Saturday, Sep 17 2011
Ex-newspaperman Don Martin and the corporate defendants in Kent v. Martin, National Post et al have been sued by their fellow defendant Alan Hallman, an Alberta PC party “insider” and backroom activist.
Hallman’s claim against the “Third Party Defendants” blames Martin, now a CTV News host, and Martin’s former employers at the National Post and Calgary Herald, for Hallman’s recent addition as a defendant to my $8 million conspiracy-to-defame action.
With the Third Party Claim, Hallman seeks to be covered by the media defendants for “any amount which the Plaintiff (Kent) may recover against Hallman.”
The claim was filed Sept. 7th at Calgary’s Court of Queen’s Bench, where it forms part of the public record of these actions.
The lawsuits are the result of an article by Martin published in the midst of my candidacy in the 2008 Alberta election. Still now, the article is re-published each day in the news pages of the nationalpost.com and calgaryherald.com websites.
Alan Hallman’s claim, which is a subordinate action to the main lawsuit, states that: “Hallman provided a certain Opinion to the Third Party Defendant,” and that:
“Hallman’s participation in that discussion with the Third Party Defendant, Don Martin, was contingent upon an express or implied representation by the Third Party Defendants that the discussion, or discussions, would be privileged or confidential.
“Hallman relied upon that representation of privilege and confidentiality, in providing the Opinion to the Third Party Defendant, Don Martin.”
In documents filed with the court in this litigation, Martin states that Hallman has been one of his regular sources over the years, and was routinely afforded anonymity by Martin.
Hallman’s claim continues:
“The Third Party Defendants owed Hallman a duty of care to maintain the confidentiality and privilege of his discussions with the Defendant, Don Martin, which discussions led to Hallman providing the Opinion to the Defendant, Don Martin.”
Hallman’s claim alleges that Martin and his former employers “breached their legal obligations to Hallman” by “failing to maintain privilege over, or alternatively, to keep confidential, Hallman’s name as a source the Third Party Defendants consulted in preparing the Article.”
The claim cites as additional breaches: “discussing the particulars of telephone discussions” between Hallman and Martin, and “failing to provide Hallman with a reasonable opportunity” to review the draft article “and provide any comments or clarifications in respect thereof” prior to publication.
The manner in which Hallman’s cloak of anonymity was lifted is contained in the court record.
Filed documents show that Martin and the newspapers’ lawyer, Scott Watson of the law firm Parlee McLaws, voluntarily produced two email documents consisting of six pages of text at Martin’s examination for discovery on July 14, 2009.
Entered as Exhibits D-1 and D-2, the email streams feature exchanges between Martin and Kristine Robidoux, Q.C., my campaign Legal Counsel and Official Agent in the 2008 Alberta election, who is also a defendant in this action.
In the D-1 stream, Martin asks Robidoux, Q.C. if there is “Any more dirt?” she can provide on my campaign.
Robidoux, Q.C. complies with false assertions.
In a subsequent email, Martin tells her: “Talked to Hallman and Love. They’ve never seen anything like this guy before…”
Under oath during his examination, Martin provided details of his communications with each of his article’s three anonymous sources: Robidoux, Hallman and Rod Love.
Like Hallman, Love is a well known Tory “insider.” Martin and his employers have published Martin’s boast of having benefited from, in Martin’s own words, a “conflict of interest” with Love. Martin describes Love as a “genius” in the practice of “advanced media manipulation.” (See 1 below.)
The decision by Martin, Watson, the corporate media defendants and Robidoux, Q.C. to reveal the source-rich D-1 and D-2 email streams was made before Martin’s examination took place, according to written and oral submissions to the court.
In other words, the decision to disclose the documents and their contents was made before Martin was asked by my lawyer who he had spoken to in preparing his article.
Martin’s editor-in-chief at the Calgary Herald, Lorne Motley, stated in an affidavit sworn March 12, 2010 that:
“On the morning of July 14, 2009, prior to the examination for discovery of Mr. Martin, the Defendants and the Confidential Source met to discuss the assurances that had been provided that the Confidential Source’s identity not be revealed. The Defendants and the Confidential Source agreed at that time that, for the limited purpose of the examination for discovery of Mr. Martin, the Email Correspondence, in its entirety, would be provided to the Plaintiff.”
