald and National Post employees in 2009, and Martin’s second questioning in June of 2010.

Postmedia is sued separately for republishing the Martin article since July 13, 2010, the date the company formally took ownership and control of Canwest's assets.

My lawyer asked Motley during his February questioning whether the Canwest corporations were formed as federal entities, under the Canada Business Corporations Act.

Section 226 of the Act holds that such companies can be sued within two years of dissolution. Motley said: “I do not know” when asked if he was aware under what legislation the Canwest companies were incorporated.

Documents filed with the court show that when asked if Motley would undertake to get that information, Watson stated on his clients’ behalf:

“I think so. I mean, I think if there’s a record, it would be with a registry of some form that will tell us something about the status and the prior status.”

Regardless, beyond the legal safeguards of the Canada Business Corporations Act, the action Kent v. Martin, National Post, Canwest et al was filed in Alberta’s Court of Queen’s Bench on July 15, 2008, when the Canwest corporations were all solvent, active concerns.

My lawyer asked Motley again: “Are you in a position for us to proceed today to ask questions about your knowledge about the 0801 action?”

Again, Watson answered: “No. I don’t think we are.” Watson also stated on the record:

“…the issue that we’ve been discussing is whether or not he can actually be sworn as an officer for companies which, I understand, don’t exist.”

In fact, a search conducted with Corporations Canada this week, specifically on Saturday April 7, 2012, nearly two months after Motley’s questioning, shows the “Status” of the defendant Canwest Publishing Inc., corporation number 4319729, as: “Active – Dissolution Pending (Non-compliance).”

The search confirms the company’s “Governing Legislation” as the Canada Business Corporations Act – 2005-08-31. This is the case with all the Canwest and Postmedia corporate entities.

In light of Motley’s refusal to answer questions as the corporate defendants’ representative, my lawyer asked that Motley undertake to produce any agreement evidencing Postmedia Network Inc.’s purchase of the assets of the Canwest companies. Motley was then questioned as an employee, in his capacity as editor in chief of the Herald.

A month later, on March 19, Watson forwarded the answers to Motley’s undertakings.

Documents filed with the court show that among documents produced was an Alberta corporate registration search conducted on June 29, 2011 for “Canwest Media Inc.” (formerly “MediaWorks”). The search results state “Active” for the company’s status.

As well, under “Primary Attorney” the search printout states:

Watson, G Scott

Parlee McLaws LLP

Motley’s answers to undertakings also attached an Asset Purchase Agreement dated May 10, 2010 that shows that the action Kent v. Martin, National Post, Canwest et al is an insured claim, referred to as: “Hiscox Ref. #122003825.”

My application requests an order compelling production of the Hiscox insurance policy, to “allow the Court to discern the true and proper corporate defendants in the within Action…”

The May 10, 2010 purchase agreement leads to other documents from the Canwest newspaper companies’ takeover by Postmedia Network Inc. that reveal, for the first time, that sometime in the spring or summer of 2010, Postmedia began instructing the conduct of Kent v. Martin, National Post, Canwest, et al, apart from the separate Postmedia lawsuit filed in November of 2010.

Neither my lawyers nor the court were informed of Postmedia’s role in the Canwest action prior to the events stemming from Motley’s refusal to answer questions as corporate representative.

Alberta’s Rules of Court make clear that relevant records such as the Canwest-Postmedia transfer of ownership documents must be produced to parties to the litigation.

Postmedia’s CEO, Paul Godfrey, and the National Post’s president, Gordon Fisher, did not disclose their company’s role in managing the Martin/Canwest action when both men were cross-examined by my lawyer in Calgary in October of 2011 in the context of the Postmedia lawsuit.

Godfrey and Fisher are attempting - for a second time - to be removed as named defendants in that action, and were questioned on their affidavits filed in support of that application. The execs' first attempt at escaping the Postmedia lawsuit was denied last July.

In August, two months prior to Godfrey's and Fisher's cross-examinations on their second application, my lawyer wrote to Scott Watson, also the lawyer of record in the Postmedia case, stating:

“We note that your clients attach documents to their affidavits that are not contained in their Affidavit of Records.

“We encourage you to please serve us with a complete and proper Affidavit of Records along with copies of all producible documents within the possession or control of each of your clients in a timely manner that allows us a reasonable opportunity to review the records prior to the cross-examinations…”

Seven weeks later, on October 17 and 18, 2011, Paul Godfrey and Gordon Fisher took their oaths and were questioned on the record – without having produced the purchase and transfer documents that have finally surfaced in the Martin/Canwest action following Motley’s refusal to be questioned as the Canwest defendants’ corporate representative.

Postmedia CEO Paul Godfrey

As a result, both Postmedia and Lorne Motley were included in my contempt application, filed with the court on March 29, 2012, which states:

“…with full knowledge of the Questioning Order, Mr. Motley attended for questioning having failed to properly prepare to answer appropriate questions as a Corporate Representative.

“In addition, the Media Defendants by their counsel of record, Scott Watson, refused without any lawful excuse to allow Mr. Motley to give answers to questions as their Corporate Representative.”

The Notice of Motion continues:

“As a result of the conduct of each of Mr. Motley, the Media Defendants, and Postmedia Network Inc., the progress of the questioning in the within Action has been materially compromised, in express contravention of the spirit and intention of the Questioning Order.”

When the application and supporting affidavit were served on Scott Watson, his partner Gregory Jaycock of Parlee McLaws replied in a letter to my lawyer stating:

“Mr. Watson is out of the country and not presently reachable.”

Jaycock’s letter did not indicate when Watson would return, or become “reachable.”

Because our court-ordered fourth week of questioning is fast approaching, we sought direction from Justice Tilleman at an appearance this past week, on Thursday, April 5.

My lawyer, Michael Bates, indicated at the outset of the hearing that we understood that our contempt application could not reasonably proceed without a lawyer present prepared to argue the media defendants’ position.

In Watson’s absence, Gregory Jaycock requested an adjournment. Despite indicating that he wasn’t sufficiently briefed on his partner’s file, Jaycock embarked on a lengthy argument as to why our appearance before the court on Thursday was unjustified.

In response, Michael Bates explained that the media defendants’ actions had compelled us to appear, since we would not condone, much less contribute to, a resumption of questioning that breached the time limits set by Justice Tilleman’s order - or that was predicated on bowing to Watson's demand that we accept Postmedia as the "proper corporate defendant."

After hearing the parties last week, Justice Tilleman ordered the special chambers hearing to be scheduled without delay to decide both the contempt of court and injunction applications.

In addition to deciding the contempt matter and resolving the mysteries of corporate responsibility and liability, my application seeks a ruling “as to the scope of questions that are relevant and material to the defence of ‘responsible communication on matters of public interest’…”

Also known as the “responsible journalism” defence, this is an area of questioning that counsel for the media defendants have repeatedly objected to – despite their clients having expressly shielded themselves with responsible journalism in their Statements of Defence in both the Canwest and Postmedia actions.

My application states:

“Throughout the questioning conducted pursuant to the Questioning Order, various disagreements have arisen between the Plaintiff and counsel for Don Martin and the Media Defendants as to the areas of questioning that are relevant and material to the defence of ‘responsible communication on matters of public interest’ or ‘responsible journalism.’

“It is in the interests of justice and the efficient conduct of the questioning of the Corporate Representative that the Court provides direction in this regard.”

The case continues.

Big Media News Blues

2012-01-14T13:34:00.002-07:00

They were once the proud mastheads of one of North America’s most respected newspaper chains, the Southam group.

Then Canada’s dominant urban dailies, titles like the Ottawa Citizen and the Calgary Herald, endured two painful changes of ownership.

Editorial and managerial upheavals brought on by Conrad Black (1996-2000) and Canwest’s Asper family (2000-2010) widened old fault lines and cracked open new ones.

It was this fractured landscape that produced the journalistic malpractice we chronicle in these web pages.

Consider these anomalies in the context of any Journalism 101 textbook:

A journalist who openly boasts about his “conflict of interest” with one of Canada’s sleaziest political backroom operators.

A newspaper chain whose editors and lawyers handle anonymous sources in breach of both the basic codes of journalism and precedents set by the Supreme Court of Canada.

A bankrupt media group scooped up by vulture capitalists, who spurn the opportunity of a fresh beginning by republishing an article that had been subject to litigation against the previous owners for two full years.

The seeds of this dysfunction were sewn during Conrad Black’s takeover of the Southam chain in 1996. Black steered the group’s major daily newspapers sharply to the right, but overreached his ambitions with the costly launch of a new countrywide flagship, the National Post, in 1998.

Black cashed out to Canwest’s Asper family in a two-stage transaction in 2000 and 2001. Politically the Aspers picked up where Black left off, gradually gnawing away at their newspapers’ editorial independence before going spectacularly bankrupt in 2009.

Today, Canada’s biggest newspaper group is owned almost entirely by foreign hedge funds, led by GoldenTree Asset Management of New York.

Under the unlikely moniker Postmedia Network Inc., this consortium of brokers and speculators is well on the way to landing our country’s major dailies exactly where the Aspers left them: as distressed assets, looking for a saviour.

The reason? Too much debt: the former Canwest creditors borrowed some $950 million of the $1.1 billion they paid for the bankrupt chain.

What looked like a bargain in July of 2010 became a crushing burden by the early months of 2011. Ad sales were slow to recover from recessionary lows, while circulation revenue continued to fall.

Add to that the cost of servicing the debt to their Manhattan bankers, and Postmedia’s inaugural first-quarter profits bled down to just $5.6 million, compared with $61.8 million a year earlier under bankruptcy-bound Canwest.

As a result, staffers at Postmedia’s newspapers reported that cutbacks were biting deeper, with casual workers in newsrooms having their duties reduced by a day a week. Cuts to full time employees soon followed.

Meantime the clock began ticking on Postmedia’s board of directors. They’re mainly financiers who contrived the highly leveraged acquisition in the hope of turning a quick profit by way of a public stock offering.

But that IPO remains little more than a twinkle in the eyes of Postmedia chairman Paul Godfrey.

In July of 2011 the company was forced to list Postmedia's shares on the Toronto Stock Exchange in a purely symbolic way. Shares already issued to the company's investors were reclassified in a dual-share structure, but withheld from public trading.

A majority of voting shares went to Postmedia's minority Canadian owners, while foreign hedge funds continue to own 92% of the company: a gesture towards compliance with Canada's regulations on domestic ownership and control of newspapers.

Once again, the media malaise known as concentration of ownership has led to chaos. As the recession dragged through 2012, Postmedia's stock plummeted from $17 to a low of just over $5 a share.

Meantime, Paul Godfrey has begun lobbying Canada's Conservative government to relax foreign ownership rules. With few potential Canadian buyers in the wings, speculation grows that Godfrey will seek American angels to rescue his Postmedia deal from the abyss.

As you navigate these pages, decide for yourself how Big Media News Blues affects our way of life in Canada, especially our troubled political culture.

From our team’s perspective, as we battle them in open court, the management and lawyers of our biggest newspaper chain behave as though truth and integrity are expendable.

They appear to believe that if covert links with political figures sell newspapers and mouse clicks, then conflict of interest is not such a bad thing.

We beg to differ. Just watch us.

A Broken Government

2012-01-01T13:33:00.002-07:00

It is a government running on empty.

That's sadly ironic given that Alberta's Progressive Conservatives are perched on a wealth of energy resources.

A once-great party of the people, the PCs have been undone by their leaders’ rigid, authoritarian ways and their rank incompetence in managing the province’s business.

The government has lurched from one policy disaster to another.

Consider the PC government’s forlorn hallmarks since its last election victory four years ago…

December 2011

A CBC News investigation finds that a PC party constituency association received money from 11 corporations barred by Alberta’s election laws from making political donations. The discovery followed earlier revelations that many municipal councils had made illegal donations to local Progressive Conservatives, prompting the Chief Electoral Officer to order seven municipalities to respond to the allegations. The issue remains unresolved, despite the PC government’s stated intention to call an election early in the New Year.

December 2011

Alberta’s legislature hears many questions but few answers about the governing PC party’s mysterious payments to its former leader, Ed Stelmach. His replacement, Alison Redford, claims the money is for party-related expenses. But outside the legislature, PC president Bill Smith (a named defendant in Kent v. Martin et al) says any cash left over after expenses goes to the leader as income in a “Benefit Plan Trust.” Redford is now in line to collect the same additional funds, which the party withholds from public scrutiny.

November 2011

Another top physician alleges he endured threats by superiors in the government’s health superboard after criticizing a plan to move testing from a dedicated cancer centre to an alternate lab in Calgary. The doctor received a letter from a senior Alberta Health Service official stating that if he continued to speak out against the move he “would regret it.” Despite the revelation, Premier Alison Redford resists calls to keep her leadership campaign promise of a formal judicial inquiry into health care concerns.

November 2011

The PC government’s rosy predictions of balancing Alberta’s budget by year’s end are dashed by new projections of a $3.1 billion deficit, due mainly to declining energy revenues. Once again there are suggestions of reversing a measure taken by former Premier Ed Stelmach to help balance the books: restoring the annual health care premiums charged to Albertans. The premiums were dropped by Stelmach as a campaign pitch in the 2008 election.

November 2011

Alison Redford marks her first month as Alberta premier by fudging on the promise central to her campaign for the PC party leadership: calling a judicial inquiry into coercion and queue-jumping in the health care system by members of the government. As well, she performs a double-reverse on the fall sitting of the legislature by initialling ruling one out, then changing her mind in the face of heated protests, and finally ordering a two day sitting in late October followed by two weeks in late November.

October 2011

Alberta’s Health Quality Council reveals that care has worsened in the province’s busiest emergency wards, despite promises from the PC government to resolve overcrowding. More than 20 doctors tell the Council that they suffered intimidation after speaking out about the health care system’s problems, with some being forced to leave Alberta. The Council’s chief executive calls their stories “very disturbing and very sad,” and says that as many as five doctors have stated that they don’t feel free to speak openly to his investigators.

October 2011

Rather than banish the “Old Boys’ Club” of Progressive Conservative party patronage figures, incoming Premier Alison Redford appoints defeated candidate Gary Mar to a highly-paid Asian trade post. Redford slammed Mar’s record during the campaign. She told the party faithful in July: "During Gary Mar’s term in Washington as our special envoy, Alberta sustained harsh criticism for our energy industry and we failed to define ourselves as a safe, ethical and critical oil and gas supplier to the United States."

October 2011

In one of her first acts as Alberta’s 14th premier, the PC party’s leader-elect, Alison Redford, reinforces the Tories’ patronage culture by selecting an interconnected group of party-affiliated lawyers, lobbyists and appointees to be her “transition team.” Heading the group is Calgary lawyer Robert Hawkes, Redford’s ex-husband. Two months later, Hawkes is awarded an honourary “Queen’s Counsel” designation by the PC government.

October 2011

Buoyed by her promise to appoint a judicial inquiry into Alberta’s troubled, cash-haemorrhaging health care system, Alison Redford is the surprise victor of the PC party leadership contest. Favourite Gar Mar is edged out amid complaints over his ties to the party’s patronage culture. “It’s the same old, Old Boys’ Club around Gary that’s been there forever,” a rival candidate’s aide says, adding: “that group of people needed to be pushed out.”

September 2011

The first round of balloting in the Alberta PC party leadership race produces few surprises – aside from a dramatically reduced turnout of only 59,537 ballots cast, compared to 97,690 in the Tories’ 2006 contest. Candidates Gary Mar, Alison Redford and Doug Horner go through to a second ballot on October 1. Ultimately this tally, too, was sharply down, with 78,000 votes cast, scarcely half the 2006 total of 144,000.

September 2011

The PC party announces it will investigate a poll published by the Calgary Herald based on a leaked party membership list, which PC president Bill Smith says “is not at all an accurate reflection of the membership that will be participating in our leadership process.” The suspect poll places Herald favourite Gary Mar first and Alison Redford second in the field of six candidates. “It had to be gerrymandered,” charges one of the poll’s four also-rans.

September 2011

The leadership candidate most closely associated with the PC party’s “old boy” network of patronage appointees and recipients, Gary Mar, is endorsed by the editorial board of the Calgary Herald. The Herald, previously owned by the bankrupt Canwest Publishing Inc., a corporate defendant in Kent v. Martin et al, is currently owned by Postmedia Network Inc., a defendant in the separate action Kent v. Postmedia, Paul Godfrey et al.

June 2011

Alberta’s Heritage Savings Trust Fund, fuelled by non-renewable energy revenues, has declined in per capita value to less than it’s original worth in 1976, an all-party legislative committee finds. As well, at $13.8 billion, the Heritage Fund is only $1 billion larger than it was in 1986.

May 2011

Residents of the town of Slave Lake demand to know why emergency authorities failed to issue an evacuation alert before a wildfire swept into town, destroying or damaging some 600 homes. Premier Stelmach says only “I’m not going to second-guess what happened…” adding that such questions “will be answered later.” But in the following weeks and months, no definitive answers are provided.

May 2011

Under opposition fire over health care, land rights and his dysfunctional style of government, Ed Stelmach bows out of his final legislative sitting as Alberta’s 13th premier. In three years Stelmach has gone from winning 72 of the legislature’s 83 seats to marking time until his PC party can choose a replacement.

March 2011
Amid claims that some Alberta doctors have had to leave the province after standing up for their patients' rights, the case of Dr. Ciaran McNamee is reported by CBC News. The statement of claim in a lawsuit settled in 2001 states that after McNamee complained publicly to the PC government about wait times for surgery, his sanity and competence were questioned by his superiors, forcing him to leave his post as the Capital Health region's head of thoracic surgery.

February 2011
The people of Alberta could endure a lame duck provincial government for two full years, due to the PC party leadership’s intention to extend the internal contest to determine a new party leader and premier until the autumn. Party president Bill Smith says the new, unelected premier will not have to call an election until 2013.

January 2011
Embattled Premier Ed Stelmach announces he will not run in the next election, which had been expected in a year’s time. But Stelmach says he’ll stay on until September, triggering a long and costly leadership contest among his cabinet ministers. Two top minister soon resign in hopes of becoming Alberta’s 14th premier by way of a members-only vote within the PC party.

January 2011
Figures show that in real terms, Premier Ed Stelmach is Canada’s highest-paid provincial leader. Meanwhile, Alberta has the second lowest minimum wage in the country. It is one of three Canadian provinces that lacks a poverty reduction program.

December 2010
The Stelmach government is blamed by federal and independent reviews for contributing to public distrust of Alberta’s oil sands through improper monitoring and a failure to keep pace with development.

December 2010
Premier Ed Stelmach warns of deeper cuts to public services as the province’s deficit rises to $5 billion. Stelmach admits that his government cannot keep its promise to balance the budget by 2013.

November 2010
Top emergency doctors accuse Premier Stelmach and his ministers of ignoring warnings of a “worsening disaster” in Alberta’s emergency wards. Coincidentally, the boss of Alberta Health Services is fired after shrugging off reporters’ questions about the crisis by saying that he’s too busy “eating my cookie”.

November 2010
Stelmach’s PC caucus expels Raj Sherman, a Tory MLA, emergency doctor and legislative assistant to the Health Minister. His sin: speaking out against government inaction over the crisis in Alberta’s Health Services. Sherman later alleges that Stelmach and others have threatened his medical license through a “whispering campaign” of smears, including at least one phone call to the physicians’ licensing authority questioning Sherman’s state of mind.

September 2010
After a three-year slump caused by the Stelmach government’s ill-fated royalty hikes announced in October of 2007, Alberta’s oil and gas industry finally returns with record land acquisitions. But Stelmach’s delayed, seven-stage reversal causes a flight of capital, jobs and equipment to neighbouring provinces, which deepens the government’s revenue woes.

September 2010
The government plays catch-up as a University of Alberta study finds high levels of toxins near oil sands sites in the northeast of the province. Stelmach promises: “We’ll have the scientists sit down and compare the data. Some of the measurements, I couldn’t explain to you, but let it be discussed scientist to scientist.”

September 2010
Flood victims in southern Alberta slam the Stelmach Government for taking too long to send out relief payments to cover damages caused by heavy rains earlier in the summer. Meantime ballooning administration costs of $30 million on the $200 million program cause outrage in hard-hit communities.

August 2010
Premier Stelmach is a no-show at a public forum in Vegreville, which he represents in the Alberta legislature, over concerns about the proposed route for a high-voltage above ground power line. Stelmach claims he’s not ducking the public: he’s merely concerned about a possible conflict of interest since one of the possible routes would cut through his own land.

August 2010
Angry flood victims from the Medicine Hat area deluge the government with complaints over its sluggish response to their damage claims from rain-related flooding in June. More than 100 claimants confront Municipal Affairs Minister Hector Goudreau at a public meeting, asking why relief is still nowhere in sight despite Premier Stelmach’s apology for the delay more than a month earlier.

July 2010
Premier Stelmach apologizes to flood-stricken communities in southeast Alberta for his government’s late response to relief claims. Farmers, however, continue to wait for word on damage payments for their losses.

June 2010
Spending watchdogs say the Stelmach government is lavishing top officials and ministers with excessively expensive cars and SUVs, despite the recession and the government’s swelling deficit. Top appointees are offered $43,500 towards a vehicle, with many choosing Audis, Acuras or other high-end brands. Ministers receive up to $45,000, with Justice Minister Alison Redford enjoying an Audi A4 Avant 2.0T, while controversial Culture Minister Lindsay Blackett goes for an Infiniti EX35 Crossover.

