Tag Archives: CanWest

Court awards reporter-turned-politician damages, costs, in defamation case

By Brian Brennan
June 2016

Former TV journalist Arthur Kent outside court on Nov. 16, 2015. © Jeff McIntosh 2015, used with permission

Former TV journalist Arthur Kent outside court on Nov. 16, 2015. © Jeff McIntosh 2015, used with permission

An award-winning Canadian war correspondent who left television journalism to enter politics won a defamation lawsuit against Canada’s largest newspaper publisher and one of its former columnists. Arthur Kent was awarded $200,000 in compensatory damages.

Kent, who acquired the nickname “Scud Stud” while reporting for NBC News on Iraqi missile attacks against Saudi Arabia during the 1991 Persian Gulf war, launched the defamation suit against Canwest. The media chain, now-defunct, was formerly the corporate owner of the National Post, Calgary Herald, Edmonton Journal and other Canadian newspapers. In February, 2008, it published an opinion piece by political columnist Don Martin that Kent characterized in court as “poisonously false.”

Court of Queens Bench Justice Jo’Anne Strekaf ruled that the current corporate owner, Postmedia Network, is liable because it continued to publish the Martin column online for more than two years after it purchased Canwest’s newspapers and archival databases in 2010. She criticized Canwest for “exercising virtually no editorial oversight over the article prior to its publication,” and said some of the factual material in the column did not meet the test for accuracy.

Postmedia’s lawyer had asked that “nominal” damages be awarded if the judge was to rule in Kent’s favour, but she disagreed.

“I find that Mr. Kent is entitled to significantly more than nominal damages,” she wrote in her 60-page decision. “He suffered substantial distress and damage as a result of the defamatory statements in the article.” She said that while some of the opinions expressed might be regarded as fair comment – as argued by the defence – the article as a whole “would cause right-thinking members of society to think less of Mr. Kent.” (The classic definition of defamation includes any published material that tends to “lower a person in the estimation of right-thinking men.”) Justice Strekaf said the column contained a “harshly critical personal tone” not found in other newspaper commentaries on the Kent campaign.

The judge said the damage to Kent’s reputation was “exacerbated by the exaggerations and sarcastic tone in the article.” The overall tenor of the article, she said, was that Kent is a “politically naïve, arrogant, has-been journalist with a huge ego whose election campaign is in disarray and who is doomed to become an ineffective MLA if elected.”

Court testimony had revealed that Martin used information from unnamed Conservative party sources to contend that Kent’s campaign for a seat in a Calgary, Alberta provincial riding was failing because the “self-absorbed” star candidate refused to toe the party line and become “a mere infantry private who exists only to follow orders.” Kent suffered a narrow defeat in the election.

[See Reporter-turned-politician sues media giant for defamation ]

Martin acknowledged in court that he didn’t make direct contact with Kent for comment before his column appeared. The judge cited this failure as being unfair to Kent, and also pronounced as unfair the failure by the media defendants to provide Kent with an opportunity to respond to the Martin column after publication. Kent testified that he had submitted a 754-word rebuttal to the column that Postmedia refused to run either in edited form or print as a letter to the editor. Kent added that Postmedia also refused to publish an apology or issue a retraction. A Postmedia editor said the rebuttal, which named old guard party supporters that Kent refused to have on his campaign team, was rejected because it was “defamatory in nature.”

A contentious paragraph in the Martin column – which he retracted during the trial – asserted that a number of Alberta Conservatives had referred to Kent as “the Dud Scud.” “This statement does not qualify as truth or reportage,” ruled the judge. Martin had admitted under cross-examination that perhaps one – not several – Conservatives had used the “dud scud” phrase to describe Kent, but he could not remember who that source was. “I’d write it differently today.” None of the witnesses acknowledged using the phrase.

Kent, who pursued the lawsuit for more than seven years, said the judge’s ruling reinforces the fundamental principles of responsible journalism: “No genuine journalist will be anything other than reassured and encouraged by this decision. Truth still matters in journalism. Truth, accuracy and balance matter on the internet.”

He added that it took him years to obtain e-mails and other records from the corporate defendants to substantiate his case.

