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CIVIL PROCEDURE - Costs - Unproved allegations of fraud

Tuesday, July 03, 2018 @ 8:35 AM  

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Appeal by the plaintiff, Kent, from a costs award payable by the defendants, Martin, and various corporate media entities. The plaintiff was a former journalist who earned an international reputation during the Iraq War. He subsequently entered politics for the Alberta Progressive Conservative Party. During the 2008 provincial election campaign, Martin, a regular columnist for Alberta and national newspapers, wrote an article described as a devastating attack against the plaintiff. The article suggested that the plaintiff was politically naïve, arrogant, doomed to be ineffective, with an overall tone that was harshly critical. The trial judge found that Martin's testimony regarding the article was unreliable, and the media defendants' explanation for refusing to publish a rebuttal penned by the plaintiff was unreasonable. The trial judge found that the article contained several defamatory statements unsupported by any reliable source. Some of the statements were exaggerations. Some of the statements were untrue. No malice was proven. The plaintiff was awarded damages totaling $200,000 and costs of $250,000. The plaintiff appealed the costs award.

HELD: Appeal allowed in part. The trial judge erred in imposing a costs penalty for failure to prove an allegation that the defendants engaged in fraudulent concealment of records. In their initial affidavit of records, the defendants failed to disclose confidential emails in their possession that had been critical of the plaintiff's conduct during the campaign. The supplemental affidavit substantially redacted the emails and suggested they were freshly located in the course of reviewing file materials. The trial judge characterized the emails as highly relevant and material to the litigation, their redaction as inappropriate, and their late disclosure as inappropriate. The trial judge found the delay in asserting privilege was deficient and unjustified. The trial judge's factual determinations supported a finding of fraudulent concealment. The plaintiff was entitled to recover costs denied for allegations the trial judge erroneously found to be unproven. The plaintiff was awarded in additional $200,000 in costs.

Kent v. Martin, [2018] A.J. No. 673, Alberta Court of Appeal, P.W.L. Martin, F.F. Slatter and M.G. Crighton JJ.A., May 25, 2018. Digest No. TLD-July22018003