June 2010
Stelmach’s Culture Minister Lindsay Blackett backpedals after Alberta’s film and television professionals denounce his denigration of their work. Blackett told a panel at the Banff World TV Festival: “Why do I produce so much shit? Why do I fund so much crap?” In condemning his remarks, Canadian producers and artists note that the Stelmach government’s under-funding and ignorance of the industry has made Alberta the least film-friendly jurisdiction in North America.

May 2010
The government’s U-turn on its ill-fated energy royalty review is complemented by another costly incentive program to spur exploration and development. Stelmach and his ministers claim the $1.5 billion cut into future royalties is not a giveaway, in hopes that lost revenues will be offset by new income in land sales. The premier avoids explaining why the royalty scheme wasn’t refined before its “unintended consequences” grew to unsustainable proportions.

April 2010
Despite sagging public popularity, the Progressive Conservatives’ fundraising remains strong, thanks to the party faithful, particularly its extensive network of patronage recipients and appointees. Figures show the PC party raised more money in the previous year than its three opposition rivals combined, upwards of $2.8 million.

March 2010
Heads are scratched in the Alberta Legislature as Premier Stelmach paints a misleading picture of oils sands emissions. "Al Gore and Greenpeace certainly won't lead their stories with respect to the carbon dioxide emissions, the reduction from the oilsands, have come down 38 per cent since 1990.” In truth total CO2 emissions have gone up dramatically and continue to rise. It’s the intensity of emissions, or carbon dioxide per-barrel produced, that has decreased by 30%.

March 2010
A Progressive Conservative constituency association writes to Premier Stelmach, stating that the PC party is “nearing the precipice of moral insolvency to govern.” The letter charges that the Tory party “is bereft of policy, planning, execution, follow-through and communication to the members of the party, and, most importantly, to the citizens of Alberta."

March 2010
Students and public servants march on the Alberta Legislature to protest the government’s budget cuts. The PC’s are accused of fighting the recession on the backs of provincial employees, students and families in need.

March 2010
A national study finds that Alberta’s health system lags behind other provinces, meeting only two of five benchmarks regarding patients receiving required treatments and procedures. Government spokesmen admit that Alberta must “dramatically improve” wait times for elective surgeries.

March 2010
Premier Stelmach refuses to apologize for his two-year delay in addressing the “unintended consequences” of his oil and gas royalty review. Instead he claims the rollback is a response to market disruptions beyond his control. He omits mention of evidence placed before him prior to the 2008 election, which clearly indicated his policy would seriously damage the province’s revenue streams.

March 2010
The government enacts a final revision of Premier Ed Stelmach’s energy royalties scheme, flip-flopping back to rates in effect before the regime went into effect 15 months earlier. But oil and gas experts say the industry is so depressed it could be years before the impact of the premier’s U-turn is clear. In the year previous, an average of only one in four available drilling rigs was operating at any one time in Alberta, the worst utilization rate in memory.

February 2010
Researchers at the University of Calgary report that the government’s oil and gas policies place Alberta last in terms of competitiveness among six major producing jurisdictions in North America. Premier Stelmach’s royalty scheme, they say, places a drag on energy investment twice as high as other sectors of the province’s economy.

February 2010
Bowing to public anger, Stelmach announces an independent review of the huge salary increases he and his cabinet ministers awarded themselves immediately after the March 3, 2008 election. Critics deride a subsequent 6% reduction for the premier and 3% cut for ministers as too little, too late.

January 2010
Wait times continue to worsen in the busiest emergency wards, according to the Health Quality Council of Alberta. Some 42% of patients waited more than two hours to see a doctor, compared to 38% in 2007. Other measures, too, reveal steady deterioration in services, despite the government’s promises to improve health care.

December 2009
The government scrambles to reverse a plan by its Health Services board to save $70,000 a year by cutting free toiletries for mentally ill patients. Blistering criticism had been directed at the cuts, which were widely seen as a trivial and insensitive way to address to the health department’s staggering $1.2 billion deficit.

December 2009
Pollsters find Ed Stelmach to be Canada’s least popular provincial premier, with only one in seven Albertans approving his leadership. Angus Reid charts the decline in Stelmach’s approval rating from 43% in February of 2009 to 14% by November.

December 2009
Alberta Health Services is forced to borrow $220 million from the Royal Bank of Canada as its deficit is set to reach $1.24 billion in 2010. AHS scrambles for further savings, leaving posts vacant and encouraging early retirement by health professionals, despite increased demand for services by Alberta’s aging population.

December 2009
Recession fears aggravated by perceptions of poor government leave one in three Albertans experiencing employment anxiety, the highest level in Canada. The Royal Bank’s Consumer Outlook finds 36% of Albertans worried about job security, significantly above the national average of 27%.

November 2009
As Alberta’s deficit projection rises to $4.3 billion, and Premier Stelmach warns of $2 billion in government spending cuts, an independent report finds that the premier and his ministers are enjoying huge benefits from their self-awarded salary raises for the 2008-2009 fiscal year. The Canadian Taxpayers Federation comments that politicians should not be trusted to adjust their own pay.

November 2009
Statistics Canada reports that Alberta has suffered the largest job losses in the country. Year to year from October 2008, the province’s employment fell by 3.3% or 68,000 jobs, the steepest drop in Canada.

October 2009
As the recession threatens the finances of families throughout Alberta, Premier Stelmach rewards his senior officials with unseemly pay increases. His chief of staff receives a total of $390,241 including bonuses, while his two senior publicists rake in $288,179 and $216,748 respectively. Meantime the highest ranked civil servant is handed an embarrassment of riches: $531,587 in base salary and benefits. Opposition leader David Swann brands the payments “Obscene, in the climate that we’re in.”

October 2009
Bankrupt PR firm Highwood Communications, run by a PC party insider and member of the Stelmach government’s election team, is cited by Alberta’s auditor general as evidence of a need for closer monitoring of outside agencies. Highwood earned a 4% fee on its placement of $41 million in government advertising, but filed for creditor protection owing $5.3 million to 353 creditors.

October 2009
Alberta’s auditor general slams executive pay and “gold plated” retirement schemes in government departments and provincially-funded organizations. Fred Dunn directs his harshest criticism at Alberta Health, and says the University of Calgary attempted to “deceive” the legislature over their outgoing president’s multimillion-dollar pension.

September 2009
The CEO of Royal Dutch Shell says that both the industry and government are failing to properly promote the benefits of the Alberta oil sands. Peter Voser says officials and companies haven’t done enough to make a case for unconventional crude.

August 2009
Forced into aggressive cost-cutting, Alberta Health Services ask nurses and other health professionals to take early retirement – even as public demand on the system is increasing. Critics say that reducing the number of workers is equivalent to reducing the health care system itself.

August 2009
The government revises its budget deficit sharply upward as energy prices sag. A projected shortfall of $7 billion forces the Stelmach government to search for another half-billion dollars in program savings. Meantime the Heritage Fund enjoys a billion-dollar rebound in the stock markets. But much of the gain is soaked up by the revenue-hungry government, which transfers $730 million from the Heritage Fund to general revenues.

July 2009
MLA Guy Boutilier is kicked out of the Progressive Conservative caucus for challenging Premier Ed Stelmach to keep his promise to build a new seniors’ care facility in Fort McMurray. Boutilier later joins the rival right-of-centre Wildrose Party. Vital infrastructure continues to crumble in McMurray’s oil sands-related population boom.

July 2009
Alberta posts its highest unemployment rate in 13 years, jumping to 7.2% from 6.8% in June.

March 2009
Stelmach announces yet another partial tweak to his new royalty regime, two months after it went into effect. The incentive program, aimed at maintaining jobs among small and mid-sized oil and gas companies, will cost Alberta taxpayers up to $1.5 billion.

February 2009
The government faces criticism as Alberta’s rainy-day Heritage Savings Trust Fund sags at 20% less than it stood 20 years earlier, adjusted for inflation. The fund’s earnings, hard hit by the recession, fail to make up for years of profit skimming by successive PC governments seeking to balance unwieldy provincial budgets.

February 2009
The PC government’s finance minister reveals that Alberta has entered a “sharp period of recession”, and that a deficit of $1.4 billion is forecast for the coming year, one of the largest Canadian provincial shortfalls for 2009. Alberta’s first deficit in 15 years comes with a warning that at least 15,000 jobs will be lost as the economy shrinks by up to 2%. Drilling companies predict that rig activity will decrease by a third compared to disappointing 2008 levels.

February 2009
Alberta’s chief electoral officer is fired by a Tory-dominated committee of MLA’s. Opposition members say that Lorne Gibson’s is ousted because he criticized the government, tabling more than 100 recommendations for improvements to the provinces electoral system. Gibson had asked for authority to appoint non-partisan returning officers, following controversy over the Progressive Conservatives’ selection of party members for many of the posts, including the Returning Officer in the Calgary Currie constituency.

January 2009
Stelmach announces that his government is launching a detailed study of the economic competitiveness of Alberta’s conventional energy sector, in advance of further easing of it’s new regime of royalty increases, now in effect. The move is the same recommendation made a year earlier during the Alberta election by candidate Arthur Kent, whose campaign was subsequently sabotaged by PC senior Party “insiders” by way of a defamatory smear published in the neo-conservative National Post and PC-friendly Calgary Herald.

December 2008
Premier Stelmach admits for the first time that his government – and Alberta taxpayers – may be saddled with a budgetary deficit. The red ink is threatened by collapsing energy revenue and the Tory government’s 32% increase in spending since 2005.

December 2008
Alberta’s junior oil and gas explorers, who find and produce the province’s cleanest new energy supplies, find it next to impossible to raise significant operating capital due to the dual obstacles of low prices and higher royalties set to kick-in on New Year’s Day, 2009.

November 2008
Another grim measurement emerges of the royalty review’s “unintended consequences”, with estimates that $3 billion to $4 billion in land sales to oil and gas explorers will be lost in the government’s quest for an additional $1.2 billion in royalty payments. Worse, the royalty increases are forecast to disappear due to lower prices and decreased production.

November 2008
Stelmach admits that recession-plagued commodity markets will slash the government’s surplus to $2 billion from an earlier projection of $8.5 billion. The drop in resource revenues is aggravated by a flight of capital investment, jobs and equipment from Alberta’s conventional oil and gas sector to neighbouring provinces, the result of Stelmach’s harsh new royalty regime. In response, the government announces an easing of royalties by way of transitional rates, in what will become the first of seven gradual rollbacks of the policy leading to its complete reversal by March of 2010.

September 2008
Alberta’s auditor general launches an investigation of the PC party’s favoured ad agency, Highwood Communications, which handled some $41 million worth of TV, radio and print advertising buys for the PC government over the previous decade. Despite the government forwarding ad payments to the firm, Highwood owes $5.3 million to more than 350 creditors, including dozens of weekly and daily newspapers. The Calgary Herald, a steadfast supporter of the PC government, is owed $285,781 while its sister publication the Edmonton Journal is out by $241,797.

September 2008
Figures show that fundraising efforts by Stelmach’s PC Party within Calgary’s energy industry have been cut by up to 50% as a result of controversy over the government’s review of oil and gas royalties.

May 2008
Ten weeks after re-election, Stelmach and his 23-member cabinet vote themselves unprecedented pay boosts. Ministers enjoy a $42,000 raise to $184,000 yearly, while Stelmach becomes Canada’s highest paid premier with a $54,000 increase to $213,450. The move is made behind closed doors. The public finds out two days later.

A Conflict Of Interest That Speaks Its Names

2011-12-10T17:05:00.003-07:00

It is the kind of cosy relationship that honest journalists strive to avoid.

Yet former National Post and Calgary Herald employee Don Martin openly boasts about having benefited for many years from – in his own words – a “conflict of interest” with Alberta’s most notorious Progressive Conservative Party backroom operator, Rod Love.

Equally disturbing: Martin’s employers published the boast in their newspapers, and continue to publish it online.

In a farewell article to mark his departure from newspapering to his new post as a trainee host at CTV’s news channel, Martin waxed eloquent about his links to PC party “insider” Rod Love.

Under the title: What I learned from 32 years in the newspaper business, the article was published on December 11, 2010 by the National Post, the Calgary Herald and other dailies owned by Postmedia Network Inc.

Martin’s text celebrates what he terms Love’s “advanced media manipulation.” And he writes:

“Conflict of interest declaration: He leaked me almost everything that crossed his desk as Klein’s right-hand man.”

The words “Conflict of interest” are Martin’s. And by way of their presses and web servers, his former employers at Postmedia Network Inc., the parent company of the National Post and Calgary Herald, would appear to wholly endorse the "declaration."

In full, the relevant paragraph in Martin’s goodbye tract states:

“Rod Love: There might’ve been no Ralph Klein in politics without the power of Love, who brought strategic genius, babysitter supervision and advanced media manipulation to the campaigns of the former Calgary mayor and Alberta premier. Conflict of interest declaration: He leaked me almost everything that crossed his desk as Klein’s right-hand man.”

Martin sounded a decidedly different note when questioned under oath in discovery for the litigation chronicled in these web pages, Kent v. Martin, National Post, Love et al.

Documents filed with the court show that Martin read out a passage from my response to his attack article, which the media defendants refuse to publish:

"'Virtually every tidbit that Martin has ever written about Klein came from Love.'"

Then Martin stated:

“That's a bit of an extreme stretch.”

His statement “That’s a bit of an extreme stretch” preceded by less than six months his published boast that Love “leaked me almost everything that crossed his desk.”

Backroom ties of this kind are forbidden by the media defendants’ policy and practice directives, as produced during discovery in this lawsuit. For example, the Calgary Herald Editorial Code of Ethical Policies and Practice contains a section titled:

“CONFLICT OF INTEREST, GIFTS AND FREEBIES,

Political Membership and Other Affiliations”

The text states:

“Newroom employees are encouraged to be active members in the community. They are also obliged by journalistic ethics to remain free from formal associations that might influence, or appear to a reasonable person to influence, the editorial independence of themselves and the Herald in a negative fashion… Primarily, the associations in question involve groups regularly involved in and associated with the pursuit of political power and lobbying to influence public policy.”

Despite these worthy goals, Don Martin’s Love affair goes on – and on air, CTV’s air.

On September 16, 2011, Martin invited Love onto a program Martin hosts for CTV, Power Play.

The calculated replies to Martin's soft-ball questioning in the 6-minute segment are relevant to the lawsuit chronicled in these web pages, not least because the subject is Alberta politics, specifically politics within the PC party hierarchy.

The Martin-Love exchange is a carry-over from Martin’s newspaper career. Still today, at least one of the media defendants’ newspapers, the Calgary Herald, routinely endorses the PC party leadership – and leading insiders – in the run up to elections and leadership votes.

The Herald endorsed the ill-fated ex-PC premier, Ed Stelmach, prior to the 2008 election, and did so in circumstances central to the facts in Kent v. Martin, National Post, Love et al.

The newspaper’s editorial management similarly backed the unsuccessful front-runner in the recent Tory leadership race, a former associate of Rod Love’s named Gary Mar, who figured prominently in the CTV program mentioned above.

As well, the court pleadings of Canada’s largest newspaper chain reveal management’s wide-eyed admiration for the Alberta Tories.

The Statements of Defence by the media defendants in both Kent v. Martin and the separate action, Kent v. Postmedia, Paul Godfrey et al, uses language such as:

“In the province of Alberta, the Progressive Conservative Party enjoys a considerable majority position in its popularity, governance, and influence over the citizens of Calgary and of the Province of Alberta generally.”

The Statements of Defence further describe Alberta as:

“…a province which is largely Conservative in outlook and governed by the Progressive Conservative Party…”

Not surprisingly, the links between the PC party and the Calgary Herald’s editorial management have caused ructions in the past.

In an earlier posting we explained how Don Martin’s long-time canoodling with Tory bigshots was first revealed in Dr. Bob Bergen’s Exposing the Boss: A Study In Canadian Journalism Ethics, published by Calgary’s Sheldon Chumir Foundation for Ethics in Leadership.

Dr. Bergen is a former Calgary Herald journalist who was awarded a media fellowship by the Chumir Foundation in 2001.

In Chapter Four, pages 20 to 22, Bergen quotes one editor’s experiences with the “deals for stories” regime maintained by the Calgary Herald’s top managers in the mid to late 1990’s:

“I remember clearly the first night I personally encountered it. A big story by (Herald Legislature columnist) Don Martin was coming in. We were told to get ready for a scoop on the government’s new policy on protecting the environmentally sensitive Whaleback region.

“As night city editor, I reacted as I always did to such a circumstance, by assigning available reporters to round up the usual suspects and put together some reaction to the story. The city desker said he had one reporter call Liberals and the New Democratic Party, while another pursued reaction from the environmental community.

“A re-write desker was in the process of weaving the reaction into the main story for the first edition. That’s when I was told there was a deal with the government and, in return for the scoop, there would be no reaction until tomorrow. I refused to take the offending reaction out of the story.

“Another editor took the reaction out.”

A review of Martin’s two Whaleback stories published by the Calgary Herald on May 11, 1999 reveals no mention of Alberta’s opposition parties, much less a comment from an opposition member of the legislative assembly. However the second story is replete with comments from then-Premier Ralph Klein.

Bergen’s Exposing the Boss continues:

“The reaction by some editors on the news desk responsible for the front section to a similar scoop as a result of a deal with the provincial government was the same, former Herald copy editor Christine Mushka recalled.

“My favorite example of an ethical dilemma relates to a Don Martin column. It ran across the top of the Herald’s front page trumpeting that, once again, the Tories were about to post a huge surplus. Trouble is, Martin made no attempt to contact the opposition. Editors who read the story on the rim and objected to a) a column running as a banner news story and b) its total lack of fairness and balance were told by Lorne Motley to just shut up and proof it for typos.”

As with the Whaleback saga, a review of Martin’s budget story published by the Calgary Herald on August 31, 1999 reveals no mention or comment from members of Alberta’s legislative opposition.

Don Martin’s long time contact in the office of Progressive Conservative Premier Ralph Klein was none other than chief of staff Rod Love. Although Love had temporarily left Klein’s employ by 1999, the Klein government’s “deals for stories” arrangement with the Herald had been firmly established years earlier.

In the 2008 Alberta election at issue in this litigation, Rod Love endorsed my main opponent and Liberal incumbent in our constituency of Calgary Currie. It seems I had provoked Love’s ire by campaigning on the need to leave the rudderless Klein era behind, along with its endemic pork-barrel patronage practices.

Other observers have noted the close bond between Love and Martin. On page 59 of his book Ralph Could Have Been A Superstar, political analyst Rich Vivone recalled being “stunned” to receive an email in 2002 from Love regarding Vivone’s bulletin “Insight into Government”:

“Love asked about a partnership with Insight into Government, expanding it to include Don Martin’s political column from Ottawa, and aggressively marketing it in Ontario ‘to make some real money.’”

Vivone wrote that he wasn’t sure Love was serious, but that a trio of editors on the same newsletter wouldn’t work, and that “this wouldn’t be a good marriage…”

For his own part, Don Martin isn’t shy in heaping praise on Love.

In his celebration of the Klein era, King Ralph: The Political Life and Success of Ralph Klein, Martin regales the reader with tales of his frequent boozy interludes with the former premier and his Mr. Fixit, Rod Love.

“I’ve given Donny more scoops than any other journalist,” Martin quotes Klein boasting on page 231.

Elsewhere in the book, Klein maintains that “leaks are political currency”, while Love tells Martin: “The essence of our leak strategy on any particular issue is what do we want to leak to whom to get maximum benefit for the organization.”

In a passage that resonates eerily with the facts of this case, Martin goes on to detail Love’s strategy for leaking first to the National Post, then to the Calgary Herald or Calgary Sun.

Fittingly, the last word on the subject belongs to Rod Love. In his own article for the Calgary Herald published on August 1, 1999, headlined:

Leaks are an exercise in power

Love wrote:

“A smart leak also is a solitary act. No matter how many people are suspects, if only one person really knows for sure who did it, it’s a clean getaway.”

Clean getaway? In this case? That will be determined at trial, a very different venue for the forensic analysis and adjudication of those solitary acts…

Martin-Love Conflict of Interest Mars CTV

2011-12-10T17:03:00.005-07:00

Ex-newspaperman Don Martin’s self-professed conflict of interest with backroom political operator Rod Love has resurfaced on CTV’s news channel, showcasing two of the defendants in the lawsuit chronicled in these web pages.

In an interview telecast on Power Play the day before the first vote for the new leader of Alberta’s Progressive Conservative party, host Martin set the stage for his guest to give a classic rendition of what Martin has described in print as Love’s “genius” for “advanced media manipulation.”

Defendant Rod Love

Martin threw to Love predictably enough with: “Joining me is the strategist who guided Ralph Klein to victory in 1992, Rod Love is in Calgary.”

But then Martin added:

“Rod, first of all you’re not affiliated with any of these six, right? Let’s just get that figured out right away.”

Love answered on the link from Calgary: “That’s correct. I’m sitting this one out.”

Then the notorious political gamester waxed eloquent about only one of the six candidates for PC leader: the former health minister under Ralph Klein, Gary Mar.

Mar became infamous for controversial consulants contracts between his government’s health authority in Calgary and two of Mar’s sidekicks, Kelly Charlebois – and one Roderick Love, Klein’s former chief of staff.

Love told CTV viewers: “I think of the six candidates, if you want my personal opinion, and I’m sure that’s why you invited me on the show… Gary Mar is a lock to move on to the second round.”

