Legalese

Canwest’s suit claims a commercial violation of trade-mark, as if a political parody is the same thing as a Nike knock-off.

Rather than being concerned about trade-marks, the charges read like a political attack. Read the original writ to understand what is really going on. Canwest asserts the defendants have been involved in “anti-Israeli and pro-Palestinian media activities,” and have written or spoken “harshly critical of the State of Israel and of the plaintiff and anyone who publishes articles or views which the defendants perceive to be contrary to their own views”.

What any of this has to do with trade-marks is a mystery.

Canwest demands a sweeping variety of remedies including an injunction restraining the defendants from “publishing injurious falsehoods by way of newspapers or other publications, on the internet or otherwise”. Imagine the implications for the Charter right to free speech if wealthy corporations can shut down debate on any contentious issue with such a lawsuit.

As the civil case proceeded to the examination for discovery in the spring of 2008, Canwest’s lawyer’s questions took a disturbing turn. With more than a whiff of McCarthyesque witch hunting, Canwest’s lawyer asked Mordecai:
• To produce any documentation, correspondence, or internal emails of Canpalnet that relate to the organization and presentation of the forum in June 6, 2007;

• Provide me with the name of anybody you have spoken to about the case apart from public interviews… What have you spoken to them about?

• To provide all of the documents relating to the Seriously Free Speech Committee, any minutes of any meeting, communications, agendas, attendances as well as membership list, their addresses and contact numbers.

All that is missing is: “Are you now, or have you ever been a member of…?”

Resources

Read Justice Myers’ decision denying appeal of procedural ruling that Gordon cannot ask for documents relating to Canwest’s bias, centralised editorial and striking portions of defence relating to Canwest’s internal policies. Note that Justice Myers refers to the parody as a “mock” edition not a “fake” as Canwest characterises it. He also makes no reference to Master Donaldson’s comment that “freedom of expression is not a defence to copyright or trademark infringement” which even Canwest admitted in court were “obiter dicta” — outside of what Master Donaldson was asked to rule on.

Download the notice of appeal of procedural ruling that Gordon cannot ask for documents relating to Canwest’s bias, centralised editorial and striking portions of defence relating Canwest’s internal policies.

Download Master Donaldson procedural ruling that Gordon cannot ask for documents relating to Canwest’s bias, centralised editorial and striking portions of defence relating Canwest’s internal policies.

Read the original CanWest writ online or download it as a pdf.

Download and read Canwest’s fourth re-write of their writ of summons which eliminates previous charges of conspiracy and injurious falsehood as well as dropping the printer from the lawsuit.

Read Gordon’s originial statement of defence online or download it as a pdf.

Read Carel’s statement of defence online or download it as a pdf.

Read Mordecai’s statement of defence online or download it as a pdf.

Mordecai’s and Carel’s statement of defence refers to numbered paragraphs in the original writ so you will want to download the writ as well.

Read some of the McCarthy-esque questions that CanWest’s lawyer asked Mordecai here.

If you have problems downloading the files, please turn off your pop-up blocker for this site.

GORDON MURRAY STATEMENT OF DEFENCE

1. The plaintiff is a media corporation that owns the Vancouver Sun newspaper published in Vancouver, British Columbia. The plaintiff corporation is part of the Canwest group of companies, which describes itself as Canada’s leading international media company with diversified holdings that include conventional television networks Global Television and the entertainment channel EJ and 26 specialty networks, as well as several online properties under the canada.com network.

2. Canwest is Canada’s largest newspaper chain reaching 4.8 million readers on a weekly basis. It owns and operates the following newspapers, which together comprise approximately 84% of the daily paid newspaper circulation in British Columbia: the Vancouver Sun, the Vancouver Province; the Victoria Times-Colonist; the Vancouver Courier; the New Westminster Record; Surrey New; Richmond News; North Shore News; the Abbotsford/Mission Times; Burnaby Now; Chilliwack Times; Coquitlam Now; Delta Optimist; Langley Advance; Maple Ridge/Pitt Meadows Times; Nanaimo Daily News; Nanaimo Harbour City Star; Port Alberni Times; Cowichan Valley and Duncan’s Cowichan Valley Times; Parksville/Qualicum Beach Oceanside Star; Courtney/Comox Comox Valley Echo; Campbell River’s Courier Islander; Tofino/Ucluelet Westerly; Port Alberni Pennyworth; Alberni Valley Times; and the National Post. Canwest describes itself as the dominant news organization in British Columbia.

3. Canwest newspapers and other Canwest media properties have a strong pro-Israel bias, particularly in their coverage of the Israeli occupation of the West Bank and the Gaza Strip. In Canwest publications, Israelis are usually portrayed as innocent victims and Palestinians as inhuman terrorists. Israeli casualties and deaths are disproportionately reported and sympathetically described while Palestinian deaths are relatively underreported and unsympathetically described. Canwest takes the position that Israel is blameless and described the Palestinian people in one editorial as a single collective suicide bomber.

4. The bias exhibited by individual Canwest papers and media properties is the product of a centralized editorial policy that emanates from Canwest’s headquarters and its senior directors and principal shareholders. This centralized policy took hold at the Vancouver Sun shortly after Canwest purchased the print media and newspaper holdings of Southam Inc. in November of 2000. One express purpose of the centralized editorial policy is to insulate Israel from criticism for its violations of international law and to influence Canadian public opinion and foreign policy. The editorial policy limits and restricts the freedom of Canwest reporters and editors, including those employed by the Vancouver Sun, to publish facts and opinions after their own fashion. Canwest enforces its editorial policy by threatening to terminate the employment of newspaper reporters and editors who are publicly critical of the policy, which is a threat carrying significant weight given the extent of Canwest newspaper ownership.

5. The defendant Gordon Murray admits to publishing the parody of the Vancouver Sun (the “Parody”) that is the subject of this lawsuit. The Parody was dated “Occupation day, 2007″. In place of the usual “Seriously Westcoast since 1912″ appears “Seriously Zionist since 2001″, which was the first full year of Canwest ownership of the Vancouver Sun. The Parody’s lead article is written by “P. Rupa Ghanda” and is entitled “Celebrating 40 years of Civilizing The West Bank”. Another article by “Cyn Sorsheep” is entitled “Study Shows Truth Biased Against Israel”. In these and other articles, including mock ads, there are criticisms of Isreali policies in the Occupied Palestinian Territories and a critique of Canwest’s news bias. The Parody expressly stated that it was published by the Palestinian Media Collective.

