Nenshi lawsuit: Defamation lawyer says awards higher than $250,000 are rare

Council discusses $6-million suit behind closed doors

By Jason Markusuff
Calgary Herald, November 20, 2013

Cal Wenzel may be suing Calgary’s mayor for $6 million, but a ruling anywhere near that high would be unprecedented in Canadian defamation law.

The defamation lawsuit against Naheed Nenshi was filed last week by the Shane Homes CEO.

A jury’s award of $3 million to a fired charter pilot broke records in 2008, and all of the richest awards over the past 20 years have been around half or less of that amount, according to a list compiled by law firm Borden Ladner Gervais.

“The amount claimed is just a typewriter. You just type zeros in,” said Julian Porter, one of Canada’s foremost lawyers on defamation matters.

“Realistically, if you got more than $250,000 awarded for (a single) libel plus some costs, you’re in the high stratosphere,” he added. “You’re in the top 10 per cent.”

On Tuesday, council held a closed-door briefing on legal and cost implications in wake of Wenzel’s lawsuit. The suburban home builder is seeking $6 million in damages to his reputation after Nenshi said publicly several times that the builder admitted to breaking election finance laws in a surreptitiously videotaped political speech, and that the mayor compared the tape to a scene from the Godfather movie.

The lawsuit alleges Nenshi uttered “malicious falsehoods” against the builder for political gain.

The mayor has accused Wenzel of seeking “outrageous damages,” and vowed Monday to defend himself “vigorously.”

Nenshi, who has not yet been served with the lawsuit, confirmed Tuesday that council didn’t discuss the particulars of the defamation claim during its private legal briefing, but did discuss aspects of council’s indemnification policy, which council members couldn’t discuss previously.

The policy does allow the city to cover council members for legal rulings against them while they’re performing their elected duties. What’s unclear is whether Nenshi’s comments constitute carrying out duties or outside activities.

Council does appear to have some discretion over whether to cover legal fees in certain areas, Nenshi said earlier this week. But after the briefing, councillors were tight-lipped about their thoughts on covering lawyer costs.

“When we cross that bridge, ask me the question and I’ll give you the answer,” Coun. Andre Chabot told reporters. “We’re not there yet. There’s nothing before us.”

Nenshi had retained a lawyer before Wenzel filed the lawsuit last week, because the builder had previously sent the mayor a legal letter, asking him to formally apologize.

The return letter from Nenshi’s lawyer declined the apology request, and laid out several possible defences against Wenzel’s defamation claims: including fair comment and justification.

Porter, who has defended several Ontario politicians in defamation lawsuits, declined Tuesday to discuss the Wenzel case directly.

But he did say that a 2008 Supreme Court ruling has greatly broadened the ability to use a fair comment defence.

“You could be stubborn. you could be pigheaded, you could be wacky, and it would be all right unless you maliciously said something you knew not to be true,” Porter said.

But with fair comment, a defendant has to establish that his or her underlying facts are true, said David Crerar, a defamation law specialist with Borden Ladner Gervais’ Vancouver office.

“So if you’re shooting from the hip and you can’t actually back up your comment as being based on fact, then that defence can falter,” he said.

Proving that allegedly defamatory comments are in fact justified and true can also be difficult, both lawyers said.

Crerar also said that few defamation cases are black and white.

“You’re going to be hard-pressed to find a slam-dunk facts scenario where everyone says that’s going to apply.”