While a former war correspondent achieved vindication in his defamation suit against one of Canada’s biggest media companies, it came at a great expense, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.
The legal publication reports the Alberta Court of Appeal increased the costs awarded to journalist Arthur Kent in his successful defamation case against Postmedia, “saying the trial judge erred when she said allegations of intentional concealment of documents were unproven.”
Kent, who gained notoriety in 1991 as the ‘Scud Stud’ while reporting on the first Persian Gulf War, ran as a Progressive Conservative candidate in the Alberta legislature in 2008.
During his bid for office, a reporter wrote a critical article about Kent. At trial, Justice Jo’Ann Strekaf noted, “the overall tenor of the article is that Arthur 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.”
Strekaf found the article to be defamatory and awarded Kent damages totalling $200,000 and costs of $250,000, despite his claim for $1.2 million in costs.
“But she rejected as unproven Kent’s allegations the defendants were fraudulently concealing records and giving false evidence surrounding a number of emails between Kent and his campaign’s legal counsel, despite saying they were ‘highly relevant and material to the litigation,’” The Lawyer’s Daily article states.
However, Justice Peter Martin, who wrote the unanimous decision of the appeal court, rejected that finding and adjusted the costs awarded to $450,000.
“The failure of the respondents to disclose these highly relevant emails … represented a fundamental breach of the respondents’ obligations,” the decision states. “It is no excuse to say that this was done to protect a journalist’s source or at the request of the client. [We] respectfully conclude that the trial judge did err, and that the evidence and factual findings she made regarding these allegations established that both had been proven.”
But Winkler, principal and founder of Winkler Dispute Resolution, says he thought Kent would likely have been disappointed with the ultimate result of the litigation.
“And he recovered $200,000 in damages, which in my view seems low in light of what the Court of Appeal described as a devastating attack on him,” he says. “There were certain findings that the Court of Appeal describes as serious misconduct by the defendants, which the court found were substantiated by the evidence, and in my view, the general damage award is very low.”
Winkler says the challenge in a libel trial, unlike a normal commercial case where damages can be quantified, is that the notion of general damages is an esoteric concept.
“It’s really a number the judge or the jury picks out of the air based on their overall impression of the case,” he says, adding the appeal court suggested that one factor in determining the appropriate cost award was deterrence.
“So when it comes to the cost award, the real question is do the costs of $450,000 represent a deterrent from engaging in the same kind of serious misconduct which the Court of Appeal found to exist?
“One might say to provide that kind of cost award in relation to the overall costs did not achieve the goal of providing a deterrent [to the writer of the defamatory article], the National Post and others who might consider similar conduct in relation to their reporting.”