6. The Parody was intended to criticize and satirize the Vancouver Sun and the entire Canwest media group, raise awareness about the Canwest bias, and foster debate about Canada’s role in the Middle East. The Parody calls attention to the hypocrisy of the Canwest media group, which uses courts and media to vigorously promote its right to freedom of the press, while using its ownership rights to limit public debate and chill its reporters into silent submission. The primary purpose of the Parody was not to cause economic harm to the plaintiff; its purpose was to satirize the bias of the plaintiff by means of its own sanctimonious public image.

7. The defendant, Gordon Murray, says that his use of the rhetorical mode of parodic imitation offered a unique opportunity for expression. The Parody mocked Canwest by revealing Canwest’s use of concentrated media power behind the Vancouver Sun’s mask of public-spirited respectability. The defendant says that his use of parody and satire conveyed expressive content that would not be available through other rhetorical modes.

8. The defendant, Gordon Murray, says that the Parody, considered as a whole, cannot be confused with the Vancouver Sun. The Parody can be distinguished by its editorial content, the names of the reporters, the number of pages of the paper, the quality of reproduction, the overt satiric style, a bald statement to the effect that Canwest is not the publisher, and so forth. Any reasonable person can see the Parody for what it is. The notion that the Parody constituted a violation of the Trade-marks Act or the tort of passing-off is contrived and strains credulity.

9. There is nothing false, misleading or dishonest about the Parody, It contains true facts and honestly held opinion regarding the editorial policies of Canwest and the Vancouver Sun, as well as valid opinion regarding Israel and its treatment of the Palestinian people. The defendant says that the common law and statutory torts relied on by the plaintiff do not abridge his right to publish the Parody or to give interviews, and must be interpreted to comport with his right to free expression as guaranteed by s.2(b) of the Canadian Charter of Rights and Freedoms.

10. In the alternative, the defendant says that if s.8 of the Trade-marks Act operates to prohibit him from publishing the Parody, then the section is inconsistent with his right to free expression and is of no force and effect pursuant to s.52 of the Canadian Chatter of Rights and Freedoms. The defendant says that non-parodic modes of expression do not carry the same expressive content or rhetorical force as parody, and that restrictions on parodic expressions are restrictions of expressive content, and are not minimally impairing as legislated exemptions for parodic expression are found in trademarks legislation in many other parts of the world.

11. The defendant denies that Canwest suffered any loss of circulation or revenue as a result of the parody. The defendant says that this lawsuit is not intended to compensate Canwest for any losses. This lawsuit is intended to restrict publication and circulation of the Parody, to inflict economic and emotional harm on the defendants for the pro-Palestinian activities listed in paragraphs 10, 11 and 12 of the Statement of Claim, and to generally deter publication of the opinions expressed by the Parody. This purpose and effect of this lawsuit are inimical to the common law and to the Charter of Rights and Freedoms. This lawsuit represents a perversion of civil justice and an abuse of process and is contrary to Rule 19(24) of the Supreme Court Rules.

12. The defendant, Gordon Murray, confirms that the defendant, Mordecai Briemberg had nothing to do with the publication of the Parody.

13. The balance of the facts alleged in the Statement of Claim are denied in their entirety and the plaintiff is put to the strict proof thereof.

14. WHEREFORE the defendant, Gordon Murray, seeks an order that the plaintiff’s claim against him be dismissed with costs awarded against the plaintiff, and seeks an order for special costs of a punitive and exhortatory nature to reflect the status of this suit as a Strategic Lawsuit Against Public Participation.

Dated at Vancouver this 14th day of August, 200

This Statement of Defence is filed by the law firm of Gratl & Company, Barristers and Solicitors, whose place of business and address for delivery and service is 660-220 Cambie Street, Vancouver, British Columbia V6B 2M9

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STATEMENT OF DEFENCE OF CAREL MOISEIWITSCH

1. The Defendant Carel Moiseiwitsch denies the facts set out in the Amended Statement of Claim, except those expressly admitted herein, and puts the Plaintiff to the express proof thereof.

2. This Defendant admits the facts set out in paragraphs 2, 4A and 5A of the Amended Statement of Claim.

3. This Defendant has no knowledge of the facts set out in paragraphs 1, 3, 4, 5 and 6 of the Amended Statement of Claim.

4. This Defendant says that the facts set out in paragraphs 10, 11 and 12 of the Amended Statement of Claim are wholly irrelevant to the Plaintiff’s claim and are pleaded contrary to Rule 19(24) of the Rules of Court, as they disclose no reasonable claim, are unnecessary, scandalous, frivolous, vexatious, prejudicial and embarrassing and constitute an abuse of the process of the court.

5. In answer to paragraphs 13, 14, 15 and 16 of the Amended Statement of Claim, this Defendant denies entering into a conspiracy with anyone to engage in unlawful conduct with the intent to injure the Plaintiff.

6. In answer to paragraph 20 of the Amended Statement of Claim, this Defendant denies that the Plaintiff has suffered loss and damage as a result of any of the acts complained of and puts the Plaintiff to the strict proof thereof.

7. In answer to paragraphs 21 and 22 of the Amended Statement of Claim, this Defendant denies that she has committed any acts that constitute passing off, injurious falsehood or infringement of section 7 of the Trade-marks Act, R.S.C. 1985, c. T-13.

8. In further answer to paragraph 22 of the Amended Statement of Claim, this Defendant says that section 7 of the Trade-marks Act is contrary to section 2(b) of the Canadian Charter of Rights and Freedoms insofar as it purports to apply to free expression of political opinion for non commercial purposes.

9. In the alternative, this Defendant says that section 7 of the Trade-marks Act, as well as the alleged torts of conspiracy, injurious falsehood and passing off, must be interpreted according to Charter principles in relation to the free expression of matters of political opinion.

10. In answer to the whole of the Amended Statement of Claim, this Defendant says that the Plaintiff’s action is a Strategic Lawsuit Against Public Participation intended to stifle or suppress the free expression of political opinion that is inconsistent with the Plaintiff’s political and editorial agenda of promoting the State of Israel within Canada. This Defendant says that the Plaintiff’s action is entirely without merit and discloses no reasonable claim, is unnecessary, scandalous, frivolous, vexatious, prejudicial and embarrassing and constitutes an abuse of the process of the court.

WHEREFORE the Defendant Carel Moiseiwitsch seeks an order that the Plaintiff’s claim against her be dismissed with special or increased costs.

Dated this 14th day of August, 2008.

