Archive for the ‘Legal’ Category

Bowen Island Undercurrent found guilty of libel, must pay $35,100

January 3, 2013 Comments off

A man who was wrongly identified online as a sex offender by the Bowen Island Undercurrent was awarded $35,100 by a Supreme Court justice in late December.

You should probably read the full decision.

In a nutshell, a Bowen Island man, Simon James Sr., was found guilty of sexually touching a minor.
The Undercurrent, though, mistakenly used a file photo of the man’s son, Simon James Jr.

Hence the libel.

On the bright side, the print run of the paper was halted and not distributed. And the web version was quickly taken down, with only about 500 people having viewed the online version.

Kelly McManus wrote the story, while Justin Beddall was the editor.

In his judgement, Justice Sewell rules:

“In this case I have already decided that the publication was on a matter of public interest. However, in my opinion the publication of the plaintiff’s photograph was not an essential part of the report on the criminal proceeding in question. Publication of the Article without the photograph would have adequately informed the public of the matters addressed in the Article. In saying this, I should not be taken to be second guessing the editorial decision to publish a photograph. I do however think that this factor also called for a very high degree of diligence with respect to the accuracy of the photograph that was published.

“In this case the status of the source of the information was in one sense highly reliable. Mr. Beddall relied on information provided by Ms. McManus and Ms. Wait, both reliable sources. However, the principal difficulty I have is with the quality of the information that led to the publication. On the facts I have found no one ever identified Mr. James as the person who was convicted of the offence. The only person involved who had observed Simon James Sr., the person convicted, was Ms. McManus. However, Ms. McManus did not positively identify the plaintiff as that person. Her evidence went no farther than to say that the person in the photograph looked like the person convicted.


There was ample time for the defendants to confirm the true facts. Ms. Wait provided the photograph to Mr. Beddall some days before the Article was posted. It is of course obvious that if confirmation had been sought, Mr. James would have been able to provide the correct information.


“I am of the view that the conduct of Black Press prior to publication, while falling short of bad faith, is an aggravating factor. I have tried to avoid applying hindsight in assessing that conduct. However, I am satisfied that the way in which Mr. Beddall went about trying to verify that the photograph was in fact a photograph of the person convicted fell far short of the due diligence required in the circumstances. Despite this, the defendants denied liability and put the plaintiff to the expense of rebutting the defence of responsible communication.

“There is also no question that the plaintiff has been deeply emotionally affected by the publication of the libel. He removed the Raven Tales decals from his car, which was the one depicted in the photograph complained of this case. He has had difficulty in coping with his personal reaction to the publication.

“On the other hand there are also mitigating factors. The defendants moved very quickly to remove the libel from the Undercurrent web site once it was brought to their attention. Black Press ensured that the press run of the print version of the Undercurrent was held back until the Article could be altered to the satisfaction of the plaintiff’s counsel. The defendants made a timely offer to publish a retraction and apology that was not taken up by plaintiff’s counsel.

“I am also satisfied that Black Press took all reasonable steps to locate and remove cached versions of the Article from the World Wide Web. In this regard they cooperated with the plaintiff in diligently following up on all cached versions located and identified by his counsel.

“As a result it is clear that only a relatively small number of persons actually saw the libel and in all probability even fewer saw it without knowing that Mr. James’ picture had been posted in error. There was considerable evidence presented as to how often the site was viewed. I need not refer to it in detail. I am satisfied that less than 500 persons saw the offending material.

“Fortunately, there is no evidence that Mr. James’ career has been adversely affected by the publication. He has been invited to participate in community events involving children since the incident.

“I conclude that this is a case that calls for an award of significant damages, mitigated by the above factors.

“I have considered the cases on mistaken identity referred to by the defendants. In my view this is a more serious case than one of simple mistaken identity. In this case the Article and headline were intended to refer to Mr. James. They described him in some detail. The statements were made about him. In the cases referred to by the defendants, the error would have been obvious to anyone who knew the plaintiff. That would not be the case here because the captioned words do identify Mr. James.

“Taking all of the circumstances into account, I assess general damages in the amount of $35,000.

“I also award the plaintiff special damages of $100, being the cost of removing the Raven Tales decals from his car.

“The plaintiff is entitled to his costs of the action on scale B, but subject to the parties having liberty to apply with respect to costs.