Candidate Doug Griffiths, Love said, would not make the second round. Love mentioned no other candidate by name, including the eventual dark horse winner, Alison Redford – though he took the opportunity to dismiss Redford’s key policy pitch, fixing Alberta’s chronically ailing health care system.

Also missing from Martin’s chummy soft-ball exchange with his long time source was any discussion at all about another small detail: published reports that Love was indeed one of Gary Mar’s key backers in the leadership contest.

Global News reported in early March that Mar would join the race, posting on the outlet’s website:

“Mar will have some familiar faces on his campaign team. Rod Love is one of the key advisors…”

Canadian Press picked up the story and published it nationally. There is no record of Love denying the story or requesting a correction.

Martin continues to appear on CTV News Channel’s Power Play.

The transcript of the opening minutes of Martin’s exchange with Rod Love on Friday, September 16, 2011 is as follows:

Don Martin:

Well for the last forty years in Alberta, being leader of the Progressive Conservatives meant you were the province’s premier. This natural governing dynasty is voting Saturday for six candidates vying to replace Ed Stelmach. If no-one grabs 50% of the vote, another ballot will be held October 1st.

Joining me is the strategist who guided Ralph Klein to victory in 1992. Rod Love is in Calgary. Rod, first of all you’re not affiliated with any of these six, right? Let’s just get that figured out right away.

Rod Love:

That’s correct, I’m sitting this one out.

Martin:

O.K. I’m looking at the candidates, and you know, there is fairly good representation from right across the spectrum. What’s your read on how this thing is playing out? Is there going to be like a divide to the left and right taking shape? Who’s gonna win?

Love:

Well as always in Alberta there’ll be a north-south split. There has been in Alberta since Calgary got the railroad and Edmonton got the capital. But I think of the six candidates, if you want my personal opinion, and I’m sure that’s why you invited me on the show, I think…

Martin:

Ha, ha, yes…

Love:

…the top three move on to a second round of balloting. I think Gary Mar is a lock to move on to the second round. I think Doug Griffiths has got a bright career in Alberta politics, but not this time around, he will not make the second round. So the dynamic right now is that of those remaining four, who are the two that get to that second round of voting on October 1^st.

Here is the complete text of the Global News and Canadian Press stories dated March 9, 2011:

Gary Mar to run for Alberta’s top job

Global News : Wednesday, March 09, 2011 12:00 AM

CALGARY – The list of those wanting to take over Alberta’s top job is about to get longer.

Global News has learned that Calgarian Gary Mar will be the 5th person hoping to take over Premier Stelmach’s post when he steps down in September.

Mar is currently serving as Alberta’s representative in Washington, D.C.

Mar will fly into Calgary later this week – on Saturday he will be at the Regency Palace restaurant in Chinatown to meet with his backers.

Next week, Mar is expected to formally announce he will be entering the leadership race.

Political Analyst Duane Bratt says Mar has some key advantages including a large amount of funding, a good campaign team and perhaps most importantly, no political baggage.

“He’s not associated with the Stelmach government, he’s been in Washington representing Alberta but without the baggage,” says Bratt.

“A true die hard Tory but without any connection to the current unpopular government. You put all that together and he will be a force to be reckoned with.”

Mar will have some familiar faces on his campaign team.

Rod Love is one of the key advisors – Love served as chief of staff to Ralph Klein during Klein’s tenure as Mayor of Calgary and Alberta Premier.

Members from Barb Higgins civic election campaign team have also signed up for the run.

Global News says former minister Gary Mar to run to replace Stelmach

Posted on Wed, Mar 9, 2011, 9:46 pm by Canadian Press

CALGARY – Global News says it has learned that former cabinet minister Gary Mar will run to become premier of Alberta.

Mar would be the fifth person to vie for Ed Stelmach’s job when he steps down in September.

Mar is currently serving as Alberta’s representative in Washington, D.C.

Global News says Mar will make a formal announcement next week.

Political analyst Duane Bratt of Mount Royal University says Mar has some key advantages including a large amount of funding and a good campaign team.

Most importantly, Bratt says Mar has no political baggage.

“He’s not associated with the Stelmach government,” says Bratt. “A true die-hard Tory but without any connection to the current unpopular government. You put all that in a package and he will be a force to be reckoned with.”

Global News also reports that Rod Love, former premier Ralph Klein’s chief of staff, will serve as one of Mar’s key advisors.

Mar served in both the health and education portfolios under Klein.

The others running for the leadership of the Alberta Conservatives are Ted Morton, Doug Horner, Alison Redford and Doug Griffiths.

Outing Tory Pals Costs Newspapers

2011-12-10T16:55:00.016-07:00

An Alberta judge has ordered a Conservative lawyer and Canada’s largest newspaper chain to jointly pay this reporter and former candidate the costs of a key court application in the $8 million defamation lawsuit Kent v. Martin, National Post et al.

The court's ruling also directs the media defendants to pay the costs of a second application to report the lawyer to the Law Society of Alberta.

Pivotal to the ruling was the voluntary disclosure of the identity of an anonymous source central to the article impugned in the case, written by former National Post and Calgary Herald employee Don Martin.

"The voluntary disclosure by Don Martin clearly changed the game,” Justice Dallas K. Miller wrote in his decision released on the Justice Alberta website on November 15th.

The ruling refers specifically to Martin's production of emails during his questioning under oath that reveal his communications with Kristine Robidoux, Q.C., who was my Legal Counsel and Official Agent during the 2008 Alberta provincial election.

Documents filed with the court indicate that Martin has stated under oath that he has known Robidoux, Q.C. since 2005 and has had "three or four nights out, dinners, lunches with her."

Martin also disclosed two other sources: Rod Love, a Progressive Conservative party lobbyist with whom Martin boasts of benefiting from a “conflict of interest”; and Alan Hallman, another PC party backroom activist. Documents filed with the court indicate that Martin has stated under oath that he has known Love since 1980 and Hallman since 1997.**

Separately, Hallman has sued Martin and the corporate media defendants.

Co-Defendants Don Martin (left) and Rod Love
(as recently reunited on national TV)

Martin’s article appeared during my campaign as a PC candidate in 2008. It was published after I called for the reform of the PC party’s patronage practices, and for an end to the culture of entitlement enjoyed by the party’s insiders, lobbyists and appointment-seekers.

The article is harshly critical, factually inaccurate and includes no comment from me or my supporters. I had never met nor spoken to Martin, who wrote the article in Ottawa, some 3,500 kilometers from the election in Calgary.

Both the National Post and Calgary Herald refuse to publish my response.

Now, nearly four years later and as another Alberta election nears, the attack article continues to be published on 13 websites owned by Postmedia Network Inc., and formerly by the bankrupt Canwest group.

In the conspiracy-to-defame action before the Court of Queen’s Bench in Calgary, Rod Love and Alan Hallman were named as defendants last June, two months after an earlier ruling added Robidoux, Q.C. and ten “John Does” to the lawsuit.

Previously, lawyers for both the newspapers and Robidoux, Q.C. vigorously opposed the joining of the politically connected solicitor as a defendant.

But following a full day Special Chambers hearing before Justice Miller in February, the motion to join Robidoux, Q.C. was decided in my favour, as was my separate application for leave to report her to her professional regulator, the Law Society of Alberta.

When the parties returned before Justice Miller on October 11th to argue costs for the February court battle, lawyers for the newspapers and Robidoux, Q.C. argued that it was their clients, not the plaintiff, who deserved payment.

Their reasoning: as plaintiff, I had been the party seeking the court’s permission to amend the pleadings in my Statement of Claim.

The court rejected that argument, instead awarding costs to me. In his decision Justice Miller writes:

“…there is no way Arthur Kent could have gotten his pleadings right at the time of filing his Statement of Claim because he had no knowledge of Kristine Robidoux’s involvement until it was disclosed by Don Martin."

The decision further states:

“This amendment application was clearly not routine or typical. It arose as a result of a surprising disclosure by a Defendant in the discovery process.

“After having a new Claim struck as a result of that information, Arthur Kent brought the application to amend, and it was the Defendants that insisted on a Special Chambers application.”

Justice Miller noted that some of the evidence placed before him at the February hearing had been filed improperly:

“One Defendant also filed Affidavit material outside the time directed by the Case Management Justice.”

This refers to an affidavit filed by Robidoux, Q.C.’s lawyer David Pick. In addition to being late, the affidavit was sworn by Pick’s legal assistant rather than by Robidoux, Q.C. herself. This prevented effective cross-examination by my lawyers.

As well, Justice Miller’s ruling on costs stresses that lawyers for Robidoux, Q.C. and the newspapers had argued that I had breached Martin’s rights to have his discovery testimony remain secret, under a rule known as the implied undertaking of confidentiality.

However, the Court previously found against that argument, too.

In his ruling on the February hearing, Justice Miller wrote: “To say that information that is disclosed by a defendant at a pre-trial discovery cannot be used to add parties and amend pleadings in that same action is simply wrong.”

Consistent with that reasoning, Justice Miller states in his November costs decision:

“The amendment of the Statement of Claim by Arthur Kent was opposed… on the basis that the “implied undertaking rule” applied and the Plaintiff was not able to use the information as he intended, and in fact, the Plaintiff’s action was an abuse of process.

“Accordingly, on the application for amending the pleadings by Arthur Kent, I am satisfied that he is entitled to his party-party costs…”

Regarding “the division of payment” Justice Miller decided:

“…the collective media Defendants shall pay 50% of the costs and Kristine Robidoux, Q.C. should pay 50% of the costs.”

The ruling would appear to mark a precedent in Canada.

Never before has a major news organization been ordered to pay costs jointly with an activist from a governing political party over a procedural clash in a defamation action.

Considering that the voluntary disclosure of that political figure’s name as an anonymous source “changed the game,” and that the political figure acted covertly while serving as the lawyer and official agent for the target of the impugned article, Kent v. Martin, National Post et al is breaking fresh ground in exposing the murky connections among some lawyers, journalists and political power brokers.

The revelations have emerged before the case has come to trial due to the positions taken by the defendants, who made it necessary for these and other applications to be judged in public courtrooms, and on the public record.

Earlier in the litigation, lawyers for the National Post and Calgary Herald went to extraordinary lengths to keep secret the identity of their Conservative lawyer source, despite Martin already having disclosed Robidoux, Q.C. during his questioning. The newspapers even resorted to securing a partial sealing order in May of 2010.

Normally in Western democracies news organizations vigorously resist publication bans and sealing orders.

However by the time the two applications came before the court last February, the National Post’s sealing order had become academic, and in a most puzzling way.

While the Post’s solicitors from the Calgary law firm of Parlee McLaws continued to describe Robidoux, Q.C. in their written brief as “the confidential source,” her own lawyer told Justice Miller in open court:

“She’s not arguing that she was a confidential source.”

That inconsistency is rivalled by another ironic twist, this time regarding my application for leave to report Robidoux, Q.C.'s misconduct to the Law Society of Alberta.

The news media defendants alone became liable to pay costs resulting from a failed attempt to defeat this motion. True enough, Robidoux, Q.C.’s lawyers had informed the court that they intended to oppose the Law Society application.

One of them, Peter Linder, complained on the record about “the application that’s been brought to file a complaint” against Robidoux, Q.C., and “the scandalous, vexatious and defamatory nature” of the materials filed.

“And I intend to bring an application in that regard,” Linder told our case management judge two months prior to the February Special Chambers.

But that pledge proved empty. Linder's application never materialized. And Robidoux, Q.C.’s other lawyer, David Pick, also failed to formally oppose the Law Society application.

Consequently Justice Miller states in his ruling on costs:

“With respect to the application for relief from the implied undertaking rule in order to report Kristine Robidoux, Q.C. it is clear that Arthur Kent needed to obtain a court order.

“Given the history of this matter it could have simply been brought before the Case Management Justice. However, because of the position taken by the media Defendants and Kristine Robidoux, Q.C., it appears that Arthur Kent had no choice but to bring a Special Chambers application…

“At the hearing itself, Robidoux, Q.C.’s lawyers presented no formal opposition to the application."

The ruling concludes:

“Accordingly, I order that with respect to the Law Society application, the collective media Defendants shall pay Arthur Kent costs under the appropriate Schedule C Column including the costs of this application and related disbursements and GST."

That's another first: never before has a Canadian news organization been ordered to pay court costs arising from a citizen’s quest to file a formal complaint about his lawyer’s misconduct.

The case continues towards trial.

** All of the individual and corporate defendants in Kent v. Martin, The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd., and Canwest MediaWorks Inc., Kristine Robidoux, Q.C., Roderick Love, Alan Hallman, Bruce Thorpe and Bill Smith have filed Statements of Defence disputing the claims brought before the court in the Plaintiff's amended pleadings. These claims are as yet unproven and will be decided at trial.

Martin Sued By Outed Tory Source

2011-09-17T12:32:00.006-06:00

Ex-newspaperman Don Martin and the corporate defendants in Kent v. Martin, National Post et al have been sued by their fellow defendant Alan Hallman, an Alberta PC party “insider” and backroom activist.

Hallman’s claim against the “Third Party Defendants” blames Martin, now a CTV News host, and Martin’s former employers at the National Post and Calgary Herald, for Hallman’s recent addition as a defendant to my $8 million conspiracy-to-defame action.

With the Third Party Claim, Hallman seeks to be covered by the media defendants for “any amount which the Plaintiff (Kent) may recover against Hallman.”

The claim was filed Sept. 7th at Calgary’s Court of Queen’s Bench, where it forms part of the public record of these actions.

The lawsuits are the result of an article by Martin published in the midst of my candidacy in the 2008 Alberta election. Still now, the article is re-published each day in the news pages of the nationalpost.com and calgaryherald.com websites.

Alan Hallman’s claim, which is a subordinate action to the main lawsuit, states that: “Hallman provided a certain Opinion to the Third Party Defendant,” and that:

“Hallman’s participation in that discussion with the Third Party Defendant, Don Martin, was contingent upon an express or implied representation by the Third Party Defendants that the discussion, or discussions, would be privileged or confidential.

“Hallman relied upon that representation of privilege and confidentiality, in providing the Opinion to the Third Party Defendant, Don Martin.”

In documents filed with the court in this litigation, Martin states that Hallman has been one of his regular sources over the years, and was routinely afforded anonymity by Martin.

Hallman’s claim continues:

“The Third Party Defendants owed Hallman a duty of care to maintain the confidentiality and privilege of his discussions with the Defendant, Don Martin, which discussions led to Hallman providing the Opinion to the Defendant, Don Martin.”

Hallman’s claim alleges that Martin and his former employers “breached their legal obligations to Hallman” by “failing to maintain privilege over, or alternatively, to keep confidential, Hallman’s name as a source the Third Party Defendants consulted in preparing the Article.”

The claim cites as additional breaches: “discussing the particulars of telephone discussions” between Hallman and Martin, and “failing to provide Hallman with a reasonable opportunity” to review the draft article “and provide any comments or clarifications in respect thereof” prior to publication.

The manner in which Hallman’s cloak of anonymity was lifted is contained in the court record.

Filed documents show that Martin and the newspapers’ lawyer, Scott Watson of the law firm Parlee McLaws, voluntarily produced two email documents consisting of six pages of text at Martin’s examination for discovery on July 14, 2009.

Entered as Exhibits D-1 and D-2, the email streams feature exchanges between Martin and Kristine Robidoux, Q.C., my campaign Legal Counsel and Official Agent in the 2008 Alberta election, who is also a defendant in this action.

In the D-1 stream, Martin asks Robidoux, Q.C. if there is “Any more dirt?” she can provide on my campaign.

Robidoux, Q.C. complies with false assertions.

In a subsequent email, Martin tells her: “Talked to Hallman and Love. They’ve never seen anything like this guy before…”

Under oath during his examination, Martin provided details of his communications with each of his article’s three anonymous sources: Robidoux, Hallman and Rod Love.

Like Hallman, Love is a well known Tory “insider.” Martin and his employers have published Martin’s boast of having benefited from, in Martin’s own words, a “conflict of interest” with Love. Martin describes Love as a “genius” in the practice of “advanced media manipulation.” (See 1 below.)

The decision by Martin, Watson, the corporate media defendants and Robidoux, Q.C. to reveal the source-rich D-1 and D-2 email streams was made before Martin’s examination took place, according to written and oral submissions to the court.

In other words, the decision to disclose the documents and their contents was made before Martin was asked by my lawyer who he had spoken to in preparing his article.

Martin’s editor-in-chief at the Calgary Herald, Lorne Motley, stated in an affidavit sworn March 12, 2010 that:

“On the morning of July 14, 2009, prior to the examination for discovery of Mr. Martin, the Defendants and the Confidential Source met to discuss the assurances that had been provided that the Confidential Source’s identity not be revealed. The Defendants and the Confidential Source agreed at that time that, for the limited purpose of the examination for discovery of Mr. Martin, the Email Correspondence, in its entirety, would be provided to the Plaintiff.”

Submissions to the court make clear that the source referred to is Kristine Robidoux, Q.C.

Watson, the media defendants’ lawyer, stated in a brief filed earlier this year that:

“The identity of the Confidential Source was revealed solely on the understanding that the Confidential Source’s identity would remain anonymous and be protected by the implied undertaking rule.” (See 2 below.)

However that rule of discovery confidentiality does not preclude the use of information gleaned from examinations to join new defendants to the same lawsuit.

In allowing me to add Robidoux, Q.C. and ten “John Doe” defendants to the Martin/National Post action, Justice Dallas Miller wrote in his decision of April 29, 2011:

“To say that information that is disclosed by a defendant at a pre-trial discovery cannot be used to add parties and amend pleadings in that same action is simply wrong.”

Justice Miller wrote:

“I note that Don Martin freely chose not to protect his journalist source in Robidoux. It turns out, that if what is alleged by Arthur Kent is true, his own lawyer appears to have breached solicitor-client privilege, for which she was not protected as a source by the Defendant.

“Arthur Kent, who is now in possession of this rather damning information, seeks not to use it for an extraneous purpose but rather to advance his original claim in which the discovery took place.”

With the Miller ruling, Robidoux, Q.C. became a named defendant in Kent v. Martin, National Post et al. A subsequent ruling allowed me to rename four of the John Does as Roderick Love, Alan Hallman, Bruce Thorpe and Bill Smith.

Smith, currently the PC party’s president, was the PC’s vice-president in 2008. Along with Robidoux, Q.C., Smith was a co-recipient of the Exhibit D-2 stream of email messages. The document shows that Robidoux retained and resent the email stream to Martin in May of 2008, some three months after the article was published.

Martin states in transcripts filed with the court that the re-send of the D-2 emails came after he had learned that this lawsuit might be filed, and that Robidoux had sought to “keep her fingerprints off” the leaked document.

Hallman’s Third Party Claim against the media defendants comes at a time when further discord threatens to erupt among the parties.

Specifically, defendant Bill Smith and the Herald’s Lorne Motley appear to be on a collision course over another of the Calgary Herald’s leaks-gone-wrong from an anonymous Tory source.

At issue is an allegedly incomplete, “salted” or stacked PC party membership list that was provided to the Herald by a person or persons unnamed. In turn, the newspaper gave the list to Environics, the pollsters contracted by the Herald to measure voter preferences for today’s Alberta Tory leadership election.

Leadership candidate Rick Orman has demanded an investigation of the leak, branding the list “gerrymandered” or altered to favour a campaign team or teams as yet unknown.

PC president Smith acknowledged on the party’s website that the list leaked to the Herald doesn’t accurately reflect the party membership eligible to participate in the first round of voting today.

Lorne Motley of the Herald disagrees. He insists the list is accurate, and that the Herald stands by both the list and the poll based upon it.

The newspaper’s management is equally determined to declare its bias in the Tory leadership contest. In a lead editorial, the Herald advocates candidate Gary Mar as Alberta’s 14th Premier, replacing the hapless Ed Stelmach.

This could arguably be the kiss of death: the Herald officially endorsed Stelmach in the 2008 election, and ever since has tracked the fated premier’s blunders and ultimate downfall.

Coming soon to these pages… The ultimate hypocrisy: how two outed Tory sources are attacking this website for reporting the truth.

1. Transcript pages of Martin’s examination show that Martin granted “reflexive” anonymity to Love, which Martin states is “sort of an ongoing relationship with us.”

With regard to Hallman’s role in the article, Martin’s transcript states: “Again, it's the same understanding that I always have with Mr. Hallman, that it's not on the record.”

This would appear to be starkly at odds with the journalistic ethics, standards and practice directives of the National Post, the Calgary Herald and Canwest, as produced by the media defendants in this action.

Martin’s article was published with no comment from me or my supporters within our core campaign team.

Both the National Post and Calgary Herald refused to publish my response and persist in re-publishing the article on their websites under the ownership and management of Postmedia Network Inc., which purchased Canada’s largest newspaper chain after Canwest’s bankruptcy in 2010.

A separate $3 million lawsuit against Postmedia, CEO Paul Godfrey et al is ongoing.

2. Watson’s assertion that a source’s identity can somehow be revealed, then concealed again is at odds with the May, 2010 decision of the Supreme Court of Canada in R v. National Post (ironically, the same National Post represented by Watson in Kent v Martin et al.)

Writing for the majority, Justice Binnie states at paragraph 63 of the R v. National Post decision:

“In a test of balancing the public interest in disclosure versus the public interest in confidentiality neither the journalist nor the secret source "owns" the privilege.

“Thus where a secret source decides for whatever reason to cast aside the cloak of anonymity the public interest no longer "sedulously fosters" the continuation of the confidential relationship in preference to openness and the search for the truth.”