This Statement of Defence is filed and delivered by A. Cameron Ward of the firm of A. Cameron Ward & Company, whose place of business and address for delivery is #1106 – 207 West Hastings Street, Vancouver, BC V6B 1H

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MORDECAI BRIEMBERG AMENDED STATEMENT OF DEFENCE

I. The defendant Briemberg admits the facts set out in paragraphs I, 2 and 3 of the statement of claim.

2. The defendant Briemberg admits the facts set out in the first sentence of paragraph 4 of the statement of claim. He denies that he is the webmaster/administrator of a website called Canpalnet- Vancouver.org. He denies that he is a founding member of that website.

3. The defendant Briemberg says that there is a website called Canpalnet.ca which does publish articles critical of Israeli policies that violate International law. He was an originator of that website. He is not however the site webmaster/administrator. Canpalnet’s objective is to seek to influence the policies of the Canadian government so that they support the rights of the Palestinian people. It is guided by various United Nations resolutions affirming Palestinian rights of return and calling for an end to Israeli occupation. Canpalnet guides itself by International law including the Fourth Geneva Convention which upholds the equal worth and dignity of persons regardless of their ethnic or religious identity and which affirms democratic rights and opposes apartheid structures.

4. With respect to paragraphs 5 and 6, the defendant Briemberg denies the facts set out in those paragraphs in so far as they refer to him.

5. The defendant Briemberg admits the facts set out in paragraphs 7,8 and 9.

6. With respect to paragraphs 10, 11, and 12 the defendant Briemberg says that the facts set out in those paragraphs are wholly irrelevant to the plaintiff’s claim. They are pled contrary to Rule 19(24)(b), (c), and (d) of the Rules of Court. In addition, they are sufficiently vague that the defendant is unable to properly plead to them. The defendant Briemberg does say that he is involved in media activities that are critical of Israeli policies that violate International law. In all other respects, the defendant Briemberg denies the facts set out in paragraphs 10 and 11.

7. With respect to paragraph 13, the defendant Briemberg denies that facts set out in paragraph 13. Specifically, the defendant Briemberg denies conspiring with anyone. He denies having any intent to injure the plaintiff. He denies entering into an agreement as alleged.

8. The defendant does admit to handing out a number of copies of a four-page document critical of the plaintiff in the Vancouver area in June of2007. He denies causing the content of any fake newspaper to be published on any website. He denies and has no knowledge of any publication on any of the websites listed in paragraph 13 of the statement of defence. The defendant Briemberg denies entering into any conspiracy. He denies intending to embarrass or injure the plaintiff in any way. He denies being motivated by hostility to any of the plaintiff shareholders or by any desire to hurt the business of the plaintiff or its shareholders.

9. The defendant Briemberg denies that any of his conduct in question was unlawful. He denies that it injured the plaintiff and/or its principal shareholders. He denies knowing the likelihood of injury to the plaintiff or that it should have been known in the circumstances.

10. The defendant denies the facts set out in paragraphs 14 and 15 of the statement of claim.

11. With respect to paragraph 16, the defendant Briemberg denies the existence of any conspiracy. If there was a conspiracy, he denies being a party to it. He denies performing any of the acts set out in paragraphs (a) to (d) and (f) to (k) of paragraph 16. He does admit to handing out a number of copies of a four-page document critical of the plaintiff in the Vancouver area in June of 2007.

12. With respect to paragraph 17, the defendant Briemberg denies threatening or intending to repeat any of the acts of which he has been accused in the statement of claim.

13. With respect to paragraph 18, the defendant Briemberg denies publishing any fake newspaper. He denies re-publishing the content thereof on the websites listed or any website. He denies any malicious conduct intended to injure the plaintiff and the goodwill and custom of the plaintiff.

14. With respect to paragraph 19, the defendant Briemberg denies that the conduct alleged constituted a misrepresentation and passing off of any fake newspaper. He denies that the four-page document handed out by him constituted a misrepresentation and passing off that document as a newspaper of the plaintiff. He denies that any fake newspaper or the four-page document handed out by the plaintiff led the public or anyone to believe that there was an association between the plaintiffs and the fake newspaper or the four-page document.

15. With respect to paragraph 20, the defendant Briemberg denies that the plaintiff has suffered loss or damage and continues to suffer any loss or damage. The defendant denies that the plaintiff has lost any goodwill or suffered a depreciation in its goodwill with respect to its trade mark.

16. With respect to paragraph 21, the defendant Briemberg denies the facts set out in that paragraph.

17. With respect to paragraph 22, the defendant Briemberg says that section 7 of the Trade Marks Act has no application to the conduct of the plaintiff complains of nor does it have any application to the conduct to which the defendant Briemberg has admitted.

18. The defendant Briemberg says that section 7 of the Trade Marks Act is contrary to section 2(b) of the Canadian Charter of Rights and Freedoms in so far as it is applied to freedom of expression, when that expression is used for noncommercial purposes involving the use of parody, satire, irony, or exaggeration, on political issues .

19. In the alternative, the defendants say that section 7 of the Trade Marks Act must be interpreted according to Charter principles relating to the exercise of freedom of expression in matters of political concern.

20. With respect to paragraph 23, the defendant Briemberg denies that the plaintiff is entitled to any punitive damages. In addition, he demands particulars of the facts upon which the claim for punitive damages are based.

21. With respect to paragraph 24, the defendant Briemberg denies that the plaintiff is entitled to any aggravated damages. In addition, he demands particulars of the facts upon which the claim for aggravated damages are based.

22. With respect to paragraph 25, the defendant Briemberg says that the plaintiff is not entitled to any of the remedies set out in paragraph 25 as against him.

23. The defendant Briemberg says that certain of the remedies sought bear no relationship to any of the plaintiffs claims.

24. With respect to the entire statement of claim, the defendant says that the torts of conspiracy, injurious falsehood, and passing off must be interpreted according to Charter principles relating to the exercise of freedom of expression in matters of political concern.

25. Also with respect to the entire statement of claim, the defendant says that it an abuse of process and contrary to Rule 19(24) of the Supreme Court Rules. It is a strategic lawsuit against public participation in so far as it names the defendant Briemberg.

26. WHEREFORE the defendant Briemberg seeks an order that the plaintiff s claim against him be dismissed with costs awarded to him.

Dated at Vancouver, British Columbia, this 25th day of April 2008.