Submissions to the court make clear that the source referred to is Kristine Robidoux, Q.C.
Watson, the media defendants’ lawyer, stated in a brief filed earlier this year that:
“The identity of the Confidential Source was revealed solely on the understanding that the Confidential Source’s identity would remain anonymous and be protected by the implied undertaking rule.” (See 2 below.)
However that rule of discovery confidentiality does not preclude the use of information gleaned from examinations to join new defendants to the same lawsuit.
In allowing me to add Robidoux, Q.C. and ten “John Doe” defendants to the Martin/National Post action, Justice Dallas Miller wrote in his decision of April 29, 2011:
“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.”
Justice Miller wrote:
“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.”
With the Miller ruling, Robidoux, Q.C. became a named defendant in Kent v. Martin, National Post et al. A subsequent ruling allowed me to rename four of the John Does as Roderick Love, Alan Hallman, Bruce Thorpe and Bill Smith.
Smith, currently the PC party’s president, was the PC’s vice-president in 2008. Along with Robidoux, Q.C., Smith was a co-recipient of the Exhibit D-2 stream of email messages. The document shows that Robidoux retained and resent the email stream to Martin in May of 2008, some three months after the article was published.
Martin states in transcripts filed with the court that the re-send of the D-2 emails came after he had learned that this lawsuit might be filed, and that Robidoux had sought to “keep her fingerprints off” the leaked document.
Hallman’s Third Party Claim against the media defendants comes at a time when further discord threatens to erupt among the parties.
Specifically, defendant Bill Smith and the Herald’s Lorne Motley appear to be on a collision course over another of the Calgary Herald’s leaks-gone-wrong from an anonymous Tory source.
At issue is an allegedly incomplete, “salted” or stacked PC party membership list that was provided to the Herald by a person or persons unnamed. In turn, the newspaper gave the list to Environics, the pollsters contracted by the Herald to measure voter preferences for today’s Alberta Tory leadership election.
Leadership candidate Rick Orman has demanded an investigation of the leak, branding the list “gerrymandered” or altered to favour a campaign team or teams as yet unknown.
PC president Smith acknowledged on the party’s website that the list leaked to the Herald doesn’t accurately reflect the party membership eligible to participate in the first round of voting today.
Lorne Motley of the Herald disagrees. He insists the list is accurate, and that the Herald stands by both the list and the poll based upon it.
The newspaper’s management is equally determined to declare its bias in the Tory leadership contest. In a lead editorial, the Herald advocates candidate Gary Mar as Alberta’s 14th Premier, replacing the hapless Ed Stelmach.
This could arguably be the kiss of death: the Herald officially endorsed Stelmach in the 2008 election, and ever since has tracked the fated premier’s blunders and ultimate downfall.
Coming soon to these pages… The ultimate hypocrisy: how two outed Tory sources are attacking this website for reporting the truth.
1. Transcript pages of Martin’s examination show that Martin granted “reflexive” anonymity to Love, which Martin states is “sort of an ongoing relationship with us.”
With regard to Hallman’s role in the article, Martin’s transcript states: “Again, it's the same understanding that I always have with Mr. Hallman, that it's not on the record.”
This would appear to be starkly at odds with the journalistic ethics, standards and practice directives of the National Post, the Calgary Herald and Canwest, as produced by the media defendants in this action.
Martin’s article was published with no comment from me or my supporters within our core campaign team.
Both the National Post and Calgary Herald refused to publish my response and persist in re-publishing the article on their websites under the ownership and management of Postmedia Network Inc., which purchased Canada’s largest newspaper chain after Canwest’s bankruptcy in 2010.
A separate $3 million lawsuit against Postmedia, CEO Paul Godfrey et al is ongoing.
2. Watson’s assertion that a source’s identity can somehow be revealed, then concealed again is at odds with the May, 2010 decision of the Supreme Court of Canada in R v. National Post (ironically, the same National Post represented by Watson in Kent v Martin et al.)
Writing for the majority, Justice Binnie states at paragraph 63 of the R v. National Post decision:
“In a test of balancing the public interest in disclosure versus the public interest in confidentiality neither the journalist nor the secret source "owns" the privilege.
“Thus where a secret source decides for whatever reason to cast aside the cloak of anonymity the public interest no longer "sedulously fosters" the continuation of the confidential relationship in preference to openness and the search for the truth.”