Court Allows Conspiracy Claim

Dishing “dirt” to the national media about her client’s election campaign has added lawyer Kristine Robidoux, Q.C. as a defendant to an $8 million conspiracy and defamation lawsuit, following a ruling by a Calgary Court.

Also joined as new defendants in Kent v. Martin, National Post et al are ten “John Does”, described in the amended claim as individuals whose identities are not yet known but who are all believed to be “senior members of the Progressive Conservative Party of Alberta.”

Robidoux served as this former candidate’s Legal Counsel and Official Agent in the 2008 Alberta election. At the invitation of Premier Ed Stelmach, I ran for his governing PC party in my home constituency of Calgary Currie.

But when I campaigned for an end to the party’s rampant patronage practices, and suggested refinements to the Premier’s ill-fated energy royalty review, I was attacked by anonymous “party insiders” in an article written by Don Martin, who had never met nor spoken to me.

During Martin’s examination for discovery in July of 2009, he disclosed his unnamed sources as Robidoux and two other prominent PC party backroom operators, Rod Love and Alan Hallman.

Martin admits long standing relationships with all three, according to documents filed with the Court. In print, Martin has boasted of benefiting from a conflict of interest with Love. Hallman had been fired from my campaign for proposing inducements to a rival nominee to withdraw from the race for the PC candidacy in our riding.

The Court’s ruling on Robidoux and the Does follows a hearing on February 10th.  

At that hearing, my lawyers argued that I should be able to use information revealed in discovery, protected by the implied rule of confidentiality, to support joining the new defendants to the lawsuit, which has been in progress for two and a half years.

We also sought leave to report Robidoux to her profession’s regulator, the Law Society of Alberta.

In reaching a decision, the Court had to determine whether my applications met the test of “competing values,” specifically whether our application for leave represents a public interest of greater weight than the confidentiality afforded witnesses in discovery.

Justice Dallas K. Miller writes in his decision, released Thursday May 12th that:

“…having found that Arthur Kent has met the test, his application to amend his Amended Statement of Claim and add Robidoux and others as defendants is hereby allowed.”

The ruling also grants leave to report Robdioux to the Law Society. At issue are alleged breaches of some 23 provisions of the body’s Code of Conduct.

Justice Miller states in his ruling: 

“I note that Don Martin freely chose not to protect his journalist source in Robidoux. It turns out, that if what is alleged by Arthur Kent is true, his own lawyer appears to have breached solicitor-client privilege, for which she was not protected as a source by the Defendant.

“Arthur Kent, who is now in possession of this rather damning information, seeks not to use it for an extraneous purpose but rather to advance his original claim in which the discovery took place.

“It is true that the protection afforded by the implied undertaking will not be easily set aside, but arguments advanced on behalf of Robidoux, in my view, are not sufficient to fetter the court’s discretion under Rule 3.74. To say that information that is disclosed by a defendant at a pre-trial discovery cannot be used to add parties and amend pleadings in that same action is simply wrong.”

With reference to case law established by the Supreme Court of Canada, Justice Miller continued:

“In my view, Arthur Kent has met the requisite test in Juman v. Doucette and has demonstrated to the court that there is a public interest of greater weight. In any case, information sought to be used by Arthur Kent involves “the same or similar parties” and “the same or similar issues”. There is really no prejudice to the original examinee and therefore leave is granted.”

Justice Miller found that Robidoux’s status was beyond doubt. He wrote:

“It is clear that Robidoux acted as Arthur Kent’s lawyer during his election campaign. The evidence reveals that she virtually begged to be on his campaign team and readily agreed to be his counsel and official agent under the Election Act.

“This required the services of a lawyer who was registered to practice law in Alberta and was able to provide legal counsel and advice to the candidate, campaign manager and others. This is a task that Robidoux appears to have taken on with enthusiasm. As part of her duties she signed Arthur Kent’s official nomination papers the day after the publication of Don Martin’s impugned article.”