Martin, who now works as a television presenter for Canada’s CTV News network, had no comment on the court decision. Nor did his current employer. A spokesperson for Postmedia would only say the company is “reviewing the decision.” The judge said that if the two sides were unable to agree on legal costs, they could provide written submissions within 45 days of the decision.

Copyright © Brian Brennan 2016

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Reference:

Court of Queen’s Bench of Alberta, ruling in Arthur Kent vs Don Martin, The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd. and Canwest Mediaworks Inc.

UPDATE: Kent awarded $250,000 in legal costs in defamation lawsuit

By Brian Brennan
January 2017

A Canadian war correspondent who left television journalism to enter politics has received $250,000 in legal costs – $972,990 less than he sought – after winning a defamation lawsuit against Canada’s largest newspaper publisher and one of its former columnists.

Arthur Kent had been awarded $200,000 in compensatory damages plus $60,000 in interest in June 2016 when he won his case against Postmedia Network and its political columnist Don Martin. Kent and his lawyers said it was the first time in Canadian judicial history – “certainly since World War Two” – that a journalist and news company were found guilty at trial of defaming an election candidate. They also said it was “a first in the age of Internet publication.”

Kent, who acquired the nickname “Scud Stud” while reporting for NBC News on Iraqi missile attacks against Saudi Arabia during the 1991 Persian Gulf war, launched the defamation suit against Postmedia’s predecessor, Canwest. This media chain, now defunct, was the corporate owner of the National Post, Calgary Herald, Edmonton Journal and other Canadian newspapers. In February 2008, the chain published an opinion piece by columnist Martin about Kent’s bid for elected office. Martin claimed in his column that unnamed Conservative party sources, who opposed Kent’s candidacy, referred to him as “the dud scud.” Kent described the column in court as “poisonously false.”

Court of Queens Bench Justice Jo’Anne Strekaf ruled that Postmedia was liable because it continued to publish the Martin column online for more than two years after it purchased Canwest’s newspapers and archival databases in 2010. She criticized Canwest for “exercising virtually no editorial oversight over the article prior to its publication” and said some of the factual material in the column did not meet the test for accuracy.

The judge said that because most of Martin’s sources had only negative things to say about Kent, the columnist should have made a more reasonable attempt to contact Kent, and done more to verify the reliability of his critics’ comments. She noted that the widely-cited ethics guidelines of the Canadian Association of Journalists state that people who are publicly accused or criticized should have an opportunity to respond – even if only to decline comment – before the accusations or criticisms are published.

After winning the case, Kent’s lawyers asked the judge to award him $1,222,990 for his legal costs, incurred over a period of more than seven years. The Postmedia lawyers responded that each side should pay its own costs.

In reducing Kent’s claim to $250,000, Justice Strekaf ruled that many of the legal fees he incurred related to “matters that did not advance the litigation.”  She added he was not entitled to costs associated with a separate, unsuccessful lawsuit he launched against Conservative party members he accused of conspiring to undermine his campaign.

Kent, in a written statement, said he and his lawyers are “taking careful measure of several specific findings” and that “full comment must wait for another time.” He added he did not pursue the suit for monetary gain. “I did it to reveal the truth and set the record straight.”

While pleased with his court victory, Kent said “there has to be a just economic outcome as well.” Echoing comments made in a 2011 speech by Canada’s Chief Justice, Beverley McLachlin, he noted that most Canadians – except for the wealthy – don’t have adequate access to the justice system because of the high costs involved. “Through my journalism, and at law,” said Kent, “I am obliged to even the dollars and cents side of the access-to-justice ledger. Just watch me.”

[See Court awards reporter-turned-politician $200,000 in defamation case ]

Postmedia made three offers to settle the defamation case before it went to trial. They ranged from $150,000 to $325,000. All were rejected by Kent and his lawyers, partly because none involved an admission of wrongdoing or an undertaking to retract, correct, or apologize for the offending column. “The concept of an apology or retraction is baked into defamation law,” Kent’s lawyer Michael Bates told the judge. He added that the conditions for accepting the third and final offer were “literally absurd” because they stipulated that Kent could not say anything publicly about the settlement or file the decision with the courts. That, said Bates, gave Postmedia “all of the benefits with none of the obligations or responsibilities.”

