Tag: Mainstream Canada v. Staniford

"Fat Bottomed Girls" and "Kangaroo Court" Comments Strip Successful litigant of Costs

Update – July 22, 2013the below action was overturned on appeal with the Defendant being ordered to pay general damages, punitive damages and special costs due to his “misconduct during the trial
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Earlier this year I highlighted a judgement addressing whether a litigant blogging about witnesses during the course of a trial, and referenceing ‘fat bottomed girls’ in the process, amounted to witness intimidation.
Reasons for judgement were released today (Mainstream Canada v. Staniford) by the BC Supreme Court, Vancouver Registry, dealing with the costs consequences following the underlying trial.
Ultimately the Plaintiff’s defamation claim against the Defendant was dismissed.  The Defendant would ordinarily be awarded his costs and disbursements under the BC Supreme Court’s ‘loser pays’ system.   Madam Justice Adair refused to follow this ordinary course, however, finding that the Defendant’s conduct during the trial was ‘deserving of rebuke‘ and ultimately stripped him of 75% of the costs he otherwise would be entitled to.  In doing so the Court provided the following reasons:
 [5]             The general rule is stated in Rule 14-1(9) of the Supreme Court Civil Rules:  “costs of a proceeding must be awarded to the successful party unless the court otherwise orders.”  Thus, Rule 14-1(9) continues to confirm the residual discretion of the court to deny, on a principled basis, a successful party the costs to which it would otherwise be entitled:  see LeClair v. Mibrella Inc., 2011 BCSC 533 (“LeClair”), at para. 9.  Where the successful party has engaged in misconduct, the outcome of the litigation is irrelevant, and the court has the power to deprive the successful party of costs…
8]             The discretion conveyed to a judge under Rule 14-1(9) is extremely broad:  see LeClair, at para. 30…
[12]         I described some of Mr. Staniford’s conduct in my Reasons for Judgment as follows, at paras. 88-92:
[88]      . . . During the trial, Mr. Staniford relaunched the GAAIA website, this time using a service provider outside of Canada.  During his cross-examination, Mr. Staniford proclaimed that he would not be stopped by an injunction pronounced in this action.
[89]      Shortly before the trial, and after the witness lists had been exchanged, Mr. Staniford accused the Ahousaht First Nation of accepting “blood money” from Cermaq in one of his Facebook postings. 
[90]      Mr. Staniford looked on the trial as an opportunity to get his message out, and he did not hold back.  For example, in Internet postings during the trial, Mr. Staniford demeaned and mocked the physical appearance of three of Mainstream’s witnesses, Mary Ellen Walling, Leanne Brunt and Dr. Gallo.  Mr. Wotherspoon brought the comments concerning Ms. Walling and Ms. Brunt to my attention when court was convened the morning of January 26, 2012.  The matter was discussed in court and was framed (appropriately) as an issue of Mr. Staniford victimizing Mainstream’s witnesses by his insulting comments.  Mr. Staniford was present during the discussion.  Despite that, Mr. Staniford then repeated his comments about Ms. Walling and Ms. Brunt outside court for an interview that was published on YouTube.
[91]      During his testimony, Mr. Staniford attempted to justify his comments about Ms. Walling and Ms. Brunt as being “very complimentary,” and said he thought Ms. Walling should be “flattered” at being labelled a “fat-bottomed girl.”  The notion that Mr. Staniford would ever pay a sincere compliment to Ms. Walling is, itself, laughable and entirely unbelievable. 
[92]      In another Facebook posting during the first week of the trial, he compared the trial to a kangaroo court….
[15]         By engaging in the conduct I described, Mr. Staniford demonstrated his disrespect for witnesses and his disdain generally for the court and the judicial process. 
[16]         Mr. Staniford’s flagrant disregard of my comments during the discussion on January 26, 2012 concerning his victimization of witnesses and in my ruling (indexed at 2012 BCSC 1609) is particularly troubling.  His YouTube interview shortly after my ruling is roughly equivalent to giving the court “the finger,” as he did to Mainstream and its lawyers in response to their demand letter.  Mr. Staniford’s attitude (as expressed during his cross-examination) seemed to be that since Lord Denning’s comments (which I adopted) had been made in the early 1960s, they did not apply to him and he could ignore them.  Once again, Mr. Staniford demonstrated that he is a bad listener.  His repetition in court, and under oath, of his ridiculous justification for his sexist and puerile comments about Ms. Walling and Ms. Brunt – that the comments were complimentary and flattering – insulted the intelligence of anyone who had to listen to it. …
[20]         Although I consider Mr. Staniford’s misconduct in connection with the trial to be serious and clearly deserving of censure, I think that depriving the defendants of all of their costs of the action is too severe, given the dollar amounts likely involved for a 20-day trial.  I have concluded that an appropriate order is that the defendants have 25% of their assessed costs and disbursements.  (There should be only one set of costs for both defendants.)  Depriving the defendants of 75% of their assessed costs and disbursements, in my view, reflects appropriate condemnation of Mr. Staniford’s misconduct.

"Fat Bottomed Girls": When Free Speech and Alleged Witness 'Victimization' Collide in the BC Supreme Court

This is a little off topic but thought this may be of interest for my readers.
Trials are a matter of public record and Canada’s open-court principle can sometimes create legitimate privacy concerns for litigants.  The BC Supreme Court published reasons for judgement today addressing such a concern.
In today’s case (Mainstream Canada v. Staniford) a blog entry was posted during a trial referring to two witnesses who testified that “It is not clear if they both cycled to the courtroom – but there were echoes of Queen’s classic 1978 hit “Fat-Bottomed Girls” playing as they both took the stand.
The Plaintiff’s lawyer brought an application for a direction that the Defendant “refrain from making postings referring to witnesses in any derogatory or disparaging fashion that may have the effect of victimizing a witness or witnesses who are testifying, or may have testified, at this trial.”  Madam Justice Adair refused to make such an order but in doing so provided the following reminder to the litigants:
[7]             I am going to quote from Lord Denning’s judgment in the case of Attorney-General v. Butterworth, [1962] 3 All E.R. 326 (C.A.).  This is a decision of the English Court of Appeal.  It is from 1962.  But in my view it is still well worth quoting, and well worth reminding counsel, parties and those present in this courtroom, concerning issues relating to the administration of justice and the appropriate and fair treatment of witnesses who come forward, often under the compulsion of a subpoena, to give evidence and perform their civic duty in a trial.
[8]             Lord Denning says (in the context of ruling on an application that individuals be found in contempt of court), at p. 329:
For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it.  How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he had given?  After he has honestly given his evidence, is he to be liable to be dismissed from his office, or to be sent to Coventry [a reference that perhaps had more resonance in 1962 than it does now, but essentially meaning banished or punished] simply because of that evidence which he has given?  I decline to believe that the law of England permits him to be so treated.  If this sort of thing could be done in a single case with impunity, the news of it would soon get round.  Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences.
[9]             Further down at p. 329, Lord Denning says:
I have no hesitation in declaring that the victimization of a witness is a contempt of court whether it be done whilst the proceedings are still pending or after they have finished.
[10]         In my view, it is clear from Lord Denning’s remarks that the court takes the intimidation or the victimization of a witness extremely seriously and is willing to use its contempt powers to punish that conduct.
[11]         Having said that, in the light of the submissions made by Mr. Sutherland concerning the live issues in this case relating to the conduct of Mr. Staniford – his conduct of the case inside and outside the court – I am not going to give the direction sought by Mr. Wotherspoon.  However, my expectation is that the parties and those present in this courtroom will take very seriously Lord Denning’s comments which I have read out and which I adopt.
 

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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