Court Rejects Godfrey's Escape Bid

2011-07-26T08:33:00.001-06:00

An attempt by newspaper mogul Paul Godfrey to be removed as a named defendant in Kent v. Postmedia, National Post et al has failed amid concerns over “problematic” affidavit evidence produced by Godfrey’s lawyers.

“I am not satisfied that Mr. Godfrey should be removed as a Defendant in this action and I therefore dismiss the application,” wrote Justice William Tilleman in a decision released July 22nd, four days after a hearing before the Court of Queen’s Bench in Calgary.

The memorandum of decision states that Justice Tilleman was “troubled” by the late filing of an affidavit sworn not by Godfrey but by the editor-in-chief of the Calgary Herald, Lorne Motley.

My lawyer Michael Bates argued that the Motley document, as well as Motley’s earlier affidavit sworn before the filing deadline, constituted insufficient evidence because it dealt only in generalities based on the assertions and beliefs of someone other than the subject of the application.

Justice Tilleman ruled: “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.”

The decision directs the defendants to pay my costs in opposing the failed application.

Paul Godfrey extols his management virtues on YouTube.

The lawsuit Kent v. Postmedia, National Post, Paul Godfrey and Gordon Fisher was filed last November following Postmedia’s republication of an article by Don Martin on their nationalpost.com and calgaryherald.com websites.

The article was originally published in February of 2008 by the Canwest group, the former owners the National Post and Calgary Herald. Godfrey’s Postmedia Network Inc., a group of mainly American hedge funds, purchased the Canwest newspapers out of bankruptcy in 2010.

Martin’s article had been the subject of a separate defamation lawsuit, Kent v. Martin, National Post, Canwest et al, for two years prior to Postmedia’s formal takeover of Canwest’s newspapers and websites on July 13, 2010.

Now that Godfrey’s status is affirmed, the two lawsuits appear certain to be consolidated, with the $3 million Postmedia action proceeding through case management in step with the $8 million conspiracy-to-defame Canwest action.

As a result, Paul Godfrey finds himself a named defendant in a lawsuit described by his own lawyers (in yet another affidavit from Motley) as “similar, if not identical in nature” to an action featuring defendants like political backroom operator Rod Love, Alberta Progressive Conservative party president Bill Smith and Tory lawyer Kristine Robidoux, Q.C.

In other words, one of Canada’s most prominent news media magnates now appears before the courts alongside three controversial political figures, in cases alleging electoral sabotage resulting from the cozy relationships among journalists, politicians and politically active lawyers.

According to our research, this is unprecedented in Canada’s modern history. (If anyone reading this assertion has evidence to the contrary, please send it along.)

As CEO, President and Chairman of the Board of Directors of Postmedia, Inc., Godfrey was personally served at his home in Toronto on October 12, 2010 with notice that legal action would be commenced due to the republication of the Martin article. Neither Godfrey nor his lawyers responded to the notice.

As a result, Godfrey was personally served with the Statement of Claim in the offices of the National Post on November 12, 2010.

However, Godfrey’s application to be removed as a named defendant came nearly seven months later, on June 3, 2011.

In the meantime he had defended several stages of the litigation, including the filing of a Statement of Defence on December 15, 2010 and the swearing of an Affidavit of Records on April 14, 2011.

The first indication that Godfrey would apply to be removed from the lawsuit came when my lawyer contacted Postmedia’s lawyer requesting dates for Godfrey’s examination for discovery, his questioning under oath.

Godfrey’s lawyer, Scott Watson of the Calgary firm Parlee McLaws, protested that scheduling discovery was “premature,” in part because Godfrey is “an unnecessary party to the action…”

Now that Godfrey’s status as a defendant has been affirmed by the Court of Queen’s Bench, my lawyers will secure dates for his questioning without further delay.

In dismissing Godfrey’s motion to be removed, Justice Tilleman states:

“…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.”

Had Godfrey sworn his own affidavit to put direct evidence that he is not a proper party to the action, the Rules of Court would have enabled me to cross-examine him under oath.

My lawyers would have questioned him in detail about claims, such as this one expressed in the Motley affidavit, 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.”

However, beyond the issue of Godfrey’s personal involvement with the republication of the Martin article, my Statement of Claim focuses on his failure to take corrective measures as chief executive and a director of the newspaper group:

14. On two occasions, on or about August 18, 2010 and October 12, 2010, Kent caused to be delivered to Postmedia, Godfrey and Fisher notices setting out the defamatory nature of the Article and requesting that the Article be removed from the National Post website. None of Postmedia, Godfrey or Fisher has ever replied to Kent’s request that the Article be removed and in fact the Article remains in continuous worldwide publication.

…and:

20. On two occasions, on about August 18, 2010 and October 12, 2010, as aforesaid, Kent caused to be delivered to Postmedia, Godfrey and Fisher notices setting out the defamatory nature of the Article. Despite receiving these notices, the Defendants Postmedia, Godfrey and Fisher each have since July 13, 2010 continued to publish and/or authorize the publication of the Article and the defamatory statements complained of in this Statement of Claim with the knowledge that the meanings conveyed by the words of the Article were false, or alternatively, with reckless indifference whether they were true or false.

Significantly, both Godfrey and Fisher served as top executives of the National Post in the Canwest era while litigation against the article was ongoing.

As well, the former legal counsel of the now-defunct Canwest Publishing, Steven Pasternak, is currently vice president of legal affairs for Godfrey at Postmedia Network Inc.

Affidavit Of Arthur Kent

2011-07-09T17:26:00.016-06:00

I, ARTHUR KENT, of the City of Calgary, Alberta, SWEAR AND SAY THAT:

I am the Plaintiff in this action and, as such, have personal knowledge of all matters hereinafter deposed except where otherwise stated in which case I verily believe same to be true.

2. I have previously sworn an Affidavit in these proceedings on December 15, 2010 in support of an application to amend my claim and add Kristine Robidoux, Q.C. as a Defendant. Throughout this Affidavit I incorporate by reference the evidence contained in the December 15, 2010 Affidavit with citations described as “Kent December 15, 2010”.

3. On May 24, 2010 the Defendants Don Martin, The National Post Company, Canwest Publishing INC., National Post Holdings LTD., Canwest Mediaworks INC. (the “Media Defendants”) produced hundreds of pages of emails of Bruce Thorpe (the “Thorpe Disclosure”), my campaign manager during the 2008 Alberta General Election (the “2008 Election”).

4. Having made a full and complete review of all of the records and discovery in this Action in conjunction with the Thorpe Disclosure, and with my prior knowledge and understanding of each of Roderick Love, Alan Hallman, Bruce Thorpe and Bill Smith and where they fit within the hierarchy of the Alberta Progressive Conservative Party (the “PC Party”), I am now in a position to identify each of them as one of the John Does previously joined as Defendants to this Action. Attached hereto as Exhibit “A” is a true copy of my proposed Amended Amended Amended Statement of Claim in this regard.

5. It is beyond dispute that both Love and Hallman hold themselves out as and are commonly known as political lobbyists and PC Party activists who make a significant part of their living engaging in electoral politics in Alberta with and on behalf of the PC Party.

6. In their publications, the Media Defendants have described Hallman as being “in the business of connecting clients with the government” as seen in a Calgary Herald story of October 20, 2009, a true copy of which is attached hereto as Exhibit “B”.

7. In their publications, the Media Defendants have described how Love, who was former Premier Ralph Klein’s Chief of Staff, was paid “$350 an hour for ‘verbal advice’” in a “$42,000 contract with the provincially-funded health authority”, which was part of “more than $400,000 in consulting fees” paid to Love by the government between 2001 and 2006 as seen in an Edmonton Journal story dated May 9, 2006, a true copy of which is attached hereto as Exhibit “C”.

8. Both Love and Hallman make a practice of regularly engaging in comment to the media, and in particular to the Media Defendants’ publications, for the purposes of assisting the PC Party with its public relations agenda. Both Love and Hallman agree to comment for attribution and the Media Defendants regularly publish comments attributed to Love and Hallman, as in the true copies of the Calgary Herald and Edmonton Journal stories attached hereto collectively as Exhibit “D”.

9. During the nominating and electoral periods of the 2008 Election, Love and Hallman took issue with my candidacy due to my suggestions that the PC Party and government needed to put an end to its culture of patronage and develop policies more responsive to the needs and aspirations of Albertans. Love publicly endorsed my Liberal party opponent in the local Calgary media. A true copy of the CBC’s website story is attached hereto as Exhibit “E”.

10. Hallman’s demonstrated hostility towards me is the result of my dismissing him from my campaign team during the nominating race in November of 2007. In an email addressed to me and Defendant Kristine Robidoux, Q.C., Hallman proposed offering an inducement to a nomination rival to persuade her to drop out of the race. A true copy of this stream of emails is attached hereto as Exhibit “F”. In the first email on document 0563, Hallman states:

Is there a carrot we can offer her to make this an easier decision for her.

11. In the email exchange on document 0560, I told Hallman “that’s not the way I wish to proceed”. Thus I informed Hallman that our team “will not be requiring you, your company or your associates for our activities going forward.” Hallman responded by telling me “Your email was rude. All the best Art.”

12. Some four months later, on the election night of March 3, 2008, and in the aftermath of the events detailed in the remainder of this Affidavit below, Hallman sent the email to me on document 0562, which states:

And you lost. Well done. Call anytime.

Alan Hallman

13. Unknown to me, during the 2008 Election, Robidoux, Q.C. was apparently providing legal counsel not only to me but also to Bill Smith, then the vice-president of the PC Party. (Kent December 15, 2010, at Tab “J”).

14. Unknown to me, Smith, Robidoux, Q.C. and others established and maintained a back-channel of communications with a few members of my campaign team, including Bruce Thorpe, who I appointed to the post of campaign manager. I was excluded as a recipient of these email communications, which sought to undermine my control of the campaign team in favour of conformity to the PC Party leadership’s directives. (Kent December 15, 2010, at Tab Tabs “L”, “O” and “P”).

15. Thorpe and Smith at all times concealed from me their participation in this back-channel of communications.

16. During the discovery process of this Action, I have come to reasonably believe that Love and Hallman, together with Bruce Thorpe, Bill Smith, Robidoux, Q.C. and others, conspired to defame me and to undermine my campaign for political office, together with Don Martin in the writing of the Article that is the subject of my claim.

17. On the night of February 12, 2008, the Article appeared on the nationalpost.com website. The text attacks my character, reputation and the conduct of my campaign in Calgary Currie. The following day the article appeared in the print editions of the National Post, the Calgary Herald and the Edmonton Journal, and their related websites.

18. Robidoux, Q.C. forwarded to Martin an email written by Thorpe, and which was marked as Exhibit D-2 during the first examination for discovery of Martin, conducted in July of 2009. The D-2 email contained sensitive, confidential and one-sided information about my campaign. Martin relied on the text of the email in writing the Article. (Kent December 15, 2010, at Tab “S”, Martin transcripts page 18, lines 11-16; 185, 15-20).

19. The D-2 email, demonstrates another example of a back-channel communication involving Thorpe, Robidoux, Q.C. and Smith and is evidence of agreement between each of them to “help” each other and other unnamed persons contrary to my interest. (Kent December 15, 2010, Tab “Q”)

20. Robidoux, Q.C. forwarded the D-2 email to Martin to be used as source material for his Article. Robidoux, Q.C. then failed to inform Martin that Thorpe sent a second email stream identical to D-2, only five hours after the first, in which Thorpe states, in reference to the issues or problems identified in the earlier email: “All appears to have been resolved….” (Kent December 15, 2010, Tab “T” Thorpe email Feb. 7, 2008 2:42 PM, page 0114.)

21. In his email communications with Robidoux, Q.C., entered as Exhibit D-1, Martin asked Robidoux for “more dirt”. Martin testified that by dirt he meant he was looking for more problems within our campaign. He ends his request to Robidoux, Q.C. with: “hugs, d.” (Kent December 15, 2010, Tab “Q”, page 2 of Exhibit D-1 email.)

22. Robidoux obliged by supplying Martin with “more dirt” in their Exhibit D-1 exchange of messages. The exchange between Robidoux and Martin reads:

Martin

I see the death spiral for AK continues. Any more dirt? Column runs

tomorrow.

hugs, d

Robidoux:

OMG it’s all bad. I am dealing at this very moment with his official/financial

agent who is resigning today.

Martin:

Can you let me know if he/she does actually resign? Appreciate that. Talked

to Hallman and Love. They’ve never seen anything like this guy before…..

Robidoux:

The premier is making an announcement in an hour – specifically requested

AK’s attendance there, to have a chat. He “declined”. Wowzers. Its all bad

Martin:

Are you shitting me?

Robidoux:

Nope. I was standing with the VP of the party at a fundraiser breakfast this morning when he picked up the voice mail, and he let me listen to it. We were

just incredulous.

23. I believe the “VP of the party” referred to by Robidoux, Q.C. is Smith, however the account relayed to Martin is false: because Smith declined to give my campaign team a time and place for Premier Stelmach’s proposed meeting with me, my team asked me not to lose an entire morning of campaigning by going to the far northeast of the city for a meeting that might never take place.

24. Martin shared an understanding with Robidoux, Q.C. that the email she forwarded was an inside document and that “…she didn’t want to have her fingerprints on relaying that document…” Further, Martin has testified that it was “self-evident” that D-2 was an email that he should not have. (Kent December 15, 2010, Tab “S” Martin transcript page 108, line 20 to 109, line 18; 198, 6 to 20; 198, 16 to 20.)

25. Martin’s Article states that my “financial agent” was rumoured to be on the verge of quitting. This was information conveyed to Martin by Robidoux, Q.C. via the Exhibit D-1 email stream. (Kent December 15, 2010, Tab “Q”.)

26. Stephen Doolan, my financial officer, immediately denied the claim about him in the Article in an email to Thorpe. (Kent December 15, 2010, Tab “Y”, page 0145) which states:

Martin’s article says I have threatened to quit. I have not threatened to quit. Could you please pass this along to Arthur.

27. Doolan’s email is one example of evidence that the damaging information conveyed to Martin by Robidoux, Q.C. and appearing in the article was false.

28. Like Robidoux, Q.C., Thorpe did not inform Martin about my representations to Premier Stelmach about the energy industry’s concerns with his royalty review. (Kent December 15, 2010, Tab “S” Martin transcript page 123, lines 6 to 10.)

29. Like Robidoux, Q.C., Thorpe did not inform Martin that I and the majority of our campaign team were campaigning on the need to leave the Klein/Love era behind, which is what I had referred to in my platform speeches as a metaphorical Jurassic Park. (Kent December 15, 2010, Tab “S” Martin transcript page 141, lines10 to 21.)

30. Thorpe never suggested to Martin that he verify information that Ms. Robidoux, Q.C. and others were providing to him. Thorpe failed to advise Martin that he should speak to me, prior to publishing the information Robidoux, Q.C. had provided to Martin. (Kent December 15, 2010, Martin transcript page 121, lines 4 to 8.)

31. Following his contact with Robidoux, Q.C., Martin spoke with Bruce Thorpe. Martin testified that he did not seek from Thorpe, and Thorpe did not volunteer, my direct phone home and cell phone numbers. As a result of the collective actions of Robidoux, Q.C., Thorpe and Martin, I was not provided a reasonable opportunity to comment prior to the publication of the Martin Article. (Kent December 15, 2010, Martin transcript page 90, line 26 to 91, 2; 121, lines 1 to 8.)

32. The Article was published with no comment or input from me or members of the majority of our campaign team. In addition to Robidoux, Q.C., Martin relied on two other anonymous sources identified at the top of page two of D-1 as “Hallman and Love”. (Kent December 15, 2010, Tab “Q”.)

33. Martin confirmed that Rod Love, Alan Hallman and Robidoux, Q.C. were his anonymous sources for the Article. (Kent December 15, 2010, Tab “S” Martin transcript page 137 lines 22-26; 36, 12-25; 15, 1-27.)

34. Martin states that he has known Love for “28 years” since “September 1980” and has known Hallman since the late 1990’s. (Kent December 15, 2010, Martin transcript page 137, 24-26; and page 104, 19-21.)

35. Martin has “reflexively” afforded Rod Love anonymity regarding leaks provided by Love to Martin. This secrecy is described by Martin as “sort of an ongoing relationship with us.” Martin did not specifically address his mind to whether his three sources were entitled to be accorded anonymity. He testified: “Just as a columnist, that’s sort of how I work,” confirming for a second time that his granting of anonymity was “reflexive”. (Kent December 15, 2010, Martin transcript page 138 lines 3 to 16.)

36. Martin has boasted of benefiting from a long term “conflict of interest” with Love. In an article published by the Media Defendants’ newspapers on December 11, 2010, (Kent December 15, 2010, Tab “G”) Martin describes Love as a practitioner of “advanced media manipulation” and writes:

Conflict of interest declaration: He leaked me almost everything that crossed his desk as Klein’s right-hand man.

37. Martin’s testimony was markedly different six months earlier on June 4, 2010 when he quoted from my rejected rebuttal article (Kent December 15, 2010, Tab “H”; and Tab “S” Martin transcript page 207 lines 1 to 5):

“Virtually every tidbit that Martin has ever written about Klein

came from Love.”

…but then stated for the record:

That’s a bit of an extreme stretch.

38. Martin also afforded Hallman anonymity. Martin’s granting of “reflexive” anonymity to Love and Hallman is at stark contrast to the Media Defendants’ regular publication of Love’s and Hallman’s comments with full attribution. This is among the Article’s numerous violations of the ethics, standards and policy directives of the corporate Defendants. (See “Highlights: Policy Directives”, a true copy of which is attached hereto as Exhibit “G”.)

39. For example, the Calgary Herald Editorial Code of Ethical Policies and Practices cautions employees about relationships with individuals:

“…involved in and associated with the pursuit of political power and lobbying to influence public policy.”

40. Martin was aware that Hallman had been dismissed from our campaign (Kent December 15, 2010, Tab “S” page 135 line 18 to 136, 6; page 13, 9 to 13) but made no effort to verify Hallman’s true familiarity with the team, and therefore his suitability and reliability as an anonymous source.

41. After the Article’s publication, I submitted a responding article to the National Post and the Calgary Herald. Both refused to publish my rebuttal.

42. Some three months later, a member of the Calgary Herald editorial board informed Robidoux, Q.C., and through her other senior PC Party figures, including Smith, that the Herald was still considering publication of my rebuttal. I was excluded as a recipient of this email. Robdioux, Q.C. failed to inform me of her knowledge of the Herald’s deliberations. On May 7, 2008 Thorpe wrote an email to Smith and other senior PC Party figures (Kent December 15, 2010, Tab “X”) stating:

The Currie Executive found out tonight within the next few days the Calgary Herald will likely be publishing an op-ed piece from Mr. Arthur Kent. The source is Kris Robidoux who was chatting with Valerie Fortney while we were waiting for our table.

43. One month later, Thorpe wrote an email (Kent December 15, 2010, Tab “X” page 2) stating:

By the way AK’s mood might be worse after The Calgary Herald is refusing to publish his article.

44. I was excluded as a recipient of these emails. Thorpe, who is a PC Party political activist and not an employee of the corporate Media Defendants, has made his email archive available to the corporate Media Defendants. The history of journalism in Canada includes no other instance of such close cooperation before the Courts between a major news organization and an activist of a governing political party.

45. The publication of the Martin article severely impacted my campaign team’s fundraising efforts. Subsequently, Robidoux, Q.C., Thorpe, Smith and others made an active effort to cast me as being the cause of this problem.

46. On March 7, 2008 Robidoux, Q.C. sent an email to Thorpe, copied to Smith and PC Party executive director Jim Campbell, and referring to PC Party lawyer Sonny Mirth (Kent December 15, 2010, Tab “Y” page 0232), which states:

“…I believe Arthur to be offside Alberta’s Election Finance Act. Full Stop. He will not listen to me. As such, my professional obligations as an officer of the court require me to cease acting in that capacity, lest it be suggested that I am condoning the situation. Sonny Mirth can definitely help us in that regard.”

47. At no time did Robidoux, Q.C. advise me in person, by phone, email or in any other way that she harboured this concern. In my view, that is because her concern was baseless. My final Candidate’s financial statement was completed and filed on time, co-signed by Stephen Doolan and with the concurrence of both Thorpe and Robidoux, Q.C.

48. Some months after the 2008 Election, Robidoux, Q.C.’s friend Lisa Mackintosh emails Thorpe expressing the view that because I had been successful in suing Universal Studios for copyright infringement that I would not take legal action in connection with the defamatory attacks against me during the election campaign. A true copy of this email is attached hereto as Exhibit “H”. In the first message, Thorpe responds (grammatical errors as in original):

Oh under the right circumstances he might. After all we damaged his name as he will always tagged with loser of election in Currie.

49. I swear this Affidavit in support of the relief sought in the Notice of Motion filed on my behalf on June 17, 2011 and for no improper purpose.

50. I have been advised by my solicitor and do verily believe that the Amended Amended Amended Pleading will allow this Honourable Court to better determine the real questions and issues between all of the parties who should properly be before this Honourable Court to answer for the wrongs of which I complain in this Action.

Sworn on June 17, 2011.

Top Tories Outed By Martin To Be Sued

2011-07-09T17:21:00.016-06:00

A Calgary judge has granted leave to add three top Alberta Progressive Conservatives, including party president Bill Smith, as named defendants in the $8 million conspiracy and defamation lawsuit, Kent v. Don Martin, National Post et al.