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Original Writ

WRIT OF SUMMONS and STATEMENT OF CLAIM

IN THE SUPREME COURT OF BRITISH COLUMBIA
CANWEST MEDIAWORKS PUBLICATIONS INC.,
Plaintiff
HORIZON PUBLICATIONS LTD., GARTH LEDDY, MORDECAI BRIEMBERG, JOHN DOE #1, JOHN DOE #2, JOHN DOE #3, JANE DOE #1, JANE DOE #2 and JANE DOE #3
Defendants
CHURCH & COMPANY
Barristers
900 – 1040 West Georgia Street, Vancouver, BC V6E 4H1

1. The plaintiff is a media company that owns, among other things, the Vancouver Sun newspaper published in Vancouver, British Columbia. The plaintiff has an address in British Columbia at Granville Square, 200 Granville Street.

2. The defendant Horizon Publications Ltd. (“Horizon”) is a publishing/printing company with a business address at 1983 Pandora Street, Vancouver, British Columbia. Part of Horizon’s business is the printing of newspapers, and other publications for, and on behalf of, customers who retain Horizon for that purpose.

3. The defendant Garth Leddy (“Leddy”) has an address care of 1983 Pandora Street, Vancouver,British Columbia. Leddy is the President and general manager of the defendant Horizon and is responsible for the acceptance and execution of printing contracts by the defendant, Horizon.

4. The defendant Mordecai (“Briemberg”) has an address at 123 North Sea Avenue, Burnaby, Be. Briemberg is the webmaster/administrator of a website called Canpalnet-Vancouver.org (“Canpalnet”), which styles itself as a Palestine support network. Briemberg is a founding member. Canpalnet reqularty publishes antiIsraeli/ pro-Palestinian articles.

5. The defendants John Doe #1, John Doe #2 and John Doe #3 have addresses unknown to the plaintiff. Each of these defendants has a relationship, directly or indirectly, with one or moreother named defendants and is a participant, directly or indirectly, in the other defendants’ activities.

6. The defendants Jane Doe #1, Jane Doe #2 and Jane Doe #3 have addresses unknown to the plaintiff. Each of these defendants has a relationship, directly or indirectly, with one or more other named defendants and is a participant, directly or indirectly, in the other defendants’ activities.

7. The plaintiff publishes the Vancouver Sun six days a week in hard copy in British Columbia and enjoys a circulation of approximately 200,000. Further, the Vancouver Sun is also published on the Vancouver Sun website, www.vancouversun.com. which is typically viewed by 400,000 readers a month.

8. The Vancouver Sun has published continuously in Vancouver since 1912. The Vancouver Sun logo, layoutand other visual identifiers ofthe newspaper have been used in connection with the newspaper and to distinguish it from other newspapers. The logo is distinctive and known to the public as being indicative of the plaintiffs newspaper.

9. The public in Canada, and particularly in British Columbia and western Canada, have come to recognize the Vancouver Sun publication as being distinctive and there is goodwill or reputation attached to the name and to the usage of it as a daily newspaper and media outlet in the mind of the purchasing public in Canada, and particularly in British Columbia and western Canada.

10. Each of the defendants is involved, directly or indirectly, in anti-Israeli and proPalestinian media activities. Further, the defendants, or some of them, harbour antagonistic views towards the plaintiff, its principal shareholders and the reporting and editorial opinions expressed in the plaintiff’s publications, including in the Vancouver Sun.

11. Each of the defendants, has been involved, directly or indirectly, in the past in the authoring and publication of books, articles and the provision of interviews harshly critical of the State of Israel and of the plaintiff and anyone who publishes articles or views which the defendants perceive to be contrary to their views.

12. Each of the defendants is involved,directly or indirectly, in publishing articles, on the internet and otherwise, which are pro-Palestinian and anti-Israeli and which articles, among other things, are directed at the plaintiff and Usprincipal shareholders and other individuals and corporations who, in the opinion of the defendants, express support for the State of Israel.

13. On or before June 1, 2007, the defendants conspired, each with the other, with the intent to injure the plaintiff by entering into an agreement to author, print and distribute a fake edition of the Vancouver Sun on June 7, 2007 (the “fake newspaper”). The defendants distributed approximately 12,000 hard copies of the fake newspaper in Vancouver, and Victoria, including on the campus of the University of British Columbia. Further, the defendants caused the content of the fake newspaper to be pUblished on a website, which the defendants created, www.vancouversun.7p.com . The defendants also published the content of the fake newspaper on various other websites including the following:
electronicintifada.net – Electronics Intifada
stopthewall.org – Stop the Wall Campaign
btselem.org/english – Israeli Human Rights Group
pchrgaza .org – Palestinian Centre for Human Rights
www.ochaopt.org – UN Office for Humanitarian Affairs
caiaweb.org/indigoboycott – Boycott Chapters/Indigo
yournews.ca – media concentration in Canada
zmag.org/meastwatch/meastwat.cfm – Middle East Watch
ifamericansknew .org – Middle East Media Analysis

14. The sole, or predominant, intention of the defendants in entering into the conspiracy was to embarrass and to injure the plaintiff in its business and the defendants were motivated by hostility to the principal shareholders of the plaintiff and by a desire to undermine, or hurt, the business of the plaintiff and its principal shareholders.

15. Alternatively, the conduct of the defendants in furtherance of their conspiracy was unlawful and was directed toward the plaintiff, and its principal shareholders, and the likelihood of injury to the plaintiff was known to the defendants at all material times or should have been known to them in the circumstances. @PFOesklopl ::OOMAlGRPWISElCC_OOM .CC_PO.SSOATA:ge864 .1 -8- ”

16. Pursuant to their conspiracy, the defendants, or one or more of them, carried out or caused to be carried out the following overt acts, which were aimed, or directed, at the plaintiff, and which it could reasonably be foreseen would injure the plaintiff :

(a) creating the text and layout of the fake newspaper;

(b) utilizing text and layouts as published on Canpalnet, which text and layouts were designed to directly or indirectly promote anti-Israeli and pro-Palestinian sentiment;

(c) utilizing the name Vancouver Sun for the oubncanonof the fake newspaper and, in essence, taking the plaintiffs identity for the purpose of lending credibility to the statements .in the fake newspaper;

(d) printing the fake newspaper;

(e) distributing 12,000 copies of the fake newspaper in Vancouver and Victoria;

(f) breaking into Vancouver Sun newspaper boxes and wrapping copies of the Vancouver Sun newspaper in the fake newspaper;

(g) publishing the fake newspaper on a website created by the defendants, or some of them. www.vancouversun.7p.com;

(h) publishing the fake newspaper on various other websites, including those listed in paragraph 13;

(i) publishing a press release, on June 7, 2007, advertising the activity that the conspirators were involved in and further criticizing the plaintiff and its principal shareholders;

(j) under the pseudonym “Earl Zatz Handel” conducting an interview on a Vancouver radio station, and, in that interview, further publishing the existence of the fake newspaper and further criticizing the plaintiff and its principal shareholders; and

(k) providing those who contacted the email address and phone number, provided in the defendants’ press release, with further commentary criticizing the plaintiff and its principal shareholders.

