As the summer in the Comox Valley heats up, so does the Alan De Jersey et al. v. Mary Reynolds defamation case.

Our small community of Union Bay has once again made the Vancouver Sun on June 30th - this time on the front page - with the headlines of "District government settled pricey suit against citizen blogger".
Go to Union Bay News Now Blog for story at

http://unionbaynewsnow.blogspot.com/2011/07/ian-mulgrew-vancouver-sun-june-30-2011.html

The author of the article was veteran journalist Ian Mulgrew. Mulgrew has stalwart credentials having worked for the Sun as the legal affairs expert since 1987 and previously as the West Coast Bureau Chief at the Globe and Mail.

In case you missed it, Mulgrew's June 30th story announced the news that the newly elected Board of Trustees of the Union Bay Improvement District withdrew as one of the Plaintiffs of the B.C. Supreme Court defamation case against Landowner Mary Reynolds. The reason given was that according to the the legal firm Staples McDannold Stewart (the UBID law firm), UBID didn't not have the right to bring a suit in defamation against one of its ratepayers in the first place as demonstrated in the legal precedent Dixon v. the City of Powell River.

It was surprising to me that in the July 5th issue of The Comox Valley Record (" Union Bay war of words continues") reporter Scott Stanfield wrote, "De Jersey said he and the other plaintiffs sought advice from lawyers from the same firm that represented the city of Powell River. These lawyers indicated they had the right to sue Reynolds".

Anyone that looks at the Dixon v. Powell River case will note that there was no Counsel appearing on behalf of The Corporation of the City of Powell River. (See Attachment below entitled "Dixon v. Powell River"). If it is true that De Jersey and the other Plaintiffs sought advice from lawyers from the same firm that represented the Powell River, it would be a bit like consulting the captain of the "Titanic" on how to avoid hitting icebergs!

Ian Mulgrew's story in the Vancouver Sun ended with the news of an offer which Ms. Reynolds made to each of the remaining eight Plaintiffs if "they reimburse the district for its legal fees" to the tune of $16,000 (which represented one eighth of UBID's final legal bill of $128,000). Simply put: if each Plaintiff pays back his/her portion of the public monies spent so far to UBID (that should have never been spent), we can call it even and stop this shameless spending of public money.

Judging by a letter written by Solicitor Michael Galambos in a recent court Affidavit dated July 18, 2011, the eight remaining Plaintiffs have decided not to take the offer and so, will be proceeding with the lawsuit:

"We write to advise that Alan de Jersey, David Godfrey, Denis Royer, David McDowell, James Smith, Debora McMahon, Brenda Fisher and Gloria Royer have instructed us that they wish to proceed to trial on this matter..."

See Page Five on Union Bay News Now Blog for letter in its entirety -
http://unionbaynewsnow.blogspot.com/2011/07/affidavit-demand-for-particulars-july.html

Another bit of news is that all court documents previously requested to be supplied by the Plaintiffs now have a deadline for submission of August 15th at 4PM. There is a long list of these specifically requested documents that can be viewed in the Application for Particulars and Disclosure. Here are just a few:

-"All emails sent or received by any of the plaintiffs in respect of this matter and in respect of Mary Reynolds"

and

-"All documents requested at the examinations for discovery of Deborah McMahon, Brenda Fisher and Alan De Jersey, including the following:
...all emails to and from Ms. Fisher's personal email account dealing with this litigation; All emails to and from Ms. Fisher's UBID administrator account dealing with this litigation...Any UBID policy indicating that the water supply to UBID residences may be shut off without notice to residents...a record of all payments made to the defendant Mr. Royer or his company by UBID...Any notes or record of in camera meetings..."

See weblink on Union Bay News Now Blog for Order for Particulars and Disclosure as follows:

http://unionbaynewsnow.blogspot.com/2011/07/notice-of-application-order-for.html

One other noteworthy deadline given as August 10th at 4PM is to provide the particulars of the statements which are alleged to be defamatory. In other words, the Plaintiffs have to supply the words from Ms. Reynolds' blog which they believe to be defamatory so that those statements can be identified to determine whether they have caused harm to the reputations of the Plaintiffs.

So just what is the legal meaning of this word "particular"?

A very general definition was stated by Justice Ferguson of the Ontario Court of Appeal (in Fairbairn v. Sage) as follows:

"Particulars are ordered for several purposes: to define the issues, to enable the parties to prepare for trial and to facilitate the hearing."

A more detailed definition of the word particular was stated by Justice McNair of the Federal Court (in CAT Productions Ltd. v. Macedo) as follows:

"Particulars are ordered more freely than in earlier times for the days of trial by ambush are now gone. Courts today are insistent that pleadings define with clarity and precision the issues to be tried. Where general allegations are made which in earlier times might escape scrutiny, in these days particulars will usually be ordered. Courts have drawn a distinction between particulars required before pleading and those required before trial... As to particulars before trial, a party is generally entitled to any particulars required to properly prepare his case for trial."

Without particulars, Ms. Reynolds would be unable to defend herself without knowing from the Plaintiffs what exact wording they believe to be false or malicious. Just listing long excerpts of her blog is not fulfilling the requirement of providing particulars.

Former UBID Chair and current UBID Trustee Alan De Jersey referred to one example of alleged defamation from Ms. Reynolds' blog in the Comox Valley Record article entitled "Union Bay war of words continues" by Scott Stanfield on July 5, 2011 as follows:

"You don't talk about an administrator being so overweight that her thighs chafe together as being freedom of speech...."

I assume that Mr. De Jersey is referring to this post of Ms. Reynolds which appeared on her blog on December 6, 2009 which is listed on Page 14 of the Civil Claim as follows:

"A sustainable community. Having facilities within walking distance. Cut back on the use of vehicles. Why does Brenda Fisher drive to work when it's literally across the street? Does Brenda get chafed thighs if she walks 200 feet?"

See Page 14 of the Civil Claim at http://unionbaynewsnow.blogspot.com/2011/03/notice-of-civil-claim.html

I don't see anything in this posting stating that the Administrator is overweight -- Has Mr. De Jersey essentially thrown the Administrator "under the bus" by his misquote of Ms. Reynolds' blog? And after all, I imagine a lot more people read Mr. De Jersey's derogatory misquote about the Administrator than ever saw Ms. Reynolds' blog (which was about sustainability and not about being fat)!

Once the exact wording of this particular is given over to the Court, then it will be up to Chief Justice Bauman to determine whether the comment was untrue or malicious.

Likewise, Chief Justice Bauman will make the determination whether Mr. de Jersey was defamed by Ms. Reynolds' cartoon of him pictured as Barney Fife, whether James Smith is a windbag, or if Ms. Reynolds was malicious by asking then Trustee Deb Prowse (now Mrs. Brian McMahon) whether she was sleeping with Mr. McMahon while she was on the head of the UBID Water Committee. Note: I guess Ms. Reynolds was one of the few people in the community that didn't know that Ms. Prowse was then living with Mr. McMahon!

The halcyon days of summer may be here. But the news of this high profile defamation case in the Supreme Court of British Columbia will be heating up in the next month, undoubtedly bringing more newspaper headlines.