Kent also sought an injunction prohibiting Postmedia and Martin from republishing the offending column. Justice Strekaf dismissed this application on grounds that Kent failed to demonstrate there was “any meaningful prospect” the article might be republished. Postmedia’s lawyers had characterized Kent’s concern about republishing as “pure speculation.”

Former columnist Martin, who now works as a television presenter for Canada’s CTV News network had no immediate comment after Kent won the original case. He has since told iMediaEthics that he behaved responsibly by trying to get Kent’s side of the story before publishing.

“Columnists are under no legal or ethical obligation to contact a public figure who is the subject of a fair comment analysis,” said Martin. “But I contacted the email address on a news release, and that seemed a reasonable step. He had the better part of a day to respond and didn’t.”
Martin disagreed with the judge’s comment that what he called a quest for truth was, in fact, a search for negative information about Kent. In one email, for example, Martin had asked a source if she had “any more dirt” on the candidate. “I do not share (the judge’s) supposition that seeking the truth in a politically controversial situation to be inappropriate,” Martin told iMediaEthics. “There wouldn’t be much investigative journalism if we only went digging for positive news.”
Postmedia representatives told iMediaEthics they had no comment on the judge’s original ruling other than to say they would not appeal. “We do not wish to relitigate the case in the media.”
Under Alberta’s Rules of Court, the two sides have one month to decide whether or not they will seek leave to appeal the costs judgment.

Copyright © Brian Brennan 2017

 

Brian BrennanBrian Brennan, an Irish journalist living in Canada, is a founding feature writer with Facts and Opinions and a contributor to Arts dispatches and the Loose Leaf salon. He is the author of the Brief Encounters series. (Payment required). His profile of Calgary Mayor Naheed Nenshi, the first original feature in the journal’s inaugural issue, won Runner-up, Best Feature Article, in the 2014 Professional Writers Association of Canada Awards. Brennan was educated at University College Dublin, Vancouver’s Langara College, the Poynter Institute in St. Petersburg, Florida, and the National Critics Institute in Waterford, Connecticut.