Two other newly named defendants, Rod Love and Alan Hallman, along with lawyer Kristine Robidoux, Q.C., were revealed by former National Post and Calgary Herald writer Don Martin as his anonymous sources for the article at issue in the action.

Martin disclosed his sources during his examination for discovery, documents filed with the Court show.

His article targeted this journalist and former candidate when I ran for the PC party in my home constituency in the 2008 Alberta election. The article was published in the second week of the campaign, with no comment from me or my supporters within our core campaign team.

I filed the lawsuit in July of 2008 after the National Post and Calgary Herald refused to publish my rebuttal and did not respond to my notice of intent to sue.

A fourth new defendant, my former campaign manager Bruce Thorpe, has also been named. The nature and extent of Thorpe’s relationships with the other named individuals came under scrutiny when hundreds of pages of Thorpe’s emails were provided to the newspaper defendants, who filed them with the Court one year ago, on May 26, 2010.

The case is unprecedented in Canada for the close collaboration in open Court between the political and media defendants, with lawyers acting for the country's largest newspaper chain appearing side by side with solicitors representing a prominent member of a governing political party.

Allowing the renaming of four previously titled “John Doe” defendants, Justice William A. Tilleman decided that my application “far exceeds the threshold” established by relevant legal precedents. (Click here to read the supporting affidavit.)

“The substitution will comprehensively provide the Court with assistance regarding the fuller dispute,” Justice Tilleman concluded. (A previous ruling by Justice D.K. Miller had allowed new defendants to be joined in the action.)

A process server is now seeking the whereabouts of the newly named defendants in order to serve each of them with a copy of the amended Statement of Claim.**See update below.

The new defendants have the right to file a Statement of Defence. No aspects of the claim have been proven in Court. That process will unfold at trial in Calgary when discovery is concluded.

In a video posted on YouTube (pictured below) Bill Smith pitches his party, stating: “I feel I’ve been able to contribute to a better Alberta through the PC party.”

Currently Smith is presiding over the PC party's leadership race. In September, the governing PCs will choose and install, by default, Alberta’s fourteenth premier. Number thirteen, Ed Stelmach, was forced to announce his resignation last January after three calamitous years in office following the 2008 election.

The Martin article was published shortly after tensions arose between this candidate and Stelmach’s senior aides over the premier’s ill-fated, counter-productive energy royalty scheme.

Ignoring the evidence placed before him, Stelmach went ahead with the plan, but was ultimately forced to reverse it in painful increments, and at great cost in terms of jobs, investment and revenue to Alberta’s treasury.

Even the media defendants’ Calgary Herald has branded the royalty fiasco “Stelmach’s biggest blunder.” Martin’s article made no mention of my call for changes to the royalty scheme during the 2008 election, before the plan was implemented. The Herald has not corrected or clarified this omission, despite Stelmach's resignation.

Also at issue in 2008 were my speeches calling for an end to the PC government’s deep-seated patronage culture.

Submissions to the Court show that Don Martin has known Rod Love since Martin’s early years at the Calgary Herald, where he is pictured below, circa 1981.

Martin has an unusual take on journalistic practice: the scribe has boasted in print of having benefited from a long-standing “conflict of interest” with Love, who Martin describes as a “genius” in the practice of “advanced media manipulation.”

In his June 30^th decision, Justice Tilleman writes:

“…Messrs. Love and Hallman were identified in the discoveries on July 14, 2009. In addition, various exhibits to the Plaintiff’s June 17, 2011 affidavit link these gentlemen to the Defendant Martin.

“One of the more prominent allegations linking Mr. Love to Mr. Martin is the comment that Mr. Love gave “…every tidbit that Martin has ever written about [former premier] Klein [to Martin].”

“More specific to this action, the allegations are that Mr. Love, Mr. Hallman and Mr. Martin shared a close relationship regarding at least some of Mr. Martin’s journalistic duties. That, in my view, is sufficient to cross the threshold for bringing Messrs. Love and Hallman into this action.”

At the hearing preceding Justice Tilleman’s decision, my lawyer Michael Bates guided the Court through an exchange of email messages between Martin and Robidoux, Q.C., who was my campaign Legal Counsel and Official Agent.

Robidoux, Q.C. also had a long standing relationship with Martin, Court documents show. By contrast, Martin had never met nor spoken with me, the target of his article, prior to his examination for discovery in this action.

Marked as Exhibit D-1 when produced by Martin in his examination, the exchange reads:

Martin:

I see the death spiral for AK continues. Any more dirt? Column runs

tomorrow.

hugs, d

Robidoux:

OMG it’s all bad. I am dealing at this very moment with his official/financial

agent who is resigning today.

Martin:

Can you let me know if he/she does actually resign?

Appreciate that. Talked to Hallman and Love. They’ve never seen anything

like this guy before…..

Robidoux:

The premier is making an announcement in an hour – specifically requested

AK’s attendance there, to have a chat. He “declined”. Wowzers. Its all bad

Martin:

Are you shitting me?

Robidoux:

Nope. I was standing with the VP of the party at a fundraiser breakfast this

morning when he picked up the voice mail, and he let me listen to it. We were

just incredulous.

- - - - -

Documents filed with the Court refute the claims in these messages, and show that my Chief Financial Officer had not threatened to resign, and did not do so.

Martin sent an email to our campaign website stating that he wished to speak with me, but by the time I opened and read it, the article had already been published on the National Post website. Unlike his message to Robidoux, Q.C., Martin's message to me did not specify the planned date of publication.

Martin did not call me prior to publication, despite my direct contact information being on file at the Calgary Herald, to which I was a frequent contributor, from the start of my career at the newspaper in June of 1973 until January 1, 2008, six weeks prior to the publication of Martin's article.

In his decision Justice Tilleman writes of Bill Smith:

“Email exchanges are also the basis for the proposed involvement of Mr. Smith, who was apparently the Vice-President of the Alberta Conservative Party at the relevant time which of course was related to the potential new occupation of the Plaintiff.

“Mr. Smith had emails forwarded to him from now-Defendant Ms. Robidoux, Q.C., who was then counsel to the Plaintiff. They directly involve and discuss the Plaintiff.”

Justice Tilleman continues:

“The involvement of Mr. Thorpe comes from his more prominent and self-explanatory role as the Plaintiff’s campaign manager but that is only the starting point. The Plaintiff also alleges Mr. Thorpe should be a Defendant because of his communications inter se to the three other individuals (and others) regarding inter alia, the comments of the Defendant Martin.

“In summary, the substitution of the Defendants is founded upon their link to the Plaintiff and arises from the many emails and other communications documented in the filed materials as between one or more of the four, and often, several of them.”

Justice Tilleman’s ruling comes at a time when the press and political elite in one of Canada’s mother countries, the United Kingdom, is being rocked by the News of the World phone hacking scandal.

While there is no suggestion of intercepted cell phone messages in this action, the conspiracy claim against newspaper and political defendants has one key element in common with the News Corporation scandal: snug, smug and unwholesome links between big media and big government.

Any Albertan contemplating the “democracy deficit” plaguing Canada’s energy province should reflect carefully on British Prime Minister David Cameron’s admission that his own country’s politicians and press figures have become too closely connected.

Cameron says: "The truth is, we've all been in this together. Party leaders were so keen to win the support of newspapers that we turned a blind eye to the need to sort this issue. The people in power knew things weren't right but they didn't do enough quickly enough.”

The difference in Alberta is that virtually none of the province’s leaders in the fields of journalism and politics are openly discussing the PC party’s longstanding links with the Calgary Herald’s management and some of its journalists, and through them, the country-wide influence of the National Post and other Postmedia dailies.

To the contrary, at least one of the defendants in this action is fervently seeking to keep the lid on, as you will read in future postings here.

Meantime, we publish a timely reminder of why this website is tracking the progress of these litigations. In my lawyers’ words:

“Kent relies on his rights of freedom of expression and freedom of the press as guaranteed by section 2 of the Canadian Charter of Rights and Freedoms as well as the Canadian legal protections afforded to him as a citizen and a journalist under the concepts of (1) public interest reporting on judicial proceedings and (2) responsible journalism.”

That’s all quite formal, but just among us citizens let’s put it this way. In a situation where the named mainstream media defendants have a specific self-interest in not publishing news items reporting on the case being prosecuted against them, these internet based publications serve the public interest.

After all, the public is still interested in having a news media that’s truly free of political influence and control... aren’t we?

The answer is coming, at trial.

Please watch this site for updates, and surf the archives to see how we got to this strange uncharted wasteland of electoral intrigue.

**As of July 14, 2011, Love, Smith and Thorpe had been formally served, and Hallman notified that service on him is pending.

Tory Lawyer's Gag Order Bid Fails

2011-05-20T06:31:00.009-06:00

An attempt to censor this website by the solicitor acting for Progressive Conservative party “insider” and lawyer Kristine Robdioux Q.C. has been cast aside by the Court of Queen’s Bench in Calgary.

At issue was a bizarre warning issued by Robidoux, Q.C.’s lawyer David Pick.

“Publish at your own peril,” Pick wrote in an email to my solicitors on December 27th, 2010.

The email, objecting to a mention of Robidoux, Q.C.’s name in a posting on this website, is attached to an affidavit filed by Pick in preparation for a Court showdown over costs in March of this year.

The affidavit supports Robidoux, Q.C.’s pursuit, together with lawyers for the National Post, of punitive costs against me following the ruling of Justice Paul Belzil last year striking my first attempt to sue Robidoux.

Justice Belzil held that I had not sought prior leave of the Court to use evidence produced in Kent v. Martin, National Post et al. Specifically, the evidence revealed that Robidoux, Q.C. provided "dirt" about our campaign in the 2008 Alberta election to ex-National Post employee Don Martin.

Later, I applied to have Robidoux, Q.C. and others joined as defendants to Kent v. Martin. That application has now been allowed by the Court.

At the March hearing, in response to the Robidoux and National Post costs submissions, my lawyer Michael Bates argued that the media defendants’ demands for punitive costs were an embarrassing and unjustified “cash grab”, and that the affidavit filed by Pick on Robdioux, Q.C.’s behalf was an inappropriate attempt to seek a contempt of Court finding against me.

As such, I filed an affidavit in response to Pick’s document, objecting to the use of unjustified costs as a means of censoring responsible coverage of these actions.

Significantly, the Pick affidavit had been sworn not by Robidoux, Q.C. but by an assistant at the Calgary law firm that employs Pick, Scott Venturo. This precluded cross examination under oath of Robidoux, Q.C. by my lawyers.

At the March 8th hearing, however, Justice Belzil ruled that “…the Ms. Vanden Bos affidavit and Mr. Kent’s follow-up affidavit are irrelevant to this issue, have no impact on it. I disabused my judicial mind of what’s in those two affidavits.”

The judge continued: “There is no contempt application, no leave has been sought for contempt and this is not a contempt hearing.”

Justice Belzil then directed that the hearing proceed solely on the matter of costs.

In a ruling six days later, he indicated that routine rather than punitive costs would be called for, and stated: “…there was one breach of the implied undertaking but no other litigation misconduct on the part of the Plaintiff,” and that “…this is not a case of egregious, ongoing conduct by a litigant.”

Separately, before Alberta’s Court of Appeal, my appeal of Justice Belzil’s earlier decision to strike the original Robidoux action is proceeding.

The Belzil decision stated only that Robidoux was my Official Agent. This is cited in the grounds for appeal as “a palpable and overriding error of fact” in that “at all material times Kristine Robidoux, Q.C. was Kent’s Legal Counsel as well as his Official Agent."

Yet Pick had made this written submission to Justice Belzil prior to his ruling:

   "...should the Robidoux action continue we will be filing a Statement of Defence
   which denies that Robidoux was Kent's "legal counsel" for purposes of his
   campaign with the attendant obligations and fiduciary duties he alleges."

Now a different judge has addressed the matter in detail in a new and separate ruling in the Court of Queen's Bench. Justice Dallas K. Miller finds that:

“It is clear that Robidoux acted as Arthur Kent’s lawyer during his election campaign. The evidence reveals that she virtually begged to be on his campaign team and readily agreed to be his counsel and official agent under the Election Act.

“This required the services of a lawyer who was registered to practice law in Alberta and was able to provide legal counsel and advice to the candidate, campaign manager and others. This is a task that Robidoux appears to have taken on with enthusiasm. As part of her duties she signed Arthur Kent’s official nomination papers the day after the publication of Don Martin’s impugned article.”

* * *

Although the "duelling affidavits" were ruled inadmissible by Justice Belzil in the narrow context of the March 8th hearing, they remain part of the public Court record of these litigations.

My affidavit states that Robidoux, Q.C. and her solicitor “are actively attempting to censor” my reasonable reporting of court proceedings and “are thereby seeking to violate my Charter protected right to freedom of expression.”

The affidavit also states that the document sworn by Pick’s paralegal: “contains hearsay allegations against me of contempt of court and wilful disregard of a court order”, and that I am therefore entitled “to natural justice and procedural fairness of formal notice and a full viva voce hearing.”

Pick’s affidavit includes his email demand that I remove the following paragraph from my December 19th, 2010 posting: “Martin Saddles CTV With Conflict Of Interest, As His Old Bosses Stumble”:

The smear is based entirely on falsehoods fed to Martin by Tory “insiders” and “senior campaign strategists”, one of whom was later revealed to be my former Legal Counsel and Official Agent, Kristine Robidoux Q.C., against whom legal action is ongoing.

Crucially, Robidoux, Q.C.’s name and role in the Martin article were already part of the public Court record in August of 2010, and published internationally on an Alberta government website as part of Justice Belzil’s ruling.

My lawyers informed Pick that I would not remove the phrase. Pick then responded with the sharply-worded email attached to his paralegal’s affidavit:

“I disagree with your client's position regarding his ability to publish such information on his website. I will be raising this with Justice Belzil as part of my costs application as, in my view, this is again a flagrant violation of the implied undertaking rule for which solicitor-client costs are an appropriate remedy.

“In other words, publish at your own peril.”

The Pick affidavit also attaches my lawyers’ written response to his email, in which they refer both to Pick's submissions and those of Scott Watson, the lawyer acting for the National Post and Calgary Herald.

My lawyers state in their letter:

“In response to your assertion that Mr. Kent has flagrantly violated the implied undertaking in his recent post on www.arthurkent.ca dated December 19, 2010, Mr. Kent relies on his S. 2 rights of freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms as well as the Canadian legal protections afforded to him as a citizen and a journalist under the concepts of (1) public interest reporting on judicial proceedings and (2) responsible journalism.

“Both Ms. Robidoux, Q.C. and the current named Defendants were presented an express opportunity to seek either a publication ban or a sealing order from Justice Belzil on July 6, 2010 and both you and Mr. Watson expressly declined on behalf of your clients.

“As a result, Justice Belzil's reasons for decision, which are not only part of the public court record but are also published to the world wide web by the Court of Queen's Bench of Alberta, include a description under the heading "The Facts" as follows:

[9] Martin was examined for discovery on July 14, 2009 during which he disclosed that in writing the article he relied on information obtained from a confidential source.

[10] Prior to the examination for discovery a meeting took place between representatives of the corporate defendants, Martin and the confidential source where it was confirmed that the confidential source had been provided with an assurance that her identity would not be disclosed. It was agreed that for the purposes of the Examination for Discovery only, Martin would reveal that his confidential source was Kristine Robidoux, Q.C. who was Kent’s official agent during the election campaign.

[12] Prior to Martin’s disclosure that Robidoux was his confidential source, Kent was unaware that she had provided information to Martin which he used to write the article.

My lawyers went on to cite three further paragraphs of the Belzil ruling that refer to Robidoux as Martin’s source. Then they advised Pick that:

“…as an ordinary Canadian citizen who might choose to publish a blog he (Kent) would be protected in law in his efforts to generate public debate by reporting on court proceedings.

“Further, and particularly cogent to these matters: in a situation where the named mainstream media defendants have a specific self-interest in not publishing news items reporting on the case being prosecuted against them, the public interest is even greater served by internet based publications that report the details of the written reasons for decision of Justice Belzil.

“Mr. Kent respectfully declines your request that he remove his blog post from publication.”

Later, in preparation for the March 8th hearing before Justice Belzil, my affidavit responded to the arguments for punitive costs put to the Court by Robidoux, Q.C. and the National Post:

“This attempt to use punitive costs to censor me is a furtherance of continued reliance by the Defendants on false assertions of responsible journalism. In publishing the Martin Article that is the subject of this litigation, the media Defendants have breached their own ethics, policy and practice directives, and yet I now face allegations of contempt of court and wilful breach of a court order connected to a claim, unsubstantiated by any evidence, that my conduct in these proceedings casts a “chilling effect” over the functions of a free news media.

“The Martin Article was published without any comment from me or my supporters. Subsequently, the Defendants denied my right of free expression by refusing to publish my response. The Defendants also failed to correct the many factual inaccuracies contained in the Article, which continues to be published internationally on the websites of both the National Post and the Calgary Herald, as has been the case for some 1,091 days since the initial publication.”

The affidavit goes on to describe the article’s genesis and intent.

“It is my submission that Martin’s conflict of interest with powerful factions within the Progressive Conservative Party led him to collaborate with a few PC “insiders” to attack my name and reputation as a means of retaliating against my honest and constructive attempts to help my party’s leader, Premier Ed Stelmach:

a) understand the needs and aspirations of ordinary Albertans, and respond thereto;

b) reconsider and refine his ill-fated energy royalty review; and

c) end the PC party’s dependence on patronage practices.

The case continues.

I'm Your Lawyer. You Can Trust Me.

2011-05-17T15:33:00.017-06:00

She is a named defendant in an $8 million conspiracy and defamation lawsuit, and will soon face review by the Law Society of Alberta for allegedly breaching 23 separate provisions of the Society’s Code of Professional Conduct. * (see below)

But Kristine Robidoux, Q.C. shows a very different profile to the public on the worldwide web.

Online, she proclaims high ethical standards while promoting her services in rooting out corruption and zealously protecting clients’ private information.

Robidoux, Q.C. currently hangs her e-shingle as a partner at one of Canada’s biggest law firms, Gowling Lafleur Henderson LLP, known simply as Gowlings.

The Gowlings website describes Kristine Robidoux, Q.C. as a “Global Business Integrity Lawyer” specializing in “domestic and international anti-bribery and corruption laws, privacy and data protection…and business ethics.”

Robidoux, Q.C. appears for public viewing on YouTube in an infomercial in which she introduces herself as a member of the “Business Ethics and Anti-Corruption Practice Group”.

She says: “the worst mistake that a company could make when they learn of a potential corrupt act or other wrongdoing within their organization is to do nothing.”

She recommends “a robust, credible, independent internal investigation. Make sure evidence is being preserved, make sure whatever behaviour had been going on is stopped…”

Although somewhat halting in delivery, Robidoux appears earnest and sincere, not unlike her deportment when she pledged to this former client: “I’m your lawyer. You can trust me.”

This was in a face to face meeting at my campaign headquarters early in the 2008 Alberta general election. Robidoux, Q.C. had accepted the dual roles as my Legal Counsel and Official Agent. She came highly recommended by other lawyers on our team.

Yet just a few days after pledging her loyalty, our campaign was attacked by anonymous sources in an article published by Canada’s largest newspaper chain.

Sixteen months later, one of the unnamed sources was revealed by former National Post employee Don Martin to be none other than Kristine Robidoux, Q.C.

For years, Robidoux’s career profile has been marked by swift upward mobility, aided by her many close links within the hierarchy of Alberta’s Progressive Conservative Party.

She served as a “contract portfolio officer” for the PC government’s Information and Privacy Commissioner. Later, she was an extremely active board member of Legal Aid Alberta, an independent agency created jointly by the Law Society and Alberta’s Attorney General, and accountable to the Justice Minister.

Robidoux also received an appointment to the post of Justice of the Peace. Public records show she earned $64,587 from the Alberta Justice & Attorney General’s department in the 2007/2008 budget year.

In December of 2007, the same month she agreed to serve my campaign team as Legal Counsel and Official Agent, Robidoux was awarded the patronage title of Queen’s Counsel: “Her Majesty’s Counsel, learned in the law.”

Some months after the 2008 election, it was reported in The Alberta Gazette that Robidoux, Q.C. had resigned as a Justice of the Peace.

At the same time, the sole practitioner was reported by the Canadian Bar Association in Alberta to have “merged” her ComplianceWorks firm with Gowling Lafleur Henderson. As well, she became a full partner in Gowlings.

In July of 2010, Robidoux, Q.C. stepped down from her duties at Legal Aid Alberta. It had become widely known in Calgary legal circles that she was on the list to receive an appointment to the Provincial Court bench.

Indications were that Kristine Robidoux, Q.C. was to be named a judge.

The appointment, however, was not included in Justice Minister Alison Redford’s announcement of judicial appointees in October, 2010.

Since then, Robidoux, Q.C. has continued to make high profile appearances as an expert in ethics and anti-corruption practices.

In November of 2010, she served as Chair of a conference on “anti-bribery and corruption compliance” at York University’s Osgoode Hall Law School in Toronto.

Two months earlier, in September, 2010, Robidoux, Q.C. moderated a discussion group on “due diligence as a preventative measure…a component of best practices” at the 8th Annual Anti-Corruption Conference of the International Bar Association in Prague.

It was while Robidoux, Q.C. was in the Czech Republic that she received word that this former client had applied to the Court of Queen’s Bench in Calgary to have her joined as a defendant in Kent v. Martin, National Post et al.

The Court has now allowed that application to join and amend.