This section of the ruling stands in stark contrast to a written submission made by Robidoux’s lawyer, David Pick, to a different judge last year. That hearing resulted in my first attempt to sue Robidoux being dismissed for breaching discovery confidentiality. Pick’s submission to Justice Paul Belzil stated:

“…should the Robidoux action continue we will be filing a Statement of Defence which denies that Robidoux was Kent’s “legal counsel” for purposes of his campaign with the attendant obligations and fiduciary duties he alleges.”

In setting out his reasons for last week’s ruling, Justice Miller states:

“There is a price that needs to be paid in order for a higher public interest to be protected. In this case there is no prejudice to the original defendants. Robidoux may very well face some sanction for her actions, but so does every lawyer if they are found to breach solicitor-client privilege.”

The ruling cites a decision of the Saskatchewan Court of Appeal in Law Society of Saskatchewan v. Robertson Stromberg:

“As a matter of public policy the Law Society, in conducting an investigation in the affairs of a solicitor, should be entitled to override any privilege claim for the public good. In my view, the public interest in the ethical practice of law outweighs any solicitor-client privilege. Lawyers who are being investigated should not be entitled to raise claims of privilege as a ground to refuse to cooperate in Law Society proceedings.”

“Accordingly,” writes Justice Miller, “I see no reason whatsoever for Arthur Kent not to be relieved of his obligation, and I grant him relief from the implied undertaking rule in order to report Robidoux to the Law Society of Alberta.”

Three months ago, at the February 10th hearing before Justice Miller in the Court of Queen’s Bench, my lawyer Michael Bates argued the merits of our application. Bates told the Court:

“In my respectful submission, as a barrister and solicitor, when I swear the oath to be that office, I give up voluntarily any right or entitlement to be a confidential source to the media about information belonging to my client.

“I don’t get to tell confidential information belonging to my client unless they say so, and I certainly don’t get to tell, and ask a journalist to keep my fingerprints off it, and then somehow expect that, when I voluntarily identify myself in a discovery, that the implied undertaking rule, which is designed to foster the search for the truth, would get in the way of the Law Society of Alberta being able to examine what I did and decide whether it was appropriate.

Bates continued:  “My Lord, in the materials I’ve filed and in about 15 other Supreme Court of Canada cases that I’ve cited but not reproduced, solicitor-client privilege and solicitor-client confidentiality is referred to as a constitutional and civil right of supreme importance in Canadian law.

“The public interest, in looking at this situation and saying, What does the public need to better protect, Don Martin’s ability to have a lawyer give dirt about their client, so he can write some kind of opinion piece, I mean, he didn’t break a story of national importance here, he wrote a smear about Mr. Kent.”

Balanced against that, Bates said, was the need to protect a candidate’s right and ability to entrust his confidential campaign information with his lawyer.

“That’s the interest that needs to be protected, My Lord. And I submit it couldn’t be any more clear.”

With Justice Miller’s decision now released, the updated and amended Statement of Claim was filed with the Court on Friday the 13th of May, 2011.

The claim includes the following excerpts:

     Action No. 0801-08414

     Arthur Kent v. Don Martin, The National Post Company, Canwest 
     Publishing Inc., National Post Holdings Ltd., Canwest Mediaworks, 
     Kristine Robidoux, Q.C.  and Does 1 – 10

The Conspiracy by Robidoux and Does 1 – 10

14.       Early in the election campaign, tensions arose between Kent and his supporters, on one hand, and members of Alberta Premier Stelmach's office and senior members of the Alberta Progressive Conservative Party provincial campaign team on the other. At issue were concerns expressed by Kent, and many of Kent's constituents, that the Premier's controversial new oil and gas royalty regime had been instituted without due public consultation, and that the Alberta Progressive Conservative government was generally uncommunicative with the public, whilst being compromised by a culture of patronage.

15.       Robidoux was one of a small minority of members of Kent's Calgary Currie campaign team who consistently urged Kent to submit without question to the Stelmach leadership group's policies, platforms promises and practices, and to avoid discussing public unease with those policies, promises and practices with the news media.  Kent consistently took the view that as a candidate he should be able to freely express his views, consistent with his understanding of representative democracy.

