Canadian Lawyer Magazine on Bernier v. Kinsella: “Bernier failed”

Full story here. Snippets below:

“The Ontario Superior Court has dismissed People’s Party of Canada leader, Maxime Bernier’s defamation action against lawyer, author and consultant, Warren Kinsella.

In Bernier v. Kinsella, 2021 ONSC 7451, the court found Bernier failed to overcome the statutory hurdle under Ontario’s anti-SLAPP legislation, which is necessary before a defamation action involving a matter of public interest can proceed. Section 137.1 of the Courts of Justice Act calls for the dismissal of defamation proceedings concerning matters of public interest “to avoid the weaponization of the courts against freedom of speech and public discourse.”

…Bernier alleged that he lost his seat because of Kinsella’s statements. But the court said that due to the prevalent reports of Bernier as racist and xenophic, “Mr. Kinsella’s postings can be seen as a drop of vitriol in a sea of criticism.” The court concluded that Bernier failed to demonstrate any harm flowing from Kinsella’s statements.

The court cited Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, where the Court of Appeal said that the anti-SLAPP legislation aims to “weed out litigation of doubtful merit which unduly discourages and seeks to restrict free and open expression on matters of public interest.” In the end, the court did not allow Bernier’s defamation action to proceed because of his failure to satisfy anti-SLAPP’s two-part screening mechanism.”


Lawyer’s Weekly on Bernier v. Kinsella: “absolutely correct”

Full story here. Snippets below:

“People’s Party of Canada (PPC) leader Maxime Bernier has been dealt a blow in his defamation action against noted political pundit Warren Kinsella after an Ontario Superior Court justice dismissed it under a provincial law aimed at preventing powerful interests from bringing actions which chill speech on issues of public policy.

…Justice Calum MacLeod ruled Bernier was unable to clear those hurdles and dismissed the lawsuit, writing that the former MP ran a “significant risk that his action will succumb to one of the defences of justification or fair comment.”

…Justice MacLeod wrote the case was not one of “false news” with no foundation in fact, and that Kinsella was basing his comments on actual positions taken by Bernier…

[MacLeod wrote:] “As the evidence shows, widespread characterization of Mr. Bernier and the PPC as racist and xenophobic or at least as pandering to those elements of the political spectrum was rife in the media. Comparisons with Donald Trump, Nigel Farage or Marine LePen were widespread. Mr. Kinsella may have approached his task with particular caustic enthusiasm, but, at worst, Mr. Kinsella’s postings can be seen as a drop of vitriol in a sea of criticism.”

…Noted defamation lawyer Howard Winkler of Winkler Dispute Resolution said he felt Justice MacLeod was correct to dismiss Bernier’s action and the case stands as a message that the anti-SLAPP legislation is going to catch debate and discourse of a political nature in all but the most egregious cases…”

“The legislation is broader than just David and Goliath-type situations — it was intentionally drafted to protect expression related to matters of public interest,” he said. “It is absolutely correct for the court to look at who the parties are and the context in which the exchange is took place — and cases where you have public figures engaged in discourse related to public policy they should not be before the courts.”


My latest: the Tory civil wars, 2021 version

With thousands of British Columbians facing dangerous flooding, inflation soaring to 20-year highs, and the virus surging again, it’s comforting to know that the Conservative Party of Canada is focused on the timing of a leadership review.

But, really, that’s just business as usual for the Tories, isn’t it? They never miss an opportunity to miss an opportunity.

They’d rather talk about themselves. Not you, Canada.

It’s nothing new, but it’s still plenty weird. They’re the only credible alternative to the worst prime minister in a century. They held him to a minority government, twice, when it looked certain he’d do much better. They have representation in every region and every province.

But their eyes are trained, laser-like, on their own navels.

There they were, again, this week. A Conservative senator from Saskatchewan, Denise Batters, announced the launch of a slick online petition to ditch her leader, Erin O’Toole.

This writer has gotten to know Batters over the past couple years, and can attest to the fact that she is no bloodthirsty Paul Martin-style mutineer. She’s a sensitive and thoughtful person, and therefore harder for Team O’Toole to demonize.

And she’s a fan of irony. “Mr. O’Toole flip-flopped on policies core to our party within the same week, the same day, and even within the same sentence. The members didn’t have a say on that, but we must have one on his leadership,” Batters declared in a statement she released to the media.

This is where the irony part comes in. Said the good senator: “We can’t afford to see our party ripped apart again. When we’re divided, the Liberals win.”

Except, um, publicly calling for your party’s leader to be fired is the dictionary definition of “divided.” That’s what “ripping part” literally is.

Irony meter: Exploded.

Look, this space carries no brief for Ever O’Terrible. He’s remarkably unremarkable, and he prefers to have multiple positions on single issues — carbon taxes, assault weapons, vaccinating his candidates, you name it. The federal Conservative leader is the Chinese food buffet of Canadian politics — an hour after trying him out, you’re feeling hungry again.

But declaring a Tory civil war, right now, is a really bad idea. Three reasons. First, as noted above, it’s a minority Parliament. With the able assistance of The Prime Minister Without A Portfolio, Jagmeet Singh, Justin Trudeau could engineer an election in a snap.

Secondly, as was also noted above, there’s more pressing issues to be pressed. I mean, Senator Batters, have you looked at the footage of what B.C. is experiencing this week? At all?

Thirdly, we in the media positively love every skirmish in every civil war, because if something bleeds, it leads, etc. Writing about political fratricide is a lot more fun than writing about boring old policy stuff.

But you won’t like the result, Team Tory. This writer was a frontline warrior in the Jean Chretien-Paul Martin wars, which went on for years. I personally had a lot of fun, because I’m a walking Irish pub fight. But did anyone else win?

The Liberal Party of Canada sure didn’t. For the political sin of washing its dirty laundry in public, the public put the Grits in the penalty box for a decade.

Will the Conservatives listen to me? Of course not. Nobody listens to me.

Even so, you’d be well-advised to exercise extreme caution, Senator Batters et al. Wars are easy to start.

They’re not ever easy to stop.

— Warren Kinsella was chairman of the federal Liberal war rooms in 1993 and 2000