17. The defendants threaten and intend to repeat the acts complained of.

18. The actions of the defendants in publishing the fake newspaper and republishing the content thereof, on the www.vancouversun.7p.comwebsiteand on various other websites, were malicious acts intended to injure the plaintiff and the goodwill and custom of the plaintiff.

19. Further, the actions of the defendants, and each of them, in publishing the fake newspaper, and republishing the content thereof on the www.vancouversun.7p.com website and on various other websites, constitute a misrepresentation and passing off of the fake newspaper as that of the plaintiff, leading the public to believe there was an association between the plaintiff and the fake newspaper.

20. As a result of the acts carried out by the defendants, or one or more of them as particularized in paragraph 16 of the statement of claim, in furtherance of the conspiracy, the plaintiff has suffered loss and damage and continues to suffer loss and damage including loss of goodwill and depreciation of the plaintiffs goodwill in its trademark.

21. Further and in the alternative, the plaintiff claims that, as the acts described in paragraph 16 of this statement of claim are independently actionable as passing off and injurious falsehood, even if not committed pursuant to a conspiracy, the plaintiff claims damages, in relation to those acts.

22. The plaintiff pleads and relies on the provisions of section 7 of the Trade-marks Act, R.S. 1985. c. T-13, as well as the common-law of British Columbia in relation to the torts of passing off and injurious falsehood.

23. The plaintiff claims punitive damages. The facts on which the plaintiff relies in support of this claim are the fact of the conspiracy to which the defendants are parties and the acts carried out in the furtherance of the conspiracy as particularized in paragraph 16 of this statement of claim.

24. The plaintiff claims aggravated damages. The facts on which the plaintiff relies in support of this claim include the acts of the defendants in furtherance of the conspiracy and, in particular, the acts of republication of the fake newspaper, the issuance of a press release reg~rding the fake newspaper and the giving of interviews relating to the publicatlon of the fake newspaper.

25. The plaintiff claims against the defendants and each of them as follows:

(a) a declaration that the defendants have passed off, both at common law and as prohibited by section 7(b) of the Trade-marks Act. R.S. 1985, c. T-13, the fake newspaper as and for that of the plaintiff;

(b) an injunction restraining the defendants, and each of them, either by themselves, their servants, agents or otherwise from:

(i) creating, printing, or distributing any publications, including on any websites, bearing the plaintiffs name and trade marks and in a getup similar to the plaintiffs and represented as the plaintiffs wares;

(ii) passing off or attempting to passoff or causing, enabling, or assisting others to pass off or to attempt to pass off fake newspapers or any other publications as and for the publications of the plaintiff, including the Vancouver Sun;.

(iii) publishing injurious falsehoods by way of newspapers or other publications, on the internet or otherwise;

(iv) falsely suggesting any association between the defendants’ fake newspaper, or other publication including on the internet, and the Vancouver Sun; and

(v) restraining the defendants, and each of them, by themselves, their servants, agents or otherwise, from continuing with the acts alleged in paragraph 13 of this statement of claim, or acts similar in kind to those acts;

(c) an order for delivery up to the plaintiff of all material of any kind in the possession, custody or control of the defendants or any of them as may offend the injunction sought in SUb-paragraph(b) above;

(d) general damages;

(e) special damages;

(f) punitive damages;

(g) aggravated damages;

(h) special costs, or alternatively costs; and

(i) such further and other reliet.as the court deems just.

PLACE OF TRIAL: Vancouver, British Columbia
DATED: at Vancouver, British Columbia, this 7th day of December, 2007.

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FURTHER REQUESTS & DOCUMENTATION FROM THE EXAMINATION FOR DISCOVERY OF MORDECAI BRIEMBERG

Produce any documentation, correspondence, or internal emails of Canpalnet that relate to the organization and presentation of the forum on June 6, 2007.

Where did the Chapters/Indigo boycott notice and brochure come from?

How did they end up on the Canpalnet site at or about the same time as Exhibit 1 was produced?

Who was responsible for administering the website on or about June 6, 2007?

Who put up the notice?

Who generated the artwork for the notice?

Who generated the artwork for the brochure?

Who was the artist that prepared the presentation in the brochure for the June 6, 2007 forum?

How did Canpalnet configure the brochure and the notice?

Provide me with all the information Canpalnet or you can obtain on who prepared that artwork on Canpalnet on the June 6, 2007 forum.

Who was responsible for the postings on Canpalnet in May and June 2007?

Who was involved in the consultation with respect to the posting of the notices regarding the June 6, 2007 forum and the “Boycott Chapters/Indigo” notice and brochure?

Who was in Canpalnet in May and June 2007?

Who participated in the preparation for or presentation of the June 6, 2007 forum?

Who was on your defence committee?

Provide me with the name of anybody you have spoken to about the case apart from public interviews?

What have you spoken to them about?

I want to know if you have spoken to any of the people I have listed so far about the case and in what respect; what was said and when?

Who was on the Seriously Free Speech Committee?

Does the committee intend publishing anything under the name of any of the Canwest periodicals?

I would like you to ask the committee this.

Is the committee or any of its members planning anything of that sort?

That inquiry includes a parody edition or anything that would improperly use a Canwest name.

Can you confirm that Exhibit 6 was from the Canpalnet website?

Who at Canpalnet was at meetings of the co-operative group listed at the foot of Exhibit 7?

Did they keep any notes?

Was there any email or other correspondence or communications relating to the preparation of the layout and in particular, the graphic?

Who prepared the graphic and the terms of use of the graphic?

Confirm for me that the individuals on Canpalnet publishing the Chapters/Indigo logo knew that it was the Chapters and Indigo logo and intended that it be virtually identical to that logo?

Is Canpalnet generally indifferent to the issue as to whether they are publishing the logos or business logos and get-ups of various businesses?

Or was it done intentionally as part of the “Boycott Chapters and Indigo”?

Did you have occasion to be communicating with ISM in May and June 2007 about the events described in Exhibit 10 or any related events?