16.       Some time prior to February 12, 2008, at times and places known to Robidoux and Does 1 – 10, but not to Kent, Robidoux and Does 1 – 10 entered into a conspiracy, the predominant purpose of which was to damage Kent’s reputation and campaign such that Kent would not be elected to the Alberta Legislature, where he would have had an opportunity to give voice to the concerns set out in paragraph 14 above, which challenged the vested interests of the conspirators.

17.       Some time prior to February 12, 2008, at times and places known to Robidoux and Does 1 – 10, but not to Kent, and in furtherance of the conspiracy between herself and Does 1 – 10, Robidoux engaged in the following intentional acts:

a) Robidoux actively and voluntarily forwarded untrue and damaging information about Kent and his campaign to the news media, and specifically to Martin, creating a false and distorted depiction of circumstances within Kent's campaign team; and

b) Robidoux disclosed confidential information about Kent and his campaign to third parties, including to the news media, and specifically to Martin.

18.       Does 1 – 10 were aware of, encouraged and acquiesced in these deliberate acts by Robidoux.  These deliberate acts of Robidoux, to the knowledge of Robidoux and Does 1 – 10, were unlawful and in flagrant violation of Robidoux’s fiduciary duties to Kent by virtue of her position as his Legal Counsel and Official Agent, and in flagrant violation of Robidoux’s obligations to Kent as his Legal Counsel.  Robidoux and Does 1 – 10 knew or ought to have known that the unlawful actions and communications of Robidoux would cause damage to the reputation of Kent and to his campaign for election in Calgary Currie.

19.       In addition to the intentional acts of Robidoux outlined above, Robidoux and Does 1 – 10, between November 2007 and March 3, 2008, at times and places known to Robidoux and Does 1 – 10, but not to Kent, engaged in the following intentional acts in furtherance of the conspiracy:

a) Robidoux and Does 1 – 10 maliciously caused supporters and members of the Progressive Conservative Party of Alberta to withdraw or limit financial or other support for the Kent campaign;

b) Robidoux and Does 1 – 10 maliciously caused Progressive Conservative Party of Alberta members of the legislature not to support the Kent campaign;

c) Robidoux and Does 1 – 10 maliciously provided inaccurate or incomplete information to Kent or the Kent campaign;

d) Robidoux and Does 1 – 10 maliciously made offensive, untrue and/or defamatory statements about Kent and the Kent campaign to members of the public and the news media;

e) Robidoux and Does 1 – 10 maliciously encouraged or persuaded members of the Kent campaign team to limit or cease their work for the Kent campaign.

f) Robidoux and Does 1 - 10 maliciously contacted and arranged meetings with volunteer members of the Kent campaign team without Kent’s knowledge in an attempt to turn those volunteers against Kent and the legitimate objectives of the Kent campaign;

g) Robidoux and Does 1 – 10 established and maintained a secretive “back-channel” of telephone and email communications directed at members of the former Calgary Currie PC association who served on Kent’s campaign team, with the objective of undermining support for Kent; and

h) Robidoux and Does 1 – 10 established and maintained clandestine communications with members of the media, without Kent’s knowledge, in order to block Kent’s attempt to refute the false and defamatory claims made against him.

34.       In furtherance of the conspiracy between Robidoux and Does 1 – 10, after the publication of the Article, Robidoux engaged in the following intentional acts in furtherance of the conspiracy:

a) Robidoux withheld from Kent the fact that she had forwarded to Martin untrue and damaging information and disclosed confidential information about Kent and his campaign;

b) Robidoux misled Kent about the source of the information that had been provided to Martin and did not disclose to Kent that Robidoux had been the source for some or all of the information published in the Article;

c) Robidoux failed to inform Kent of information that she received concerning the editorial deliberations of The National Post Company and/or Canwest Publishing Inc. as to whether they would publish a response from Kent to the Martin Article; and

d) Robidoux continued to act as both the Legal Counsel and Official Agent for Kent, as well as the Quadrant Chair reporting to several of the Alberta Progressive Conservative Party's most senior executives and its campaign manager, despite being aware that Does 1 — 10 were, along with Robidoux, were actively engaged in attempts to undermine Kent and his campaign.
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