Visit him at his website, www.brianbrennan.ca

Brian Brennan also plays jazz piano, for fun and profit.

 ~~~

Facts and Opinions is a boutique journal, of reporting and analysis in words and images, without borders. Independent, non-partisan and employee-owned, F&O is funded by you, our readers.We do not carry advertising or “branded content,” or solicit donations from partisan organizations. Thank you for your patronage, and please tell others about us. Most of our pages are outside our paywall. To help us continue, we suggest a minimum payment of .27 for one story, or for use of the entire site at least $1 for a day pass, and $20 for a year. With enough supporters  paying a small amount, we will continue, and increase our ability to offer original works.  Visit our Subscribe page for more details. 

 

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Reporter-turned-politician sues media giant for defamation

By Brian Brennan
December 2015

Former TV journalist Arthur Kent outside court on Nov. 16, 2015. © Jeff McIntosh 2015, used with permission

Former TV journalist Arthur Kent outside court on Nov. 16, 2015. Photo © Jeff McIntosh 2015, used with permission

A long-running defamation lawsuit against Canada’s largest newspaper publisher by an award-winning war correspondent who left journalism to enter provincial politics has concluded in Calgary, Alberta after a five-week trial. Court of Queens Bench justice Jo’Anne Strekaf reserved decision and said she would rule on the case of Arthur Kent versus Postmedia Network “sooner rather than later.”

Kent launched the suit after the National Post, Calgary Herald and other newspapers in a national chain published a February 2008 column by Ottawa columnist Don Martin that Kent characterized in court as “poisonously false.”

Martin used information from unnamed party sources to contend that Kent’s campaign for a Conservative seat in a Calgary provincial riding was failing because the “self-absorbed” star candidate refused to toe the party line and become “a mere infantry private who exists only to follow orders.”

Martin acknowledged in court that he didn’t make direct contact with Kent for comment before the column appeared.

A key paragraph in the Martin column – retracted by him during the trial – asserted that a number of Alberta Conservatives had referred to Kent as “The Dud Scud,” a phrase repeated in court. It was a mocking reference to Kent’s role in the Persian Gulf war of 1991, when his reporting for NBC News of Iraqi missile attacks on Saudi Arabia brought him fan mail and earned the boyish correspondent the nickname “Scud Stud.”

Kent, now 61, told the Calgary court that the nickname, coined by a San Francisco reporter in a spirit of “dark wartime humour,” later became part of his brand, denoting his high standard of performance as a television reporter, which included winning two Emmy awards. “It’s quick shorthand to describe me,” he said.

Before going into politics, Kent did TV reporting for the BBC, CNN, ABC News, and the CBC in Canada, as well as for NBC. He also wrote for such publications as The Observer newspaper in London, the San Francisco Examiner, the St. Louis Post Dispatch, and Maclean’s magazine in Canada.

He returned to Calgary in 2006 and used the city as a jumping-off point for trips to Afghanistan that resulted in a series of independently produced documentaries about Canada’s military mission in Kandahar.

Kent entered Alberta politics in 2007 with the endorsement of former Conservative premier Peter Lougheed, who said the party needed new blood. Kent told the Calgary Herald his native Alberta was losing its economic advantage as a province with low unemployment and low taxes, and he wanted to be part of the solution.

The lawsuit against PostMedia, the successor to CanWest, which owned the newspaper chain at the time of publication, is the third high-profile court case in which Kent has been involved. In 1992 he sued NBC for $25 million, after the network fired him claiming he refused an assignment in Croatia and implied he was a coward.

After an 18-month fight, he won an out-of-court settlement and a public retraction from NBC.

In 2008 he sued the makers of the Tom Hanks-Julia Roberts movie, Charlie Wilson’s War, for unauthorized use of footage and narration from a report Kent produced for the BBC about the Soviet invasion of Afghanistan. He also reached an out-of-court settlement in that case.

Kent suffered a narrow defeat in the 2008 Alberta election. He told the court he felt obliged to take legal action against Postmedia after editors at the National Post and Calgary Herald refused to publish a rebuttal to the Martin column that he submitted six days after the election.

The rebuttal was, he noted, exactly the same length – 754 words – as the offending Martin column. “I was looking for equal space.”

In it, Kent named longtime Conservative party supporters whose noses were out of joint when he opted to campaign with a different team from the one they suggested. Kent also took exception to Martin’s allegation that he “put campaign morale into a tailspin and complicated volunteer recruitment.”

Kent told the court the media defendants refused to run an edited version of his rebuttal, print it as a letter to the editor, publish an apology, or issue a retraction. He said Postmedia continued to make the Martin column available on its websites – more than 35 of them – for more than four years after the original publication.

Calgary Herald editor Lorne Motley, testifying as a designated officer of the Postmedia corporation, told the court he felt the Martin column was defensible: “The main facts it was based on were true.”

He added that Kent’s rebuttal was rejected because editors deemed it not suitable for publication. “It was defamatory in nature. That was the primary reason for our decision.”

The case took more than seven years to get to trial as new evidence came to light. At the outset, for example, Kent did not know one of the unnamed sources for the Martin column was his own campaign lawyer, Kristine Robidoux.

That information only emerged during the pre-trial discovery process in 2009 when Martin unexpectedly revealed Robidoux’s identity. Robidoux, who was suspended in 2014 for four months by the Law Society of Alberta for breaching client confidentiality,  subsequently became a witness for Kent after confessing she did wrong and issuing an apology.

