Gregor Robertson and Geoff Meggs lawsuit against Kirk LaPointe may hinge on what constitutes malice

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      One of the most dramatic developments in this year's civic election occurred when Vision Vancouver mayor Gregor Robertson and Vision Vancouver councillor Geoff Meggs filed a defamation suit against NPA mayoral candidate Kirk LaPointe.

      It came after LaPointe had repeatedly highlighted a visit by Meggs and three other Vision Vancouver candidates to a CUPE Local 1004 meeting.

      Meggs told the CUPE audience that the mayor had "again recommitted not to expand contracting out". The union local later donated $34,000 to Vision Vancouver.

      LaPointe alleged that Meggs had acted against the city's best interest, even raising the word "corruption" in connection with his visit to CUPE 1004.

      Then when LaPointe was sued, the NPA mayoral candidate claimed that his opponents were practising "intimidation".

      His party issued a statement citing lawyer Geoffrey Cowper's view that LaPointe's comments were "fair comment" and therefore were legal under Canadian common law.

      All of this has probably confused Vancouver voters who aren't familiar with the intricacies of media law.

      The test for fair comment was outlined by the Supreme Court of Canada in a lawsuit filed by right-wing activist Kari Simpson against former broadcaster Rafe Mair and WIC Radio, which owned CKNW Radio.

      Writing for the majority in the Mair-Simpson case, then justice Ian Binnie concluded that fair comment must consist of the following:

      * The comment must be on a matter of public interest.

      * The comment must be based on fact.

      * The comment, though it can include inferences of fact, must be recognizable as comment.

      * The comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? 

      "Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice," Binnie wrote. "The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice."

      The court ruled that there was no malice on the part of Mair, so he emerged victorious.

      So what is express malice? Black's law dictionary defines to mean "the wilful and premeditated determination to bring about harm to another".

      If this case involving LaPointe and the two Vision Vancouver politicians ever goes to trial, you can be sure that the lawyers will be splitting hairs over whether or not the NPA candidate had a wilful and premeditated determination to bring about harm to Robertson and Meggs.

      In Canadian Libel and Slander Actions, lawyers Roger McConchie and David Potts wrote that express malice is actuated when the defendant makes a comment "for the dominant purpose of injuring the plaintiff because of spite or animosity".

      Key to the concept of malice can be a direct and personal interest.

      Ultimately, a judge would have to determine the purpose of LaPointe's comment.

      But in the court of public opinion, it's conceivable that LaPointe may have already won round one by characterizing the lawsuit as an act of bullying, which plays into the overall narrative of the NPA's campaign against Vision Vancouver.

      Comments

      6 Comments

      Dr. Jack

      Nov 11, 2014 at 7:56pm

      Just forget about malice!!

      Call it what is motivating Robertson and Meggs:

      FEAR!!

      People have realised that Emperor Gregor has no clothes!!

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      Bøb Røgér

      Nov 11, 2014 at 10:58pm

      I never worried about malice on the part of Rafe Mair. Competence was usually the major issue.

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      ursa minor

      Nov 12, 2014 at 8:43am

      If Lapointe is arguing that the CUPE 1004 is a quid pro quo and Meggs is arguing that forgoing further contracting out is in the City's best interest, wouldn't the burden of proof fall on who has the correct position?

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      Just sayin'

      Nov 12, 2014 at 9:04am

      Does Meggs really want Visions backroom politics on trial? I doubt it. That could bring real heat that he won't be able to bully his way out of. This will never see the courtroom.

      As a side note Charlie must be proud. One of his articles is now a feature piece in Vision propaganda. Most of the clips they use in that piece are from free rags that survive solely on advertising dollars. So, how much did Vision pay (in the form of advertising dollars) to have those extremely favorable "editorials" published?

      That ad also raises a good question. Why is Gregor pushing so hard for a UBC subway line if UBC isn't part of Vancouver? I'm not sure why he spending so much time advocating transportation issues for non-residents.

      Maybe Kirk should go cry to his mommy like Gregie and Geoffy did.

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      COPE Recruiter

      Nov 12, 2014 at 10:35am

      Hey Just Sayin,

      You sound like a pretty cool dude, wanna join our ranks?

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      Richard

      Nov 12, 2014 at 10:50am

      Vision should be more afraid of a police investigation into their deal then Kirk LaPointe trying to make political hay out of it. Just saying.

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