It should be stressed that Robidoux, Q.C. was not a partner at Gowling Lafleur Henderson LLP during the events at issue in the litigation. However the policies of her current firm are highly instructive on the basics of solicitor-client privilege. The privacy section, entitled: “Policy on the Collection, Use and Disclosure of Personal Information” states:

“Consistent with our obligations as professionals, we are dedicated to maintaining high standards of confidentiality with respect to the information that has been provided to us…

“Our obligations as legal professionals are governed, in part, by the Rules of Professional Conduct that govern each of our professionals as members of Law Societies…

“… all information concerning the business and affairs of a person or organization acquired…in the course of a professional relationship shall be held in strict confidence and not revealed to anyone unless expressly or implicitly authorized by the person or organization concerned.”

* * *

* Quoting from the Plaintiff’s Brief of Argument, heard before Justice Dallas K. Miller, February 10, 2011 in the Court of Queen’s Bench, Calgary, and referring to the alleged misconduct of Kristine Robidoux, Q.C.:

69. This is not a case of an alleged minor misstep on the part of a lawyer…the evidence before the Court demonstrates arguable potential violations of each of the following rules in the Law Society of Alberta’s Code of Professional Conduct:

1. A lawyer must respect and uphold the law in personal conduct and in rendering advice and assistance to others. (Ch.1, R.1)

2. A lawyer must not act in a manner that might weaken public respect for the law or justice system or interfere with its fair administration. (Ch.1, R.3)

3. A lawyer must be courteous and candid in dealings with others. (Ch.1, R.6)

4. A lawyer’s position must not be used to take unfair advantage of any person or situation.
(Ch.1, R.7)

5. A lawyer must refrain from personal or professional conduct that brings discredit to the profession. (Ch.3, R.1)

6. A lawyer must not act for more than one party in a conflict or potential conflict situation unless all such parties consent and it is in the best interests of the parties that the lawyer so act. (Ch.6, R.2)

7. A lawyer must not act when there is a conflict or potential conflict between lawyer and client unless the client consents and it is in the client’s best interests that the lawyer so act. (Ch.6, R.7)

8. A lawyer must not act personally in a matter when the lawyer’s objectivity is impaired to the extent that the lawyer would be unable to properly and competently carry out the representation. (Ch.6, R.8)

9. A lawyer must not disclose any confidential information regardless of its source and whether or not it is a matter of public record. (Ch.7, R.1)

10. A lawyer must continue to hold a client’s information in confidence despite conclusion of the matter or termination of the lawyer/client relationship.
(Ch.7, R.5)

11. A lawyer who possesses confidential information of a client or former client: (a) must not use such information for the lawyer’s personal benefit nor the benefit of a firm member or a related person or affiliated entity of the lawyer… (Ch.7, R.6)

12. When acting for more than one party in the same matter, a lawyer must disclose to all such parties any material confidential information acquired by the lawyer in the course of the representation and relating to the matter in question.
(Ch.7, R.8 – (d)

13. A lawyer must not lie to or mislead a client. (Ch.9, R.1)

14. A lawyer must not render advice in situations in which the independence of the lawyer’s professional judgment is impaired. (Ch.9, R.3)

15. A lawyer must obtain instructions from the client on all matters not falling within the express or implied authority of the lawyer. (Ch.9, R.5)

16. A lawyer must keep a client informed as to the progress of the client’s matter. (Ch.9, R.14)

17. A lawyer must promptly inform the client of any material error or omission in connection with the lawyer’s representation irrespective of whether it is capable of rectification. (Ch.9, R.18)

18. A lawyer must not mislead the court nor assist a client or witness to do so. (Ch.10, R.13)

19. Upon becoming aware that the court is under a misapprehension as a result of submissions made by the lawyer or evidence given by the lawyer’s client or witness, a lawyer must (subject to confidentiality) immediately correct the misapprehension. (Ch.10, R.15)

20. A lawyer’s representations to the court concerning the facts of a case must be limited to representations supported by the evidence. (Ch.10, R.17 – (a)

21. A lawyer must withdraw upon reasonable notice to the client when: (d) the lawyer’s continued employment would violate the lawyer’s obligations with respect to conflict of interest.
(Ch.14, R.2)

22. When there may be confusion as to the capacity in which a lawyer is acting, the lawyer must ensure that such capacity is made as clear as possible to anyone with whom the lawyer deals. (Ch.15, R.1)

23. A lawyer’s conduct in an activity other than the practice of law must be compatible with the best interests of the profession and the justice system. (Ch.15, R.2)

Court Allows Conspiracy Claim

2011-05-15T14:58:00.007-06:00

Dishing “dirt” to the national media about her client’s election campaign has added lawyer Kristine Robidoux, Q.C. as a defendant to an $8 million conspiracy and defamation lawsuit, following a ruling by a Calgary Court.

Also joined as new defendants in Kent v. Martin, National Post et al are ten “John Does”, described in the amended claim as individuals whose identities are not yet known but who are all believed to be “senior members of the Progressive Conservative Party of Alberta.”

Robidoux served as this former candidate’s Legal Counsel and Official Agent in the 2008 Alberta election. At the invitation of Premier Ed Stelmach, I ran for his governing PC party in my home constituency of Calgary Currie.

But when I campaigned for an end to the party’s rampant patronage practices, and suggested refinements to the Premier’s ill-fated energy royalty review, I was attacked by anonymous “party insiders” in an article written by Don Martin, who had never met nor spoken to me.

During Martin’s examination for discovery in July of 2009, he disclosed his unnamed sources as Robidoux and two other prominent PC party backroom operators, Rod Love and Alan Hallman.

Martin admits long standing relationships with all three, according to documents filed with the Court. In print, Martin has boasted of benefiting from a conflict of interest with Love. Hallman had been fired from my campaign for proposing inducements to a rival nominee to withdraw from the race for the PC candidacy in our riding.

The Court’s ruling on Robidoux and the Does follows a hearing on February 10th.

At that hearing, my lawyers argued that I should be able to use information revealed in discovery, protected by the implied rule of confidentiality, to support joining the new defendants to the lawsuit, which has been in progress for two and a half years.

We also sought leave to report Robidoux to her profession’s regulator, the Law Society of Alberta.

In reaching a decision, the Court had to determine whether my applications met the test of “competing values,” specifically whether our application for leave represents a public interest of greater weight than the confidentiality afforded witnesses in discovery.

Justice Dallas K. Miller writes in his decision, released Thursday May 12^ththat:

“…having found that Arthur Kent has met the test, his application to amend his Amended Statement of Claim and add Robidoux and others as defendants is hereby allowed.”

The ruling also grants leave to report Robdioux to the Law Society. At issue are alleged breaches of some 23 provisions of the body’s Code of Conduct.

Justice Miller states in his ruling:

“Arthur Kent, who is now in possession of this rather damning information, seeks not to use it for an extraneous purpose but rather to advance his original claim in which the discovery took place.

“It is true that the protection afforded by the implied undertaking will not be easily set aside, but arguments advanced on behalf of Robidoux, in my view, are not sufficient to fetter the court’s discretion under Rule 3.74. To say that information that is disclosed by a defendant at a pre-trial discovery cannot be used to add parties and amend pleadings in that same action is simply wrong.”

With reference to case law established by the Supreme Court of Canada, Justice Miller continued:

“In my view, Arthur Kent has met the requisite test in Juman v. Doucette and has demonstrated to the court that there is a public interest of greater weight. In any case, information sought to be used by Arthur Kent involves “the same or similar parties” and “the same or similar issues”. There is really no prejudice to the original examinee and therefore leave is granted.”

Justice Miller found that Robidoux’s status was beyond doubt. He wrote:

This section of the ruling stands in stark contrast to a written submission made by Robidoux’s lawyer, David Pick, to a different judge last year. That hearing resulted in my first attempt to sue Robidoux being dismissed for breaching discovery confidentiality. Pick’s submission to Justice Paul Belzil stated:

“…should the Robidoux action continue we will be filing a Statement of Defence which denies that Robidoux was Kent’s “legal counsel” for purposes of his campaign with the attendant obligations and fiduciary duties he alleges.”

In setting out his reasons for last week’s ruling, Justice Miller states:

“There is a price that needs to be paid in order for a higher public interest to be protected. In this case there is no prejudice to the original defendants. Robidoux may very well face some sanction for her actions, but so does every lawyer if they are found to breach solicitor-client privilege.”

The ruling cites a decision of the Saskatchewan Court of Appeal in Law Society of Saskatchewan v. Robertson Stromberg:

“As a matter of public policy the Law Society, in conducting an investigation in the affairs of a solicitor, should be entitled to override any privilege claim for the public good. In my view, the public interest in the ethical practice of law outweighs any solicitor-client privilege. Lawyers who are being investigated should not be entitled to raise claims of privilege as a ground to refuse to cooperate in Law Society proceedings.”

“Accordingly,” writes Justice Miller, “I see no reason whatsoever for Arthur Kent not to be relieved of his obligation, and I grant him relief from the implied undertaking rule in order to report Robidoux to the Law Society of Alberta.”

Three months ago, at the February 10^th hearing before Justice Miller in the Court of Queen’s Bench, my lawyer Michael Bates argued the merits of our application. Bates told the Court:

“In my respectful submission, as a barrister and solicitor, when I swear the oath to be that office, I give up voluntarily any right or entitlement to be a confidential source to the media about information belonging to my client.

“I don’t get to tell confidential information belonging to my client unless they say so, and I certainly don’t get to tell, and ask a journalist to keep my fingerprints off it, and then somehow expect that, when I voluntarily identify myself in a discovery, that the implied undertaking rule, which is designed to foster the search for the truth, would get in the way of the Law Society of Alberta being able to examine what I did and decide whether it was appropriate.

Bates continued: “My Lord, in the materials I’ve filed and in about 15 other Supreme Court of Canada cases that I’ve cited but not reproduced, solicitor-client privilege and solicitor-client confidentiality is referred to as a constitutional and civil right of supreme importance in Canadian law.

“The public interest, in looking at this situation and saying, What does the public need to better protect, Don Martin’s ability to have a lawyer give dirt about their client, so he can write some kind of opinion piece, I mean, he didn’t break a story of national importance here, he wrote a smear about Mr. Kent.”

Balanced against that, Bates said, was the need to protect a candidate’s right and ability to entrust his confidential campaign information with his lawyer.

“That’s the interest that needs to be protected, My Lord. And I submit it couldn’t be any more clear.”

With Justice Miller’s decision now released, the updated and amended Statement of Claim was filed with the Court on Friday the 13^th of May, 2011.

The claim includes the following excerpts:

Action No. 0801-08414

Arthur Kent v. Don Martin, The National Post Company, Canwest
Publishing Inc., National Post Holdings Ltd., Canwest Mediaworks,

Kristine Robidoux, Q.C. and Does 1 – 10

The Conspiracy by Robidoux and Does 1 – 10

14. Early in the election campaign, tensions arose between Kent and his supporters, on one hand, and members of Alberta Premier Stelmach's office and senior members of the Alberta Progressive Conservative Party provincial campaign team on the other. At issue were concerns expressed by Kent, and many of Kent's constituents, that the Premier's controversial new oil and gas royalty regime had been instituted without due public consultation, and that the Alberta Progressive Conservative government was generally uncommunicative with the public, whilst being compromised by a culture of patronage.

15. Robidoux was one of a small minority of members of Kent's Calgary Currie campaign team who consistently urged Kent to submit without question to the Stelmach leadership group's policies, platforms promises and practices, and to avoid discussing public unease with those policies, promises and practices with the news media. Kent consistently took the view that as a candidate he should be able to freely express his views, consistent with his understanding of representative democracy.

16. Some time prior to February 12, 2008, at times and places known to Robidoux and Does 1 – 10, but not to Kent, Robidoux and Does 1 – 10 entered into a conspiracy, the predominant purpose of which was to damage Kent’s reputation and campaign such that Kent would not be elected to the Alberta Legislature, where he would have had an opportunity to give voice to the concerns set out in paragraph 14 above, which challenged the vested interests of the conspirators.

17. Some time prior to February 12, 2008, at times and places known to Robidoux and Does 1 – 10, but not to Kent, and in furtherance of the conspiracy between herself and Does 1 – 10, Robidoux engaged in the following intentional acts:

a) Robidoux actively and voluntarily forwarded untrue and damaging information about Kent and his campaign to the news media, and specifically to Martin, creating a false and distorted depiction of circumstances within Kent's campaign team; and

b) Robidoux disclosed confidential information about Kent and his campaign to third parties, including to the news media, and specifically to Martin.

18. Does 1 – 10 were aware of, encouraged and acquiesced in these deliberate acts by Robidoux. These deliberate acts of Robidoux, to the knowledge of Robidoux and Does 1 – 10, were unlawful and in flagrant violation of Robidoux’s fiduciary duties to Kent by virtue of her position as his Legal Counsel and Official Agent, and in flagrant violation of Robidoux’s obligations to Kent as his Legal Counsel. Robidoux and Does 1 – 10 knew or ought to have known that the unlawful actions and communications of Robidoux would cause damage to the reputation of Kent and to his campaign for election in Calgary Currie.

19. In addition to the intentional acts of Robidoux outlined above, Robidoux and Does 1 – 10, between November 2007 and March 3, 2008, at times and places known to Robidoux and Does 1 – 10, but not to Kent, engaged in the following intentional acts in furtherance of the conspiracy:

a) Robidoux and Does 1 – 10 maliciously caused supporters and members of the Progressive Conservative Party of Alberta to withdraw or limit financial or other support for the Kent campaign;

b) Robidoux and Does 1 – 10 maliciously caused Progressive Conservative Party of Alberta members of the legislature not to support the Kent campaign;

c) Robidoux and Does 1 – 10 maliciously provided inaccurate or incomplete information to Kent or the Kent campaign;

d) Robidoux and Does 1 – 10 maliciously made offensive, untrue and/or defamatory statements about Kent and the Kent campaign to members of the public and the news media;

e) Robidoux and Does 1 – 10 maliciously encouraged or persuaded members of the Kent campaign team to limit or cease their work for the Kent campaign.

f) Robidoux and Does 1 - 10 maliciously contacted and arranged meetings with volunteer members of the Kent campaign team without Kent’s knowledge in an attempt to turn those volunteers against Kent and the legitimate objectives of the Kent campaign;

g) Robidoux and Does 1 – 10 established and maintained a secretive “back-channel” of telephone and email communications directed at members of the former Calgary Currie PC association who served on Kent’s campaign team, with the objective of undermining support for Kent; and

h) Robidoux and Does 1 – 10 established and maintained clandestine communications with members of the media, without Kent’s knowledge, in order to block Kent’s attempt to refute the false and defamatory claims made against him.

34. In furtherance of the conspiracy between Robidoux and Does 1 – 10, after the publication of the Article, Robidoux engaged in the following intentional acts in furtherance of the conspiracy:

a) Robidoux withheld from Kent the fact that she had forwarded to Martin untrue and damaging information and disclosed confidential information about Kent and his campaign;

b) Robidoux misled Kent about the source of the information that had been provided to Martin and did not disclose to Kent that Robidoux had been the source for some or all of the information published in the Article;

c) Robidoux failed to inform Kent of information that she received concerning the editorial deliberations of The National Post Company and/or Canwest Publishing Inc. as to whether they would publish a response from Kent to the Martin Article; and

d) Robidoux continued to act as both the Legal Counsel and Official Agent for Kent, as well as the Quadrant Chair reporting to several of the Alberta Progressive Conservative Party's most senior executives and its campaign manager, despite being aware that Does 1 — 10 were, along with Robidoux, were actively engaged in attempts to undermine Kent and his campaign.

The Heart Of Democracy

2011-02-20T12:24:00.006-07:00

On February 10, 2011, my lawyer Michael Bates argued my application for leave to report the alleged misconduct of my former Campaign Legal Counsel, Kristine Robidoux Q.C., to the Law Society of Alberta.

At the outset he told Justice Dallas Miller of the Court of Queen’s Bench:

“I would say, My Lord, that throughout my submissions… you will essentially have the distinct displeasure of reviewing some of the worst of three elements of Alberta society:

- evidence of strong suggestion of misconduct by a barrister and solicitor,

- evidence that strongly suggests misconduct by a journalist claiming to champion the values of a free press, and

- evidence of the worst type of political manoeuvring that many would argue blossomed because of a jurisdiction plagued by single party rule for a great length of time…

“The combination of these three elements, My Lord, puts in issue in this application the core functioning of our democracy.

“It goes straight to the heart of democracy in Alberta.”

Bates told the Court that counsel for the corporate media defendants argue that Robidioux, Q.C. was a confidential source, protected by journalist-source privilege.

“My Lord, she’s not a confidential source…

“Ms. Robidoux, Q.C., provided information in response, in part, from a request by Don Martin for dirt about Arthur Kent’s campaign -- her client’s campaign.”

Bates said that when lawyers swear the oath, they voluntarily give up the right to disclose their clients’ information to the media as confidential sources.

He described an email stream disclosed by Don Martin in his examination for discovery in July of 2009, marked as Exhibit D-2. The first message in the stream was from my campaign manager, Bruce Thorpe, to me.

Next, excluding me as a recipient, Thorpe forwarded the original message to Robidoux, Q.C. and Bill Smith.

Bill Smith was vice-president of the Progressive Conservative Party during the 2008 election. He is currently the PC party’s president.

Thorpe’s message to Smith and Robidoux, Q.C. begins by stating the email “is strictly between the three of us…”

It did not stay that way.

Bates told the Court: “The next email that you see in the stream, My Lord, moving up, is the one that goes from Kristine Robidoux, Q.C., to Don Martin at Canwest News Service, with her message:

   "As promised and as per your promise, promise, promise. Smiley face."

Bates said: “When Mr. Martin is then asked about this email forwarded to him in discoveries… he says it was self-evident that this was an email he was not supposed to have.”

Bates told the Court that there is “at least prima facie evidence of a potential offence under the Election Act”. He analyzed the Martin-Robidoux relationship in the context of the Wigmore tests, as set out by the Supreme Court of Canada in its May, 2010 ruling in R. v. National Post.

“Should this relationship at the third criteria be sedulously fostered in the public good? My Lord, of course not…

“Number one, Ms. Robidoux, in a meeting with Don Martin and counsel for the defendants, agreed to reveal her name. We could only speculate why she would do such a thing but thankfully the National Post case tells us, for whatever reason, if she casts aside anonymity, that’s it, it’s over.

Bates recounted Don Martin’s examination testimony.

“And he’s asked: Who were the Conservative insiders that you talked to, recognizing that in the article there’s a reference to Conservative insiders. Mr. Martin’s answer is:

   "Well, I’m not really at liberty to say. As Mr. Kent knows, there’s journalistic sources
   that you’re supposed to protect, but I have talked to one since arriving in Calgary and
   received permission to reveal her name. It’s Kristine Robidoux."

Bates said: “How could anyone possibly conclude, in the face of that, that there’s a confidential source in these proceedings? There’s not.”

Bates told the Court: “that is exactly what that quote from R. v. National Post is saying. It ends the basis for the protection when you reveal who it is.”

Documents filed with the Court indicate that Martin identified Rod Love and Alan Hallman as the article’s other anonymous sources.

Bates noted that the same corporate media entity, the National Post, was party to both R. v. National Post and Kent v. Don Martin, National Post et al.

“Interestingly, My Lord… the same National Post who’s here before you, goes to the Supreme Court of Canada with sources identified only as ’X’ and ’Y’; not revealed in discovery with some twisted assertion that they can still be confidential sources; an actual assertion that they are confidential sources, that their names are refused to be revealed, and that questions at discovery are refused to be answered on the basis that the answers would tend to reveal who the confidential sources are.”

David Pick, the lawyer for Kristine Robidoux, Q.C. told the Court that his client would not oppose the application. He said:

“The clear fact of the matter is that a lawyer is precluded by the Code of Conduct to take steps to present herself – prevent herself from being reported to the Law Society. If we were to oppose this application on behalf of Ms. Robidoux, she would be de facto trying to prevent herself from being reported to the Law Society, which is clearly contrary to the provisions of the Code of Conduct.”

Pick continued: “Ms. Robidoux is not running scared. She’s not hiding... She’s not arguing that she was a confidential source. She takes no position on whether or not she should be reported.”

Justice Miller reserved his ruling on the application until early to mid-March.

A Conspiracy To Defame?

2011-02-20T12:22:00.008-07:00

On February 10, 2011, my solicitor Gabor Zinner argued my application before the Court of Queen’s Bench in Calgary to join Kristine Robidoux, Q.C. and John Does 1 – 10 as defendants in Arthur Kent v Don Martin, National Post et al, and to amend my pleadings in the action.

Robidoux, Q.C. was my Legal Counsel and Official Agent in the 2008 Alberta election. She was one of a very few members of our campaign team who also held Progressive Conservative party appointments or posts, or who worked as "government relations" lobbyists.

The John Does are described in my proposed amended pleadings as believed to be “all senior members of the Progressive Conservative Party of Alberta.”

Zinner began by stating my complaint to Justice Dallas Miller:

“The article contains falsehoods and malicious content which defamed him, and which continues to do so because the article continues to be published daily on the websites of the National Post and the Calgary Herald some 1,100 days after the original publication.

“Every day it continues to be re-published, Sir.”

Zinner continued:

“The evidence which will be reviewed in some detail demonstrates that many of the falsehoods contained in the offending article were communicated with malice by Robidoux, Q.C. - I’ll simply refer to her as Robidoux for ease of convenience - at a time when she was Mr. Kent’s legal counsel and official agent.