Was there any communication, exchange or information or exchange of graphics?

Where did the graphic that appeared on the Canpalnet site come from; did it originate with ISM or elsewhere?

Provide me with the contact information, address, phone number, email or otherwise for the individuals I listed to you this morning. If you have it accessible readily through Canpalnet or any of your other organizations, including Stop War or your connections with ISM, I would like to have that, or your connections with your free speech committee.

I want all of the documents relating to the Seriously Free Speech Committee, any minutes of any meetings, communications, agendas, attendances as well as the membership list, their addresses and contact numbers.
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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Canwest Mediaworks Publications Inc. v. Murray,

2009 BCSC 391

Date: 20090305
Docket: S078309
Registry: Vancouver

Between:

Canwest Mediaworks Publications Inc.

Plaintiff

And

Gordon Murray
Carel Moiseiwitsch
John Doe #2, John Doe #3, Jane Doe #2 and Jane Doe #3

Defendants

Before: The Honourable Mr. Justice Myers

Oral Reasons for Judgment

In Chambers
March 5, 2009

Counsel for the Plaintiff:

D.P. Church, Q.C.

Counsel for the Defendant G. Murray:

J. Gratl

Counsel for the Defendant C. Moiseiwitsch:

C. Ward

Date and Place of Hearing:

February 26, 2009

Vancouver, B.C.

I. Introduction

[1] Mr. Murray appeals from a decision of Master Donaldson (2008 BCSC 1609) striking four paragraphs from his statement of defence, pursuant to Rule 19(24). Master Donaldson also ruled on a document production motion, which Mr. Murray appeals as well.

[2] The plaintiff’s action arises out of the publication and dissemination by the defendants of a mock edition of the Vancouver Sun in June, 2007. The mock paper duplicated the masthead of the Vancouver Sun. It contained articles which, by their sarcasm, criticised, amongst other things, Israel’s policy with respect to the Palestinians. The articles also criticised the plaintiff’s reporting of Middle East issues. The mock papers were placed in Vancouver Sun vending machines.

[3] The plaintiff claims for passing-off, breach of s. 7(b) of the Trade-Marks Act, R.S.C. 1985, c. T-13 (the equivalent to common law passing-off) and breach of copyright. A claim of injurious falsehood was dropped after the ruling of Master Donaldson.

[4] Master Donaldson ruled that the impugned paragraphs had nothing to do with the plaintiff’s causes of action and should therefore be struck under Rule 19(24). It is not clear whether he relied on Rule 19(24)(a) or only on the other sub-rules of Rule 19(24).

[5] Both parties suggested that I treat this as a motion de novo, presumably to avoid arguments as to whether Master Donaldson had the jurisdiction to make the order he did on the basis he did. (Under a May 22, 1997 Practice Direction, Masters have the jurisdiction to make final orders under Rule 19(24) provided “there is no determination of a question of law relating to issues in the action”.)

[6] I will deal first with the plaintiff’s motion to strike and then Mr. Murray’s document production motion.

II. Motion to strike

[7] The paragraphs which were struck from the statement of defence are:

2. Canwest is Canada’s largest newspaper chain reaching 4.8 million readers on a weekly basis. It owns and operates the following newspapers, which together comprise approximately 84% of the daily paid newspaper circulation in British Columbia: the Vancouver Sun, the Vancouver Province; the Victoria Times-Colonist; the Vancouver Courier; the New Westminster Record; Surrey New; Richmond News; North Shore News; the Abbotsford/Mission Times; Burnaby Now; Chilliwack Times; Coquitlam Now; Delta Optimist; Langley Advance; Maple Ridge/Pitt Meadows Times; Nanaimo Daily News; Nanaimo Harbour City Star; Port Alberni Times; Cowichan Valley and Duncan’s Cowichan Valley Times; Parksville/Qualicum Beach Oceanside Star; Courtney/Comox Comox Valley Echo; Campbell River’s Courier Islander; Tofino/Ucluelet Westerly; Port Alberni Pennyworth; Alberni Valley Times; and the National Post. Canwest describes itself as the dominant news organization in British Columbia.

3. Canwest newspapers and other Canwest media properties have a strong pro-Israel bias, particularly in their coverage of the Israeli occupation of the West Bank and the Gaza Strip. In Canwest publications, Israelis are usually portrayed as innocent victims and Palestinians as inhuman terrorists. Israeli casualties and deaths are disproportionately reported and sympathetically described while Palestinian deaths are relatively underreported and unsympathetically described. Canwest takes the position that Israel is blameless and described the Palestinian people in one editorial as a single collective suicide bomber.

4. The bias exhibited by individual Canwest papers and media properties is the product of a centralized editorial policy that emanates from Canwest’s headquarters and its senior directors and principal shareholders. This centralized policy took hold at the Vancouver Sun shortly after Canwest purchased the print media and newspaper holdings of Southam Inc. in November of 2000. One express purpose of the centralized editorial policy is to insulate Israel from criticism for its violations of international law and to influence Canadian public opinion and foreign policy. The editorial policy limits and restricts the freedom of Canwest reporters and editors, including those employed by the Vancouver Sun, to publish facts and opinions after their own fashion. Canwest enforces its editorial policy by threatening to terminate the employment of newspaper reporters and editors who are publicly critical of the policy, which is a threat carrying significant weight given the extent of Canwest newspaper ownership.

11. The defendant denies that Canwest suffered any loss of circulation or revenue as a result of the parody. The defendant says that this lawsuit is not intended to compensate Canwest for any losses. This lawsuit is intended to restrict publication and circulation of the Parody, to inflict economic and emotional harm on the defendants for the pro-Palestinian activities listed in paragraphs 10, 11 and 12 of the Statement of Claim, and to generally deter publication of the opinions expressed by the Parody. This purpose and effect of this lawsuit are inimical to the common law and to the Charter of Rights and Freedoms. This lawsuit represents a perversion of civil justice and an abuse of process and is contrary to Rule 19(24) of the Supreme Court Rules.

[8] Rule 19(24) provides:

At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence as the case may be,

(b) It is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing or the proceeding, or

(d) it is otherwise an abuse of the process of the court,

and the court may grant judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[9] To strike a defence under Rule 19(24)(a), it must be plain and obvious that the defence will fail, assuming the facts pleaded in the defence to be true. See Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273.

