Tag: Reprehensible Conduct

"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.

"Reprehensible" Government Conduct Results in Special Costs Order

Adding to my archived posts addressing tensions between BC’s Judiciary and the Government, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding the Government acted in a ‘reprehensible‘ way when dealing with Provincial Court Judges salaries in resorting to “secretive…unconstitutional considerations“.  This resulted in an order for payment of special costs.
Today’s case (Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General)) is the latest chapter dealing with a salary dispute between the Provincial Court Judges’ Association of BC and the Government.  The PCJA succeeded in their petition respecting the remuneration dispute.   The PCJA then sought payment of special costs associated with the litigation   Mr. Justice Macaulay agreed this was an appropriate remedy and provided the following rebuke to the Government:
[12]         The aggravating feature in the present case is the entirely inappropriate response of the AG in the Cabinet submission. The AG knew that the Cabinet submission focused on issues, including the question of linkage between judicial and other civil servant salaries, that the Supreme Court of Canada had expressly rejected in Bodner as unconstitutional. That is evident from the wording of the submission and is deserving of censure.
[13]         Given the importance of the process to the public and the PCJA, coupled with the need for transparency in this proceeding, two other matters also deserve censure. First, ordinarily a copy of the Cabinet submission would not be produced. It was only produced in this case as a result of court order. If the Cabinet submission had not been produced, the court may not have appreciated that the government response was based on constitutionally inappropriate considerations. In part, that is because the government affidavit material described the content of the Cabinet submission in a misleading way.
[14]         Second, the AG spoke to the media on May 25, 2011, and specifically raised the linkage to other salaries as “another factor” for consideration by government in formulating its response. The AG did not provide an affidavit or any sworn evidence in this proceeding but he did respond, albeit by letter of his counsel, to questions that counsel for the PCJA raised respecting the media interview. Counsel for the PCJA describes the response as disingenuous. I am not prepared to go that far in the circumstances but the response was certainly less than forthright. The actual content and context for the interview is only available because the media recorded it.
[15]         In my view, the government’s conduct relating to the important constitutional process of setting judicial remuneration as well as its conduct during the judicial review proceeding deserve judicial rebuke. I reach this conclusion reluctantly but have kept in mind that the effectiveness of the process necessarily depends on the goodwill of government. The secretive resort to unconstitutional considerations during the framing of the government response is entirely inconsistent with the obligation of government as was its failure to be forthright during the proceeding.
[16]         In the result, the Legislative Assembly made its decision not understanding how Cabinet arrived at its decision. The public, the PCJA and the court are all entitled to more from the AG and the government
[17]         As a result, the PCJA is entitled to its costs, to be assessed as special costs.

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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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