While she admitted leaking the contents of private campaign emails to the columnist in response to a request for “dirt” about Kent, she said she never called Kent a “dud scud” and she “didn’t tell Don Martin most of the things he put in the article.”

She said she was shocked, physically sickened and appalled by the column, which she had hoped would be a positive piece showing that problems within the Kent campaign had been resolved. Instead, she said, the column was “extremely negative” and “a little mean.”

Another series of pre-trial delays occurred after Kent and his lawyers discovered a cache of Postmedia emails relating to the case, which Kent accused the media defendants of withholding even after a judge ordered the documents to be produced.

Witnesses for Kent included a journalism ethics expert, Jeffrey Dvorkin, who testified that the offending column “didn’t meet the standards of journalism at any level.”

He said Martin was a “useful idiot” for veteran Conservative party loyalists who opposed Kent’s candidacy and fed the columnist “spurious information” that should never have been published.

One of those opponents was the late Rod Love, former chief of staff to Alberta premier Ralph Klein and another unnamed source for the Martin column. Love had revealed in a guest column for the Calgary Herald in 1999 that he used leaks strategically as a form of political currency to keep journalists distracted while they pursued potentially problematic stories that might “cause heartburn.” During the 2008 election campaign he publicly registered his disenchantment with Kent by telling a radio interviewer he would be voting for another candidate.

Postmedia’s own journalism ethics expert, Dean Jobb, testified he found nothing wrong with the Martin column.

He said he was satisfied the columnist followed accepted journalistic practices: “He’s researching a campaign. He’s talking to two key insiders. He’s able to obtain an internal email that backs up and corroborates what he’s hearing. This is consistent with the ethical conduct of a journalist.”

Two Martin sources who testified for the defence – the man rejected by Kent as his campaign manager and the man who actually became his manager – said they spoke to the columnist with the understanding their remarks would be off the record and not published.

They said they were concerned Kent had damaged the party when he publicly scolded the leader, Ed Stelmach, for cancelling a planned appearance at a fund-raising breakfast for Kent, and they wanted to mitigate the damage.

Martin testified he decided to write about Kent when he heard from campaign lawyer Robidoux that the campaign was in disarray, and when a columnist for Canada’s other national newspaper – The Globe and Mail – wrote that Kent was defying conventional wisdom by running against his own party. “The future versus the past. It worked brilliantly for (Premier) Klein,” wrote Globe columnist Roy MacGregor.

Martin told the court he wanted to write the Kent story for a national readership because he seemed like a rogue candidate with his own agenda. “Instead of circling the wagons around the leader, he was shooting inwards.”

When asked by Postmedia lawyer Scott Watson who gave him the “dud scud” quote, Martin said he couldn’t recall. Later, under cross-examination by Kent’s lawyer, Michael Bates, he admitted that the contentious paragraph was not true.

He said that perhaps one – not several – Conservatives had called Kent a “dud scud” as he asserted in the column, and he could not remember who that source have might been. “I’d write it differently today.”

When asked about this admission, Postmedia ethics expert Jobb acknowledged that the paragraph “certainly shouldn’t read that way.”

Watson argued that the only untrue aspect of the “dud scud” quote was the fact that “rather than being a plural source attribution, there was only one.” He added that in general the column was a “fair and honest comment” on a matter of public interest and that if there were factual inaccuracies in the column, “it doesn’t amount to malice.”

In his closing argument, Kent’s lawyer Kent Jesse characterized the Martin column as a “hit piece” written with “trumped-up, mocking, ridiculing language” in a “reckless disregard for the truth” to turn public opinion against Kent. “They took Arthur Kent’s brand and they trashed it.”

Watson responded that the column was written within the context of previously published articles about a growing rift between Kent and the Conservative party hierarchy in the provincial capital, Edmonton. “We take issue with the allegation that the article was defamatory. The pith and substance of the column was that Kent’s campaign was not functioning well.”

Copyright © Brian Brennan 2015

Real journalism is not free. If you value evidence-based, non-partisan, spam-free information, please support Facts and Opinions, an employee-owned collaboration of professional journalists.  Details here.

 

Brian BrennanBrian Brennan, an Irish journalist living in Canada, is a founding feature writer with Facts and Opinions and a contributor to Arts dispatches and the Loose Leaf salon. He is the author of the Brief Encounters series. (Payment required). His profile of Calgary Mayor Naheed Nenshi, the first original feature in the journal’s inaugural issue, won Runner-up, Best Feature Article, in the 2014 Professional Writers Association of Canada Awards. Brennan was educated at University College Dublin, Vancouver’s Langara College, the Poynter Institute in St. Petersburg, Florida, and the National Critics Institute in Waterford, Connecticut.

Visit him at his website, www.brianbrennan.ca

Brian Brennan also plays jazz piano, for fun and profit.

 ~~~

Facts and Opinions is a boutique journal, of reporting and analysis in words and images, without borders. Independent, non-partisan and employee-owned, F&O is funded by you, our readers.We do not carry advertising or “branded content,” or solicit donations from partisan organizations. Thank you for your patronage, and please tell others about us. Most of our pages are outside our paywall. To help us continue, we suggest a minimum payment of .27 for one story, or for use of the entire site at least $1 for a day pass, and $20 for a year. With enough supporters  paying a small amount, we will continue, and increase our ability to offer original works.  Visit our Subscribe page for more details. 

 

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