[10] With respect to sub-rules (b) and (c), in Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress (1999), 36 C.P.C. (4th) 266 (B.C.S.C.), Romilly J. stated, at para. 47:

Irrelevancy and embarrassment are both established when pleadings are so confusing that it is difficult to understand what is being pleaded. An “embarrassing” and “scandalous” pleading is one that is so irrelevant that it will involve the parties in useless expense and will prejudice the trial of the action by involving them in a dispute apart from the issues. An allegation which is scandalous will not be struck if it is relevant to the proceedings. It will only be struck if irrelevant as well as scandalous. A pleading is “unnecessary” or “vexatious” if it does not go to establishing the plaintiff’s cause of action or does not advance any claim known in law. A pleading that is superfluous will not be struck out if it is not necessarily unnecessary or otherwise objectionable. A pleading is “frivolous” if it is obviously unsustainable, not in the sense that it lacks an evidentiary basis, but because of the doctrine of estoppel. [citations removed]

[11] After noting that the defendant was arguing that parts of the statement of claim were unnecessary, scandalous and vexatious and that they would prejudice, embarrass and delay the fair trial of the proceeding, Romilly J. went on to state, at para. 48:

… The question before this court then, is do the impugned pleadings constitute allegations of fact relevant to and necessary for the purpose of furthering the plaintiff’s cause of action?

[12] The focus of the inquiry, therefore, under Rules 19(24)(b) and (c) is on the relevance of the allegations to the plaintiff’s cause of action or the defendant’s defence. With that in mind, I turn to analyse the causes of action and pleadings in the case at bar.

A. Passing-off

[13] I will begin by reviewing the constituent elements of the tort of passing-off and then consider the arguments in relation to that.

[14] In Asbjorn Horgard A/S v. Gibbs/Nortac Industries Ltd. (1987), 38 D.L.R. (4th) 544, 14 C.P.R. (3d) 314 at 327 (F.C.A.), MacGuigan J. for the Court described the nature of passing-off, both at common law and in the cause of action provided for by s. 7(b) of the Trade-marks Act:

Subsection 7(b) is a statutory statement of the common law action of passing-off, which consisted of a misrepresentation to the effect that one’s goods or services are someone else’s, or sponsored by or associated with that other person. It is effectively a “piggybacking” by misrepresentation.

[15] It will be seen from this quote that there is no distinction between a claim in passing-off at common law and an action for breach of s. 7(b) of the Trade-marks Act.

[16] In Ciba-Geigy Canada Ltd. v. Apotex Inc., [1992] 3 S.C.R. 120 at 132, 95 D.L.R. (4th) 385, the Supreme Court set out the three elements which a plaintiff must prove in a passing-off action at para. 33. They are:

… the existence of goodwill, deception of the public due to a misrepresentation and actual or potential damage to the plaintiff.

[17] Turning to the statement of defence, paragraphs 3 and 4 may be analysed together. Their thrust is to assert that Canwest is biased towards Israel and that it controls how its writers report the news through centralised editorial policies.

[18] Mr. Murray argues that these paragraphs are relevant to the issue of confusion. In paragraph 12 of his written argument he says:

The appellant says that the plaintiff’s editorial bias and editorial policies restrict the Vancouver Sun from ever publishing a paper that could be confused with the Parody. Canwest could never be the source of the Parody because its editorial policies would not allow for it.

[19] I do not agree with this argument, and I note that Mr. Murray cited no authority in support of it.

[20] Confusion, or the likelihood of confusion, is not proved by the plaintiff’s intentions. What Canwest might or might not allow or wish to allow with respect to its newspapers is beside the point: what matters are the final products, namely the publications, of each side in this litigation. In fact, Mr. Murray correctly stated the point in an earlier part of the same paragraph in his written argument where he said:

The appellant says that the content of the Parody differs so radically from the contents of the original Vancouver Sun that no reasonable person could conclude that Canwest was the source of the Parody. The appellant relies on a comparison of the contents of the Parody and the content of the Vancouver Sun to make this point.

[emphasis added]

Confusion is to be ascertained from a comparison between the publications themselves, evidence of individual consumers, survey evidence or expert evidence. The editorial policies of Canwest are not relevant.

[21] In oral argument, Mr. Murray further submitted that the plaintiff’s editorial policies are relevant because he will argue at trial that the public are aware of the policies and therefore they could not confuse the mock edition with the Vancouver Sun. What this argument engages is not Canwest’s actual editorial policies but the public’s perception or understanding of Canwest’s policies. From the point of view of confusion, or of Canwest’s reputation for that matter, its actual policies are beside the point. This is an instance where the perception rather than the reality are in issue.

[22] I now turn to paragraph 2 of the statement of defence. That paragraph addresses the circulation – in the aggregate – of every Canwest publication in Canada. But the action at bar involves only the Vancouver Sun. While the circulation of the Vancouver Sun would no doubt be relevant to the issue of reputation in a passing-off action, the aggregate circulation of all Canwest publications is not.

[23] Although copyright was not relied on by Mr. Murray for this part of his argument, the same principles would apply. Copyright protects a creator’s rights in original works. An action in copyright has nothing to do with the truth of the work: in fact, copyright exists in works of fiction.

Charter Issues

(i) Charter Values and constitutional applicability

[24] Mr. Murray argues that the common law and the Trade-marks Act must be interpreted in accordance with Charter values and that the truth is relevant to that. To quote his written argument, Mr. Murray says:

33. … The appellant says that core Charter values must factor into the balance between intellectual property and free expression, and that the content of the Parody, the meaning of the Parody, and the truth of the Parody are relevant at the trial of this matter.

34. The appellant says that incorporating truth into the balancing between intellectual property rights and the right of free expression would go some distance in discouraging lawsuits that use intellectual property rights to undermine the public contest for the truth. Attributing value to truth would have a prophylactic effect on suits such as this one, where the plaintiff has not suffered any actual economic harm. The effect would be comparable to the effect of the defence of truth in defamation suits. As Robert Martin notes in “Media Law”, “commentators on libel law often note that the defence of truth is seldom raised in actual libel actions. This is correct – and for a very good reason. If the story is true, no one is going to sue.”