Herbal supplement company sues Kamloops Daily News

September 14, 2012 Comments off

The Kamloops Daily News has been sued by Strauss Herb Company over an April 2 column by Russ Reid.

The company says Reid’s column gave readers the impression Strauss was knowingly trying to sucker customers into buying a worthless product, according to a story by Kamloops This Week reporter Tim Petruk.

According to Petruk:

The column was in response to a KTW front-page story nearly a month earlier — in the March 6, 2012 edition — titled Strauss claims victory, describing the fact Strauss Heart Drops had received natural-health designation from Health Canada.

In its statement of claim, Strauss took particular issue with one paragraph of Reid’s column — which stated Strauss “has refused to reveal its formula and put standard specific information about the ingredients on its product label.”

Reid went on to compare Strauss to 19th-century snake-oil salesmen and New York Ponzi-scheme con man Bernie Madoff.


The Kamloops Daily News responded, in documents filed last week, with a counter-claim against Strauss,  alleging false advertising and seeking orders from the court that Strauss stop making exaggerated claims about its products.

The newspaper also denied any malice in publishing Reid’s column and claimed it was a matter of public interest — specifically citing reader comments under the column when it was published online, including a number of “intemperate remarks” from a user traced back to a Strauss computer.


As the story notes, none of the claims have been proven in court.

The Daily News published an unbylined story on the lawsuit with the headline “Paper responds to Strauss lawsuit.” (Although, I usually just quote snippets of stories, what with copyright and all that, I’m going to reprint in full since it’s pretty much a press release. If that’s a problem, let me know.)

Lawyers for Glacier Media, the Kamloops Daily News and a retired city doctor have filed a response to a lawsuit from a Kamloops company alleging defamation and libel.

The legal documents were filed in B.C. Supreme Court Friday, in response to a lawsuit from Strauss Enterprises (the Strauss Herb Company), and Peter Strauss, Brian Kettle, Bill Carey, Don Schulz and Robert Jackman of the company.

Strauss’s lawsuit, filed earlier this year, names Glacier Media Inc., The Daily News, Dr. Russ Reid, editor Mel Rothenburger and publisher Tim Shoults.

Strauss claims it was defamed in a column authored by Reid, who wrote about Health Canada’s awarding of a natural product number to Strauss Heartdrops. The article was published in The Daily News last spring.

The Kamloops Daily News and the other defendants have filed a response in which they deny that the column has the meaning claimed by the plaintiffs, and some of the defendants have challenged Strauss’s advertisements.

It’s not known when the case will reach court.

Rothenburger, incidentally, was slated to retire Sept. 14, two days after the news of the lawsuit was made public.

Langley school district tells reporter to go fuck himself

November 13, 2011 1 comment

From the up-yours files:

In one of the most blatant attempt to suppress public information that I have ever seen here in B.C., the Langley school district told Langley Times reporter Dan Ferguson that it would cost $4,500 to obtain an ostensibly public 230-page report on the state of local schools.

The move to put the report out of the reach of the public is so explicit, the district might as well shouted “FOI this” while punching Dan in the face. And yet, the details behind the quote are even more expletive-inducing: $10/page for photocopying costs and $450 an hour for the staff time required to go over the document. Four hundred and fifty dollars. A fucking hour. Read Dan’s story on the FOI saga here.

Frankly, he’s much more even-handed than I would be.

Let’s do some math, shall we?

If this clerk were indeed paid $450 an hour for, say a 37.5 hour work week, he or she would make — drum roll please — $877,500 over the course of the year. Now, either the clerk has the best gig this side of BC Ferries, or the school district is using the fees to keep private public information.

On appeal, the district cut the cost of the photocopies to a slightly less ridiculous $1/page. But the $450/hour charge remains. Because that’s reasonable.

The story says that the newspaper is refusing to pay the charge. But it’s obviously also unable to. Bravo, Langley school district you’ve found a way to muzzle the press. Hurrah for democracy. Motherfuckers.

From the story:

The opposition critic for citizens’ services and open government, Nanaimo-North Cowichan MLA Doug Routley, warned that even if The Times were to pay the fee, there is no guarantee the information would be fully disclosed.

He cited several cases where public bodies in B.C. have produced a heavily edited version of requested documents.

While the FOI law is supposed to ensure transparency by public bodies, it contains loopholes that bureaucrats have learned to exploit by foot-dragging and charging huge fees, Routley said.