“The evidence is overwhelming, Sir, that Robidoux was Kent’s lawyer at the time. I will refer you to four or five pieces of evidence which resoundingly demonstrate the point, and I will only do so because there was a suggestion that that status is going to be denied.”

Zinner told the Court:

“…I submit, Sir, that the parties who contribute – who contributed to the writing and publication of false and malicious content are all joint tortfeasors, and that it’s only appropriate that they all be required to answer to Mr. Kent’s claim together.

“The corporate media defendants and Robidoux, as well as their solicitors, collaborated against the plaintiff…"

Zinner referred the Court to Exhibits D-1 and D-2 from Martin’s examination for discovery on July 14, 2009.

“Now, in terms of allegations of falsehoods, the email which you’ve seen, marked as Exhibit D-1 during the Martin examination - and my friend had alluded to this, so I don’t need to belabour the point - states that:

   The financial officer has threatened to resign."

Zinner referred to a message sent by the financial officer after he read the Martin article. The financial officer wrote that the article:

   “…says I have threatened to quit. I have not threatened to quit. Could you please pass
   this along to Arthur...”

Zinner continued:

“It states in -- in Exhibit D- 1 - this is the defamatory email - that Kent declined to chat with the premier. This is not true. He was pre-booked… he was in fact busy door knocking.”

Turning to Exhibit D-2, Zinner described it as “an email written to Arthur Kent by his campaign manager, and it may be seen as expressing constructive criticism. It has the usual confidentiality warning at the foot of the email. That’s page 4 of four, Sir:

   This communication is intended for the use of the recipient to which it’s addressed
   and may contain confidential personal and/or privileged information.

“And basically it puts the reader on notice that it’s only intended for the reader. And then, of course, as Mr. Bates has already pointed out, on page 1 of four:

   This email is strictly between the three of us until I call for help. I’m doing due
   diligence informing you of a possible pending issue.

“So it was clearly intended to be confidential, and of course you’ve seen the evidence that Ms. Robidoux turns around and forwards this to Mr. Martin, who was looking for dirt."

Zinner continued:

“Robidoux compounded the injury, created by forwarding by the e-mail, by failing to inform Martin, subsequent to the sending of the e-mail, that Thorpe sent a second e-mail stream identical to D-2, only five hours after the first one, in which he states in reference to the issues or problems identified in the earlier e-mail, all appears to have been resolved…

“We allege that that’s compounding the dereliction. She of course conveyed the information which induced Martin to write the article.”

Zinner told the Court about additional email documents that were produced by the lawyers for the National Post and Calgary Herald.

“On May 16th, 2010, Sir, hundreds of pages of emails from the election campaign period and belonging to Bruce Thorpe, a PC Party activist and Mr. Kent’s former campaign manager, were disclosed by the corporate media defendants, and it contains numerous emails involving Robidoux and her participation as a joint tortfeasor in committing the tort, and I will be referring to that, again, all -- all in the interest of meeting the burden that I have to put before you that the amendments sought are supported by evidence.”

Zinner described the Martin article as including “no mention of the fact that there were serious policy issues, that were under discussion…

“Many of Mr. Kent’s warnings back then… the validity and the perceptiveness of those warnings, were borne out by subsequent events.

“And I refer for example, to an e-mail from Brett Wilson, a prominent member of the business community… And he says… as much as I like Arthur, the policy of the current government towards the royalty regime and the oil patch in particular, is not very conducive, and I’m just not in a position to support the government under the Stelmach leadership.”

Justice Miller reserved his ruling on the application until early to mid-March.

Trouble In Petroleum Paradise

2011-02-15T08:10:00.046-07:00

The Rockies stand tall on Alberta’s horizon, but the stakes in money and politics are even higher: Canada’s energy province is home to vast oil reserves, potentially the world’s largest.

Most of the treasure is locked in sand, a colossal non-conventional energy supply that Alberta’s oil industry claws or boils up from the earth. It’s already one of the biggest construction projects on the planet, and among the most controversial.

The owners of this perplexing prize are the 3.7 million citizens of Alberta.

Canada’s federal government in Ottawa has limited oversight, but primarily the provincial government controls the oil sands on behalf of Alberta’s citizens.

And there’s the problem. The Progressive Conservative government of Alberta is collapsing before our eyes.

Despite a massive legislative majority, the PCs have squandered their legacy through bad policy and a style of governance that is entirely out of touch with the needs and aspirations of the public it is meant to serve.

Complex challenges like the oil sands are simply beyond the government’s capacity to lead.

In January, Premier Ed Stelmach announced he’s throwing in the towel. The deputy premier, finance minister and justice minister have stepped down to run for the party leadership. Other members of the cabinet could follow.

Yet the PCs refuse to put the crisis to the people. There will be no election, they say, until the party goes through another time-consuming leadership contest, then spends a year or more wooing disaffected voters.

Mr. Stelmach intends to cling to office until September, when he proposes handing over the reins to his successor. It might be two years until the people of Alberta have a chance to register their sentiments on all of this at the ballot box.

After 40 consecutive years in power, Alberta’s Progressive Conservative leadership displays the same smug, authoritarian hubris that plagues one-party states all over the world.

It’s all about us, Stelmach and his would-be successors seem to say: we’re destined to rule over you. Alberta is sinking further into deficit, and there’s no competent hand on the tiller of government, but don’t worry, the PC’s will sail on and sort it out somehow.

It's hardly surprising that last year one of the PC’s own constituency associations warned Stelmach that the Progressive Conservatives are “nearing the precipice of moral insolvency to govern.”

As you’ll discover in the scandals revealed in these web pages, the PC party’s creaking old political machinery is clogged by patronage and compromised by a barely disguised contempt for electoral integrity.

It’s fair to ask: how can a government that can’t deliver flood relief or seniors’ care meet the scientific and engineering challenges posed by the oil sands?

Albertans possess a fortune that makes oil sheikhs weep with envy, but those riches can only be realized through a wealth of ingenuity. That’s a big problem for the PCs, stuck as they are somewhere between the ages of radio and analog TV.

Wherever in the world you’re reading this, consider what’s at stake for you. This isn’t just a story of political corruption in a far off corner of Canada. Think about the air you’ll be breathing a year from now, or the storm surges lapping at your front door.

Or the security of your energy supplies. If you live in the United States, you might know that the province of Alberta already provides more of your country’s oil imports than any other single foreign source.

Washington is relying on those imports to steadily increase. But will that happen if environmental imperatives aren’t matched by new science and engineering?

* * *

As a people, Albertans have proven themselves capable of scaling the highest peaks of technological and entrepreneurial achievement.

Yet their government displays those classic symptoms of command-style rule: a deep-seated fear of genuine change, and an almost militant aversion to innovation.

Perversely, Mr. Stelmach and his cabinet have acted most purposefully when cracking down on independent-minded members of their own party.

In 2009, their target was Guy Boutilier. An articulate and popular Member of Alberta’s Legislative Assembly, Boutilier was thrown out of the Tory caucus for objecting to the government reneging on promises to build a new seniors facility in Fort McMurray.

Fort McMurray is the capital of the oil sands region. Mr. Stelmach had repeatedly assured the community the seniors’ home would be built. Those promises vanished with a stroke of his pen.

In November of last year it was the turn of another Tory MLA, Raj Sherman, the respected former head of the Emergency Physicians’ Association. When Sherman went public with warnings about the mounting crisis in Alberta’s emergency wards, he too was thrown out of Stelmach’s caucus.

As well, Sherman was confronted with embarrassing questions from the physicians’ licensing authority. The Alberta Medical Association allegedly had been fed defamatory claims about Sherman’s “manic” state of mind by a pair of vengeful Stelmach loyalists.

Bizarre? Yes. Crude and disreputable? Without a doubt.

But to any of us who have advocated the notion of renovating the Progressive Conservative party from within, that kind of toxic whispering campaign comes as no surprise.

In my own case the whispering campaign gave way to hard copy, both in print and online, published by Canada’s biggest newspaper chain.

This "three year smear" has set something of a record in Canadian politics: more than 1,100 days after its initial publication, the defamatory tract continues to be republished by the troubled Postmedia group on at least two of its websites.

For an introductory look at the dark side of Conservative electoral politics, click here.

Or you can visit our archives to retrace the saga as it has evolved over the past three years.

And please make us a regular stop when you’re surfing the web.

There’s not much at stake in Alberta’s painful quest for good government. Just the future of the engine that pulls Canada’s economy, and the stewardship of the largest oil deposit in the world.

Lawyer Dished The Dirt To Don Martin For National Post Article, Court Hears

2011-02-11T11:18:00.009-07:00

The Court of Queen’s Bench in Calgary heard arguments yesterday on two applications brought by this former candidate involving the Calgary lawyer who served as my Legal Counsel and Official Agent in the 2008 Alberta provincial election.

Kristine Robidoux, Q.C. was one of a very few members of my campaign team who also held Progressive Conservative party appointments or posts, or who worked as "government relations" lobbyists.

Referring to Robidoux, Q.C. and her email exchanges with former National Post employee Don Martin, my lawyer Michael Bates told Justice Dallas Miller:

“A national media journalist asked her for dirt and she gave it to him.”

“She did so in secret.”

Bates was speaking to my application for the Court’s leave to report Robidoux, Q.C. to the Law Society of Alberta for her alleged breaches of the regulatory body’s Code of Conduct.

My lawyers estimate that some 23 provisions of the Code of Conduct may be at issue.

I filed my application after the solicitor acting for the National Post, Scott Watson, refused my lawyer’s request last November for an order consenting to the use of discovery evidence in my proposed complaint to the Law Society.

Because Martin’s testimony is protected by a rule of confidentiality, without his lawyer’s consent I was forced to apply to the Court for a ruling.

Later Thursday, my solicitor Gabor Zinner spoke to a separate application to join Robidoux, Q.C. and John Does 1-10 as defendants in the action Kent v Martin, National Post et al.

Zinner argued that Robidoux, Q.C. is a “joint tort feasor”, who along with others conspired to defame her own candidate and client. The John Does are described in my proposed pleadings as believed to be “senior members of the Progressive Conservative Party of Alberta.”

Documents filed with the Court show that Martin relied upon only three anonymous sources in writing the article.

They are:

- Kristine Robidoux, Q.C.;

- Rod Love, with whom Martin has acknowledged a long term conflict of interest, and who was not a member of our campaign team;

- Alan Hallman, a backroom Tory operative who I dismissed from the campaign for suggesting inducements to persuade a rival nominee to withdraw from the race for the PC candidacy in Calgary Currie.

Martin’s article, first published on February 12, 2008, is still being published internationally each day on the websites of the National Post and Calgary Herald.

The article includes no comment from me or my supporters. I had never met nor spoken to Martin. He crafted his article at his desk in Ottawa, some 2,887 kilometers east of our constituency. His article smears me and my campaign while shielding his sources as PC party “insiders” and “senior campaign strategists”.

The attack came as I was urging Premier Ed Stelmach to end the PC party’s patronage practices and refine his ill-fated oil and gas royalty hikes.

Both the National Post and Calgary Herald refused to publish my response.

Stelmach announced his resignation last month. The Calgary Herald has called the premier’s handling of the royalty regime his “biggest blunder.”

These days, Robidoux, Q.C. is a partner in the Calgary office of one of Canada’s biggest law firms, Gowlings. The firm’s web page cites “business ethics” as one of her specialties.

In a hearing last summer, Robidoux, Q.C.’s lawyer was successful in having my separate defamation lawsuit against her dismissed on grounds that I had filed the action without leave of the Court to relieve Martin’s protection of discovery confidentiality.

In yesterday’s hearing, filed materials were cited by my lawyer Gabor Zinner indicating that Robidoux, Q.C.’s lawyer, David Pick, made the following written submission to Justice Belzil prior to the court’s August 3, 2010 ruling to dismiss Kent v Robidoux and the John Does:

“Although this may not be particularly germane to the within applications, should the Robidoux Action continue we will be filing a Statement of Defence which denies that Robidoux was Kent’s “legal counsel” for purposes of his campaign with the attendant obligations and fiduciary duties he alleges.”

The Court was then made aware of “voluminous evidence of the historical record” that Robidoux, Q.C., was, in fact, my Legal Counsel, as well as my Official Agent.

Documents filed with the Court include an organizational chart that was displayed on the wall of our campaign office stating, in part: “Kris Robidoux, Legal Counsel”.

Justice Miller reserved his ruling on both applications.

The focus now shifts to a matter stemming from the Belzil ruling of last August: lawyers for Robidoux, Q.C., as well as the National Post and Calgary Herald, are seeking punitive costs from me regarding my filing of the separate action against Robidoux, Q.C. and the John Does.

More details here in the days and weeks ahead.

Death By Lawyers

2011-02-01T13:35:00.010-07:00

It is the tactic of first and last resort for many big corporate defendants who find themselves called into court for breaking the law: delay.

Delay, by shunning opportunities to avoid lawsuits in the first place.

Delay, by instructing lawyers to frustrate the scheduling of even the most basic pre-trial tasks.

And most cowardly of all, procedural delay: throwing obstructions in the plaintiff’s path, and transforming the truism “justice delayed is justice denied” into a game plan.

We’ve coined a jocular tag for the practice: Death By Lawyers.

If you’re unlucky enough to become the victim of defamation by an editorially dishonest media conglomerate, you’ll learn all about Death By Lawyers.

The goal of these procedural delays is to discourage plaintiffs, to instil fear that an ordinary individual will never secure his or her day in court against the enormous resources of the corporation, backed by its insurance company or companies.

It’s a formula intended to kill lawsuits, whether the actions have merit or not.

Overcoming Death By Lawyers is expensive and time consuming in its own right.

But if you’ve been left no choice but to sue, and if you have the resources and time to pursue the corporate defendants, then your lawyers can turn the tables on the culprits, and in a big way.

That’s because intentional delay comes with a price to the guilty party.

Provided you can prove to the jury at trial that the offending party has aggravated the original damages you’ve suffered, the scope for relief from those damages increases greatly.

Keep an eye here for past and future examples of Death By Lawyers.

You be the judge. See if you agree that there’s really only one appropriate response to the phenomenon, namely:

“Go ahead, make my day.”

Stelmach Bows Out As National Post Defamation Hearings Draw Near

2011-01-26T13:02:00.002-07:00

He was the Premier who told this candidate that election campaigns are not the right time to discuss government policies and practice with mere constituents.

Now Ed Stelmach has thrown in the towel as Alberta’s 13th premier, two weeks before the Court of Queen’s Bench will hear two applications from this candidate-turned-plaintiff in Kent v National Post, Don Martin et al.

The hearings are scheduled to begin at 10 a.m. Thursday, February 10th at the Calgary Courts Centre and are expected to run the entire day.

Meantime the appeal of a ruling in a related action is proceeding before Alberta’s Court of Appeal.

As the target of a brazen act of political sabotage masquerading as journalism, I was particularly taken with Stelmach’s choice of words yesterday.

Announcing his decision to step down, he said:

“There is a profound danger that the next election campaign will focus on personality and US style negative, attack politics that is directed at me personally…

“This type of US style wedge politics is coming into Canada, and it comes at our peril.

“Albertans deserve to have (a) better level of public debate on our policy options.”

I couldn’t agree more, Ed.

The alleged collaboration of senior PC party figures in smearing one of their own candidates in the 2008 Alberta election is at the core of Kent v Martin, National Post et al, as well as the recently-filed Kent v Postmedia, Paul Godfrey et al, and the ruling on appeal.

Our team in Calgary Currie was attacked by an unscrupulous few “Tory insiders” only because I tried to save Mr. Stelmach from himself and his lacklustre circle of senior advisers — and most particularly from the insatiable patronage hounds who have transformed Alberta’s PC government into the most self-serving engine of official contracts, appointments and jobs in Canada.

For a look at the germinal moments of Mr. Stelmach’s long and inelegant slide from the saddle, let’s briefly return to those wintery campaign days three years ago.

Was Ed’s downfall already in the cards?

You decide.

Constructively and politely, I tried to persuade the premier that the bad old days of me-first Tory rule had to end. Not because I said so, but because the people of our communities, the voters, were telling anyone who cared to listen that they deserve better from their government.

* * *

“PETROLEUM, PATIENTS AND EMPTY PROMISES”
(First Posted October 28, 2008)

Monday, February 4th should have signalled a clean start to our campaign to take back the constituency of Calgary Currie for Alberta’s Progressive Conservative government.

But confirmation that the writ had been dropped for a March 3rd election day was overshadowed by the mixed signals I was receiving from Premier Ed Stelmach’s office. Ed’s chief of staff, Ron Glen, had emailed Sunday afternoon, casting doubt on whether the Premier could “meet with individuals” during the campaign. Glen’s associate in the Calgary office, Ken Faulkner, was even more pointed.

“We just cannot make it work,” Ken wrote me, referring to the Premier’s pre-Christmas promise that he would meet, prior to the election, with myself and one of my constituents to discuss the elephant in Calgary’s oil and gas boardrooms: the “unintended consequences” of the recent royalty review.

Throughout January, the Premier and his people had been dodging his commitment. Twice over the phone and once in person, I reminded the Premier that Alberta’s oil and gas explorers deserved some kind of indication, however preliminary, as to how and when the government would relieve the excessive cost pressures that would affect a swathe of companies once the higher royalties kicked in. Capital, rigs and roughnecks were already fleeing Alberta. Government revenues were sure to follow.

But the Premier was unmoved. On unintended consequences, he and his aides seemed content to wage the election on vague assurances. (Still today, the government has not made good on those promises.

Other policy concerns were getting the cold shoulder, too. At the party’s all-candidates meeting in Edmonton in late January, I had reminded the Premier that Alberta’s film and television producers were owed $9 million in overdue contributions from the government. Were we serious about economic diversification or not? Alberta’s brilliantly productive tech companies yearn for incentives: too often, impatient young developers and entrepreneurs are lured away to Silicon Valley and other more supportive locales.

There’s imbalance in advanced education, as well: Calgary’s Mount Royal College was being short-changed on funding. And on the cultural scene, the project to enhance Fort Calgary, slated for a $4 million government grant, deserved to be recognized before, not after Calgarians cast their ballots.

On all these policy areas, an unmistakable message was sent down from on high. Candidates for the office of Member of the Legislative Assembly (MLA) were expected to follow orders, not offer suggestions. In the Progressive Conservative Party, I was coming to understand, communications were decidedly one-way - exactly the kind of comfortably numb government that was turning off Albertans in droves.

On February 4th, as the election campaign lurched into motion, another example of command-style politics loomed before me. I was ordered – ordered none too politely – to attend a photo opportunity the next day, Tuesday the 5th, for Ed and all his Calgary candidates at the city’s Foothills Hospital.

I made a few calls to leading health care professionals. They predicted that this campaign kick-off would be pure gesture politics. And they were right. The Premier announced hundreds of millions of dollars to train new physicians. Only later did it become clear that there weren’t enough teaching positions in Alberta to reach the Premier’s targets. An embarrassing correction had to be offered up the next day.

Standing among Ed and his team in that windowless hospital classroom, I experienced a searing moment of clarity. There we were, smiling for the cameras. Perhaps an updated group of PC candidates, but there was little new about the party we were fronting.

Little had changed from the previous government under Ed’s predecessor, Ralph Klein. A few years earlier, answering a journalist’s question about how well planned his administration had been, Ralph boasted: “Plan? We didn’t have a plan.” His failures in health care confirm this: Alberta’s is the most costly system in Canada, yet teeters, each day, on the edge of collapse.

I left Ed’s photo call as soon as I could. On the drive across town to our campaign office, I reflected on the spectacle I’d just been part of. A journalist for most of my adult life, I had now witnessed official duplicity from the other side of the cameras. It wasn’t a pretty sight.

Like many Albertans, health care means more to our family than just a box to be ticked off with the right PR. Our mother Aileen was a nurse of rare talent and experience. When, as a senior, she entered assisted care, we were all appalled by the conditions she encountered. Standards of care for our seniors had fallen so steeply that I was moved to write Premier Klein in the summer of 2000. Due to staffing shortages, I told him, residents requiring help could only bathe once a week.

Ralph responded with a three-page letter exalting the work his government was doing to help aging Albertans. He cited his cabinet’s study, Alberta For All Ages, which he said endorsed his initiatives. He promised that his government would “continue to do its part to help Alberta’s seniors receive the quality of care and services that enhance their well-being and dignity.”

This was an empty promise, as evidenced by the steadily deteriorating conditions in our seniors’ homes and care facilities. In June of this year, 500 Calgarians were waiting for long-term care, double the number two years before.

Right now, today, Oct. 28th, 2008, some 215 elderly patients – twice the number four months ago - are taking up bed space in Calgary’s hospitals, compounding the crisis of funding and capacity afflicting the health care system. This, after a raft of pre-election promises from Premier Stelmach and his ministers along the lines of the Foothills training fiasco.

Weighed down by these dark realities, I reached our campaign office around the time the first reports of the Foothills event were hitting the airwaves. More news awaited me inside.

“The Premier’s not coming to our breakfast,” I was told. “They say it’s scheduling, but…”

There was no need to finish the sentence. Ed’s attendance at our constituency fund-raising breakfast scheduled for later that week had been a long-standing commitment, a make-up date, in fact, for his staff pulling him out of a constituency event three months earlier.

It was clear to me why the Premier wouldn’t be at the breakfast. There would be constituents there, voters who wanted tangible policy statements on issues like royalties. Voters I was seeking to represent, and who had waited too long, like all Albertans, for straight talk and real results.

The Premier’s staff were standing us up because they didn’t want to face the facts on the ground in Calgary - a pattern that repeats itself today in policing, economic uncertainty and, as ever, the health care crisis.

Next, the backroom boys show their cards:

“LONG REACH OF THE BACKROOM BOYS” (Posted October 29, 2008)

http://blog.arthurkent.ca/?p=105

Martin Saddles CTV With Conflict Of Interest, As His Old Bosses Stumble

2010-12-19T08:01:00.004-07:00

In a stunning confessional outburst, trainee TV host and defendant Don Martin has branded himself as politically tainted in a deeply damaging way.

In the process he’s dumped lumps of legal coal under the Christmas trees of his employers, both past and present.

What makes Martin’s conflict-of-interest mea culpa a ticking time bomb for both Postmedia Network Inc, his previous boss, and the public affairs mavens at CTV, his new roost?

It’s the way his newly affirmed Love Affair resonates within the defamation actions chronicled in these pages.

Last week Martin waxed eloquent about his links to Alberta’s reviled political backroom operator, Rod Love, in an article published by the National Post and Calgary Herald titled: “What I learned from 32 years in the newspaper business.”

‘The wrong stuff’ would be the short take on Martin’s fin-de-siecle ramble.

Martin celebrates what he calls Love’s “advanced media manipulation”, then writes:

“Conflict of interest declaration: He leaked me almost everything that crossed his desk as Klein’s right-hand man.”

His words, mind you: “Conflict of interest.”

Among the staunchest Lougheed loyalists of Alberta’s Progressive Conservatives, Love is routinely referred to as the “fallen angel” of the party’s patronage elite.

Patronage surged under the reign of Love’s former boss, Ralph Klein. Well-connected Tories prospered while the Alberta Advantage waned. Preferential coverage by the Calgary Herald helped keep Klein in power by muzzling opposition spokesmen.

In return, Don Martin was provided “exclusives.” (See “deals for stories” in Postmedia Network and Calgary Herald Apologize To Wronged Telus Executive.)

There is no indication whether Martin has bothered to disclose to CTV management that he arrives trailing some $11 million in combined alleged litigation liability. He remains a named defendant in Kent v Martin, National Post et al, our action dating back to the Canwest era.

Paul Godfrey’s Postmedia Network, on the other hand, knows all about it.

This investment entity, formed by mainly American hedge funds in the futile hope of making a quick killing by flipping the bankrupt Canwest newspapers in a stock offering, has found itself, like its predecessor, sued for republishing Martin’s scandalously defamatory attack article dating back to the Alberta election in February of 2008.

The smear is based entirely on falsehoods fed to Martin by Tory “insiders” and “senior campaign strategists”, one of whom was later revealed to be my former Legal Counsel and Official Agent, Kristine Robidoux Q.C., against whom legal action is ongoing.

The attack came after I suggested policy refinements to party leader Ed Stelmach and advocated an end to the PC’s patronage culture. Martin’s article includes no comment from me or from the loyal majority of our campaign team.

Last week, my lawyers filed an affidavit citing Martin’s farewell rant, together with an excerpt of Martin’s sworn testimony with specific regard to Rod Love, in the context of Kent v Martin, National Post et al.

Not long after Martin splashed his confession across the pages of the National Post and Calgary Herald, Paul Godfrey’s lawyers for Postmedia succumbed to their own fit of documentary dementia – perhaps best described in legal terms as “aggravating damages.”

It happened with the filing of their Statement of Defence in the separate action, Kent v. Postmedia et al (see Postmedia and National Post In New Action Over Martin/Tory Smear).

Martin’s heretofore covert canoodling with Rod Love figures prominently.

Postmedia’s Statement of Defence states in part:

“… the Plaintiff has failed to mitigate any alleged damages caused by the Publication, which damages are denied, by failing to respond reasonably to an opportunity to publish a response to the Publication.”

Say what?

In fact the Plaintiff, this reporter and former candidate, did file a response. You can read it here today.

Both the National Post and Calgary Herald refused point blank to publish my rebuttal. “We cannot publish this,” Jonathan Kay of the National Post stated by email with no explanation.

“We are not going to publish your article,” Gord Smiley of the Calgary Herald told me on the phone. “But why don’t you write us something about your life moving forward?”

The newspapers’ refusals to publish the response article are detailed in our pleadings, as are the circumstances that saw my former Legal Counsel and other senior PC Party figures made privy to the Calgary Herald’s deliberations over whether or not to publish the rebuttal, even as those deliberations took place.

Sound like journalistic heresy?

As I wrote at the time: “you decide.”

A copy of my rebuttal was produced by the defendants in Kent v Martin, National Post et al earlier this year within the affidavit of Lorne Motley, the editor-in-chief of the Calgary Herald. Filed March 12, 2010, this affidavit is part of the public record at the Calgary Courts Centre.

Anyone examining the last page of Exhibit 32 will see the text formatted in columns, as if ready for publication.

Here’s the same text as I submitted it to the National Post and Calgary Herald days after the March 3, 2008 election:

A TOOL FOR LOVE

by Arthur Kent, March 9, 2008

Attack ads are a staple of political combat, but consider another weapon deployed in Alberta’s recent election: the attack article. Specifically, Don Martin’s Feb. 13th piece, “Scud Stud Lands With A Thud.”

The tone was harsh and personal. Yet I’ve never met or spoken to Mr. Martin. He claimed to know all about my campaign, yet he did not visit our constituency or give me a reasonable chance to comment prior to publication.

So why did this Ottawa-based scribe single out a candidate in Alberta with such fury? What do the article’s origins say about our province’s political culture and media? You decide.

The story begins last November, at the launch party for my nomination bid in Calgary Currie. Two figures from Alberta’s past strolled in uninvited: former Premier Ralph Klein, and his Mr. Fixit, Rod Love. “They want a new guy,” winked one long-time Tory, “and you’re it.”

Tagging along with Love was Allan Hallman, who had been trying to join our team. Another Love associate, Calgary MP Lee Richardson, peppered me with calls and emails, urging me to name Hallman my campaign manager. “Remember,” Lee told me, “if you make an enemy, it’s for life.”

This was my welcome to Conservative politics in Calgary.

What to do? Well, our constituents were telling me we had to leave the Klein era behind, along with the rogues who had fed at the trough. From ailing health care to inflation brought on by lack of planning, the Klein gang’s legacy is the albatross around Alberta’s neck.

Hallman made the decision simpler when he asked via email: “is there a carrot we can offer” to another nominee to reduce the field. He was shown the door.

Our campaign won the nomination with 74% of votes cast. But not without Love lost.

“Rod’s had it with Kent,” Richardson fumed to a colleague in Ottawa. Fast forward to February’s election run, and Mr. Love’s endorsement on CBC Radio of my Liberal opponent.

On the stump, I said that Alberta yearned to be free of the dinosaurs from Jurassic Park, whose sense of entitlement warrants extinction.

Enter Mr. Martin. “Martin and Rod Love are buddies from way back,” says one veteran Calgary Herald staff writer. “Virtually every tidbit that Martin has ever written about Klein came from Love.”

A former senior aide to premiers Getty and Klein says: “We started seeing the Love-Martin connection as far back as the ’88 Olympics. It went on all through the Klein years. It was one of Love’s favourite tools, at times with a poison tip.”

Or a twisted one. Martin’s tirade is laced with falsehoods. He claimed I had “put campaign morale into a tailspin and complicated volunteer recruitment.”

Fact is, more volunteers kept streaming in, reaching a core group of more than 60, and peaking at 85 volunteers by election day, one of the largest of any campaign in Calgary. Binding us was a shared belief that fresh faces – and honesty - are essential to revitalizing politics in Alberta.

Martin claimed: “half his team was ready to quit,” singling out our finance officer. That volunteer promptly emailed: “Martin’s article says I have threatened to quit. I have not threatened to quit.”

In fact, six people – six out of 85 - expressed concern when conformity to the party line was tested. Only two left, but came back when Premier Stelmach asked to visit our office March 1st. Throughout, I stuck to our theme: genuine change as desired by the people of Calgary Currie.

Martin denied me a chance to comment prior to publication – a requirement of responsible journalism. An email to our website reached me after the article had gone to press.

My personal email address is familiar to the editor of this page and other Herald staffers, yet I wasn’t alerted to any request for comment. Martin did not call me, though my numbers are well known: three other Calgary Herald reporters had reached me on my cell phone in days previous.

Locked in mid-campaign, our team could not be drawn into this disgraceful debate. This response had to wait until after the election. Did the attack article contribute to the Progressive Conservative defeat in Calgary Currie? Damning enough that we should even wonder.

This newspaper has lamented the disaffection of Alberta’s electorate. But doesn’t this kind of malicious, irresponsible attack deserve some of the blame?

Details of Arthur Kent’s campaign are online at arthurkent.ca

- 30 -

That’s right. Martin’s reference to Rod Love:

“Conflict of interest declaration: He leaked me almost everything that crossed his desk as Klein’s right-hand man.”

…comes two and a half years after these quotes in my rebuttal:

“Martin and Rod Love are buddies from way back,” says one veteran Calgary Herald staff writer. “Virtually every tidbit that Martin has ever written about Klein came from Love.”

“It was one of Love’s favourite tools, at times with a poison tip.”

A tool. With a poison tip. That has finally revealed itself for the record.

And now, turning our thoughts to hopes and joys of the festive season: to all a good night.

After the holidays we’ll be back with:

…the particulars of another conflict-of-interest party whose name Martin and the Calgary Herald dare not speak, an enterprising Tory Member of Parliament.

…the mystery of the vanishing Tory lawyer.

…and the relaunch of this website.

To all ye faithful who continue to guide and cheer our team of advocates and investigators, please accept a bow of thanks and our very best wishes for a wonderful New Year.

With just a dash of Rough Justice…

Postmedia And National Post In New Libel Action Over Martin/Tory Smear

2010-11-15T11:31:00.000-07:00

The new owners and managers of Canada’s largest newspaper chain, Postmedia Network Inc., have been served with a $3 million libel lawsuit by journalist Arthur Kent over the republication of a defamatory article that was first published during Kent’s candidacy in the 2008 Alberta general election.

Named as defendants are Postmedia, National Post Inc., Postmedia’s CEO Paul Godfrey and National Post president Gordon Fisher.

The lawsuit concerns an article by Don Martin, citing anonymous Alberta Progressive Conservative Party “insiders”, which was originally published by the Canwest group of companies. Litigation commenced against Martin and Canwest in 2008 and is proceeding towards trial, despite Canwest’s bankruptcy earlier this year.

The new and separate Postmedia action cites a list of 15 aggravating factors (see below).

The article first appeared on the nationalpost.com website on February 12, 2008 and in the National Post, Calgary Herald and Edmonton Journal the following day (see The Page At Issue on our homepage).

At that time, Kent was a candidate for Premier Ed Stelmach’s PC’s. Kent campaigned for changes to Stelmach’s energy royalty regime, since reversed, and an end to the Tories’ patronage culture.

The Statement of Claim in Kent v. Postmedia, National Post, Paul Godrey and Gordon Fisher states:

“Postmedia assumed ownership of the National Post on approximately July 13, 2010. Since that time, Postmedia has continuously published, or causes to be published, the Article in an amended form on the website of the National Post…”

Also cited is continuous publication on the website of the Calgary Herald.

The Statement of Claim was filed in Alberta’s Court of Queen’s Bench as Action 1001-16418 on November 3, 2010. It continues:

“Kent relies on the following aggravating factors in support of his claim for aggravated and punitive damages:

a) The Article is being published in violation of the Defendants’ assertions, as published in Postmedia’s own newspapers and websites in September, 2010, of the need for fairness and accuracy in their news stories, columns and articles; as well as ensuring that the subjects of news stories, columns and articles published by Postmedia are given an opportunity to comment prior to the publication of the articles, which opportunity was denied to Kent;

b) The Article is being published in violation of the basic requirements of responsible journalism and in flagrant breach of the principles of the Canadian Newspaper Association, of which the Defendants’ publications are members;

c) The Defendants knew, or should have known, that false and malicious assertions of fact in the Article are contradicted by previously published reports in the Defendants’ own newspapers and websites, particularly with regard to Kent’s professional name and reputation and the conduct of Kent’s election campaign;

d) The Defendants knew, or ought to have known, that while Arthur Kent was defeated in the Alberta election in large part due to the defamatory Article, the PC government was eventually forced to reverse the royalty regime that Kent correctly predicted would adversely impact Alberta’s energy industry;

e) Defendants Godfrey and Fisher knew, or should have known, that the defamatory Article was injurious to Kent on the basis of Kent’s complaint about it in Action 0801-08414, because Godfrey had been the chairman, and Fisher the publisher, of the National Post and nationalpost.com during the website’s previous ownership, prior to their appointment to their current posts as president, chief executive officer and director of Postmedia (Godfrey) and chairman of the National Post (Fisher);

f) The Defendants knew, or ought to have known, that Kent’s election campaign was sabotaged by senior members of his own party, the Alberta Progressive Conservatives, after Kent advocated policy changes and an end to the party’s patronage practices;

g) The Defendants knew, or ought to have known, that the Article’s author, Don Martin, had never met nor spoken to Kent prior to the publication of the Article;

h) The Defendants knew, or ought to have known, that Martin and his editors have a history of providing preferential coverage to the Alberta PC leadership in return for exclusive early access to government policy announcements, and that this “deals for stories” arrangement is detailed online in publicly available documents which have never been legally challenged by Martin, his editors or managers;

i) The Defendants knew, or ought to have known, that the Article attacks Kent while heaping praise on his brother Peter Kent’s federal Conservative political campaign, but fails to explain to readers that Peter Kent’s campaign had been publicly endorsed and financially supported by David Asper, who was president of the National Post and vice-president of Canwest at the time of the Article’s first publication; that Peter Kent himself was a Canwest executive at the time of the Article’s first publication; and that the National Post endorsed Peter Kent in its pages and web pages as “Our man in Thornhill” (Peter Kent’s Toronto constituency);

j) The Defendants have published and are republishing the Article on a news page of the nationalpost.com website; have altered the date of first publication; and have removed the “Column” sub-headline, which appeared above the Article from February 12, 2008 until the acquisition of the nationalpost.com by Postmedia;

k) On or about August 18, 2010 and October 12, 2010 Kent caused to be delivered to Postmedia, Godfrey and Fisher notices setting out the defamatory nature of the Article. Notwithstanding receipt of such notices, none of Postmedia, Godfrey and Fisher have at any time made any reasonable efforts to confirm the truth and accuracy of facts upon which the Article was ostensibly based;

l) The Defendants have not afforded Kent the opportunity to respond to the defamatory statements that they continue to publish, and they have made no, or inadequate, efforts to include any elements of balance, fairness or impartiality in the Article;

m) The Defendants knew, or ought to have known, that Kent was denied his right of reply to the defamatory Article by the previous owners and managers of the National Post, nationalpost.com and the Calgary Herald;

n) The continuing publication of the Article in Canada, New York and throughout the world further injures the Plaintiff’s professional name and reputation in the New York-based network television news industry, to which the headline and much of the Article’s text maliciously refers, as well as injuring his name and reputation throughout Canada with respect to his candidacy for elected office, whether municipal, provincial or federal;

o) The writing and publishing of the Article were motivated by malice against Kent as stated above; and

p) No apology has been made or offered to Kent.”

As well as punitive and exemplary damages of $3 million, the Statement of Claim seeks a permanent injunction prohibiting the defendants from continuing to publish the Martin article, as well as a mandatory injunction requiring the publication of a full and complete retraction in the National Post, the Calgary Herald and all related websites.

Further details to follow as the actions proceed.

National Post Concedes Worldwide Libel Damages To Court In Alberta

2010-11-01T05:12:00.002-06:00

A key concession has been made before the New York State Appellate Court by the defendants in Arthur Kent’s defamation action against Don Martin, the National Post Company and Canwest.

In a written submission to the Court, counsel for the defendants confirmed that Kent is entitled to seek worldwide libel damages before Alberta’s Court of Queen’s Bench regarding international publication of the article at issue.

Much of the text of the Martin article, first published on the nationalpost.com website on February 12, 2008, is devoted to a defamatory smear of Kent’s name and reputation in the New York-based U.S. broadcast news industry, while omitting mention of Kent’s award-nominated contributions to the corporate defendants’ own newscasts and newspapers.

Kent filed lawsuits against Martin and Canwest, the bankrupt former owners of the National Post and Calgary Herald, in both Alberta and New York in 2008.

Separately, Kent’s lawyers have been instructed to commence action against the newspapers’ new owners, Postmedia Network Inc., who are republishing the defamatory article. Postmedia is an investment entity owned mainly by U.S. speculators headed by GoldenTree Asset Management of Manhattan.

In the New York action, a trial court dismissed Kent’s case versus Canwest in 2009 on grounds of “inconvenient forum” due to the ongoing case in Alberta, a ruling that Kent appealed. The appeal hearing took place last week in the splendidly ornate Appellate courtroom on Madison Square Park in Manhattan.

Kent’s lawyers say the defendants’ concession now largely relieves the need for separate actions in different jurisdictions.

"At the beginning of this litigation there was uncertainty regarding what damages were available to Arthur Kent and where,” says lawyer Brent Blakely. “So Kent sued in both the U.S. and Canada to ensure that these issues were determined, and that he received a complete recovery.

“As a result of the New York litigation the parties are now in complete agreement, indeed the Defendants have stipulated in their pleadings that Kent is entitled to recover all worldwide damages in the Alberta action."

The defendants’ written brief to the five judges of the New York Appeal Court addresses the matter of damages at considerable length, and concludes:

"Kent quite clearly is permitted to seek all of his damages in his pending lawsuit in Alberta."

A jury in Alberta will be in no doubt that Martin and the corporate defendants understand that the Calgary Court can hear and address detailed damage assessments from New York, California and other U.S. states, as well as jurisdictions including the United Kingdom and Afghanistan, where the defamatory article has caused damage to Kent’s name, career and media ventures.

Answering Kent’s brief, the defendants’ lawyer wrote:

“Canadian courts have made clear that libel plaintiffs are entitled to recover in Canada the complete damage to their reputations caused by the publication of a false statement, and even can do so without proof of specific financial loss -- reputational damage can be presumed by a jury. E.g. Munro v. Toronto Sun, 39 O.R.2d 100, 76 (Ont. H.C.J. 1982).

"Under Canadian libel law, an award of damages is intended to compensate for the immediate harm caused by a defamatory statement and to provide a sum large enough "to convince a bystander of the baselessness of the charge", in the event that the libel "emerges from its lurking place at some future date." Broome v. Cassell & Co. [1972] A.C. 1027, 1071 (H.L. 1972).

The defendants’ brief goes on to state:

"In making an award of damages, Canadian courts are directed to take into account a number of factors, including specifically "the breadth of distribution of the publication of the libel." Leenen v. Canadian Broad. Corp. 48 O.R.3d 656, 205 (S.C.J. 2000), aff'd, 54 O.R.3d 612 (C.A. 2001).

"Canadian courts quite clearly contemplate recovery of libel damages occurring in other jurisdictions, and indeed have the same interest in avoiding multiple lawsuits over the same alleged libel as U.S. courts…”

The defendants’ brief then states:

"Kent quite clearly is permitted to seek all of his damages in his pending lawsuit in Alberta."

In their arguments supporting Kent’s appeal of the New York trial court’s dismissal of his action in New York State, Kent’s lawyers addressed the issue of the National Post’s new ownership:

“This case involves important policy considerations that involve implications of the First Amendment: how far can a giant New York owned media company go under the veil of “journalism” to assassinate the character of an honest professional?

“In fact, far from being a failed politician responsible for his own loss, Kent was personally recruited by the leader of the government of Alberta, Canada to help revive Alberta’s governing Progressive Conservative Party. However, Kent’s call for a more modern and effective style of government was met with hostility that led to a campaign to destroy his personal and professional reputation on an international scale, in order to remove a credible voice for genuine change.”

As reported here previously, Martin had never met or spoken with Kent. The article lacked any comment from Kent or his supporters, and was based on malicious lies from anonymous PC Party “insiders” and “senior campaign strategists”.

Both the National Post and Calgary Herald refused to publish Kent’s response to the attack.

The attack was published after Kent urged Premier Ed Stelmach to end the PC party’s patronage practices and to refine his ill-fated oil and gas royalty hikes. Stelmach refused, but over the following two years was forced to gradually reverse the regime due to the damage caused to Alberta’s energy industry.

Kent’s lawyers continued in their submission:

“What made this article newsworthy was the fact that the Defendants intended it to be understood as news. It was not an “opinion column”. The article sandwiches a false account of Kent’s worthy candidacy for public office between opening and concluding misrepresentations of his reputation and achievements in the New York-based network television industry.

“Thus (the) Defendants published a double-barrelled libel, calculated to magnify damages through repeated references to New York, a jurisdiction perceived by both New Yorkers and Canadians to be the last word on professional reputations in terms of media, business and politics.

“The article’s focus on Kent’s name and star status as a correspondent reporting to New York is the only basis on which the article would be published on an international web portal such as the nationalpost.com.

“Defendant Martin, his sources and his editors chose to publish this news article with the express purpose of damaging Mr. Kent’s reputation where that reputation was most familiar to Mr. Kent’s audience, namely in the heart of the New York-based network television news industry.”

Now the last word will be spoken in Alberta, but not without consideration of the Big Apple and the wider world beyond.