“It’s farcical and tragic all at once,” Routley commented. “It is ridiculous.”

(Of course, that’s what a member of the opposition would say.)

I’ve encouraged Dan to complain to the Office of the Information and Privacy Commissioner and the Vancouver Sun‘s intrepid (and always very helpful) investigative reporter Chad Skelton has done the same. If one lets something like this stand, then the whole notion of freedom of information is worthless. Four hundred fifty dollars an hour.

So fuck you Langley School Board and fuck you Rob McFarlane (the school board chair who, instead of pledging to get to the bottom of this shit, took the coward’s way out by telling the Times to ask for an abridged version of the report). Grow some gender-non-specific genitalia.

In the meantime, I hope a school board trustee leeks the report. Those trustees who are complicit or silent in their district’s gutless, authoritarian, cowardly and dickish move should be voted out this Saturday. Up yours.

Leave a motha-fuckin’ comment.

Nanaimo Daily News goes on offensive

January 18, 2011 Comments off

While Mounties investigate whether the Nanaimo Daily News breached a publication ban by publishing the name of an accused in a recent court case, the paper is making a strong case in print that the cops are full of shit.

They’ve even got the lawyer for the outed criminal on their side:

An RCMP investigation of the Nanaimo Daily News for allegedly breaching a publication ban is a “tempest in a teapot” likely designed to protect the force’s image, a Nanaimo defence lawyer says.

Stephen Taylor said the ban was in place to protect his client’s right to a fair trial, and that neither he nor his client was concerned by the Daily News’ coverage of the case.

“Who’s the victim?” Taylor asked. “I mean, police investigate crime. Crime implies a victim. Who’s the victim? [My client] certainly isn’t complaining. So I think it’s hurt feelings; I don’t think the RCMP appreciates the way they’re portrayed.”


Nanaimo Daily News managing editor Cale Cowan also says that the article in question was lawyered before going to print. They say the publication ban clearly applies to the witnesses and victims in the case, not the accused.

In yesterday’s story, Cale said that police are investigating only because the original article — written by Danielle Bell and Derek Spalding — called into question the RCMP’s ability to protect confidential informants.

Nanaimo Daily News under investigation, says cops have “egg on their faces”

January 17, 2011 Comments off

Mounties are investigating whether the Nanaimo Daily News and reporters Danielle Bell and Derek Spalding breached a publication ban with a recent article. Here’s the release:

Nanaimo RCMP have initiated an investigation into a Breach of Publication Ban under Sec. 517 of Criminal Code. The investigation was initiated after discussion with Crown Counsel. This occurred after an article appeared in the Nanaimo Daily News, on January 14, 2011, titled, “Exposed police informants victims of violent attacks”.

A Publication Ban was requested by defense counsel during the Bail Hearing for Shane Long and was in place since January 10, 2011. The Ban, in regards to this matter, is based on the need to ensure the safety of the participants and witnesses in this matter.

Cpl. Elly YOUNG
Call Manager C Watch
Nanaimo RCMP Detachment

The Daily News didn’t name an informant, but rather one of those charged in a recent attack. Now the cops say there may have been a publication ban on his name, which seems strange to me, and apparently the folks at the NDN too. They’ve come back swinging at the cops.

Here’s a Nanaimo Daily News story about the investigation:

Cpl. Darren Lagan said there were discussions between Crown prosecutors and the RCMP about the story both before and after the story was published in print and online.

“I think ultimately the Crown and the police believe there was a breach of the publication ban,” said Lagan. “These are things that aren’t taken lightly.”

He said the investigation is now being handled by the Nanaimo RCMP serious crimes unit and advised speaking with Staff Sgt. Doug Chisolm today for more information on how police will proceed.

Lagan also pointed out that there were discussions between the RCMP and the Daily News before the story ran outlining concerns of the police. Managing editor Cale Cowan said that Chisolm emphasized the concern over the safety of the informants the day before the story ran.


That story includes the following defense by NDN managing editor Cale Cowan:

“We haven’t breached any publication ban,” said Cowan. “Any information we have, we obtained through our own sources, which are clearly identified in the story.

“We stand by our story because it’s true. We believe the only reason the police have launched this investigation is because they have egg on their faces and they are trying to deflect criticism.”

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