Robert Martin, Media Law, (Irwin Law, 1997), p.141

[25] Mr. Murray relies on the case of British Columbia Automobile Assn. v. Office and Professional Employees’ International Union, Local 378, 2001 BCSC 156, 85 B.C.L.R. (3d) 302 [BCAA]. In that case the parties were involved in a labour dispute. The defendant union established a web site which went through several versions. The plaintiff claimed against the defendant in passing-off, trade-mark infringement and breach of copyright. In determining whether the meta-tags used in the defendant’s web site constituted passing-off (an issue not engaged here) Sigurdson J. stated at para. 30:

[130] I agree with the defendant’s argument that the common law should be interpreted in a manner consistent with the Charter. When a website is used for expression in a labour relations dispute, as opposed to commercial competition, there is, I think, a reasonable balance that must be struck between the legitimate protection of a party’s intellectual property and a citizen’s or a Union’s right of expression. I think that the principles in K Mart require such a balance and the common law should not be interpreted in a way to unreasonably infringe a person’s freedom of expression. In connection with this claim for passing-off, that balance favours the Union.

[26] For the following reasons, I do not agree that the truth of the contents of the mock edition is relevant to the issue Mr. Murray wishes to raise.

[27] Mr. Murray’s analogy of a defence of truth in a defamation action to a passing-off action, is, with respect, inapt. The essence of a defamation action is the publication of untrue statements of fact. The tort of passing-off has nothing to do with the truth of the contents of the subject of the passing-off action. As I have outlined above, it has to do with one person representing his goods or services as that of another.

[28] In the BCAA case, Sigurdson J. did not delve into whether anything on either parties’ web site were true or not. Rather, he applied Charter values by weighing the competing interests of the plaintiff employer and defendant union.

[29] In determining freedom of expression rights under s. 2(b) of the Charter, the Supreme Court has eschewed any consideration of the content of the communication. In R. v. Zundel, [1992] 2 S.C.R. 731 at 753, 95 D.L.R. (4th) 202, McLachlin J., speaking for the majority, said at para. 23:

23 … This Court in Keegstra held that the hate propaganda there at issue was protected by s. 2(b) of the Charter. There is no ground for refusing the same protection to the communications at issue in this case. This Court has repeatedly affirmed that all communications which convey or attempt to convey meaning are protected by s. 2(b), unless the physical form by which the communication is made (for example, by a violent act) excludes protection: Irwin Toy, supra, at p. 970, per Dickson C.J. and Lamer and Wilson JJ. In determining whether a communication falls under s. 2(b), this Court has consistently refused to take into account the content of the communication, adhering to the precept that it is often the unpopular statement which is most in need of protection under the guarantee of free speech: see, e.g., Keegstra, supra, at p. 828, per McLachlin J.; R. v. Butler, [1992] 1 S.C.R. 452, at p. 488, per Sopinka J.

[emphasis added]

[30] Finally, I note that Canwest has not pleaded in a reply to Mr. Murray’s statement of defence that his speech should be treated with less value because it is untrue.

[31] I reach the same conclusion with respect to the breach of copyright claim for the same reasons.

(ii) Constitutional Validity

[32] Mr. Murray has also pleaded that if the Trade-marks Act and Copyright Act, R.S.C. 1985, c. C-42 operate to prohibit him from publishing the mock newspaper, then they are invalid, because they constitute an infringement of his freedom of expression. He argues that the truth of the statements in the mock newspaper with respect to Canwest’s editorial policies is relevant in determining that issue. For the same reasons I expressed with respect to the prior point, I do not agree.

B. Motives of the plaintiff in bringing the lawsuit – paragraph 11 of the statement of defence

[33] Paragraph 11, except for the first sentence, attacks the motives of the plaintiff for bringing this action. While it claims that the lawsuit is an abuse of process, there is no counterclaim for that tort, which would require the specific pleading of the following elements, laid out in Hemming v. Newton, 2006 BCSC 1748, at paras. 40-44:

1. the defendants have been subjected to a legal process by the plaintiffs

2. this has been done predominantly to further some indirect, collateral and improper purpose outside the ambit of the litigation

3. some definite act or threat has been made in furtherance of that process

4. some measure of actual damage has resulted.

[34] In the absence of a counterclaim for abuse of process, the motives of a plaintiff for bringing an action are irrelevant. It is to be noted that even where there is a counterclaim for abuse of process the Courts have, on occasion, stayed the trial of the counterclaim because of the difficulties inherent in allowing the defendant to canvass the plaintiff’s litigation strategy: see Starbucks Corp. v. Second Cup Ltd. (1993), 46 C.P.R. (3d) 492 (B.C.S.C.).

[35] The mere assertion in a statement of defence that a lawsuit is an abuse of process does nothing more than assert – in an inappropriate, overly-polemical manner – that the plaintiff’s claim is without merit. It has no place in a pleading.

[36] Mr. Murray also argues that the motives of the plaintiff are relevant to the issue of special costs. I do not agree: a defendant is not entitled to inquire at trial as to the motives of a plaintiff in bringing an action in the hope that it might advance a claim for special costs.

C. Conclusion with respect to motion to strike

[37] Apart from the first sentence of paragraph 11, I conclude that any portions of paragraphs 2, 3, 4 and 11 which purport to raise a defence to the plaintiff’s claim are bound to fail and therefore disclose no defence. To the extent that any portions of those paragraphs allege facts in support of the defences which I discussed in these reasons, they are unnecessary and will delay a fair trial. The paragraphs, apart from the first sentence of paragraph 11 will, therefore, be struck.

III. Document production motion

[38] In Appendix A, I reproduce from Mr. Murray’s notice of appeal the documents being sought by him. In my view they relate solely to the pleadings which have been struck. Therefore, the motion for their production is denied.

[39] Mr. Murray’s appeal is therefore dismissed with costs.

“E. M. MYERS J.”

March 25, 2009 – Revised Judgment

Corrigendum to Oral Reasons for Judgment issued advising that:

[1] Paragraph 1 will now read:

[1] Mr. Murray appeals from a decision of Master Donaldson (2008 BCSC 1609) striking four paragraphs from his statement of defence, pursuant to Rule 19(24). Master Donaldson also ruled on a document production motion, which Mr. Murray appeals as well.

(amendment underlined)

[2] Paragraph 21 will now read:

[21] In oral argument, Mr. Murray further submitted that the plaintiff’s editorial policies are relevant because he will argue at trial that the public are aware of the policies and therefore they could not confuse the mock edition with the Vancouver Sun. What this argument engages is not Canwest’s actual editorial policies but the public’s perception or understanding of Canwest’s policies. From the point of view of confusion, or of Canwest’s reputation for that matter, its actual policies are beside the point. This is an instance where the perception rather than the reality are in issue.

(amendment underlined)

[3] Paragraph 30 will now read:

[30] Finally, I note that Canwest has not pleaded in a reply to Mr. Murray’s statement of defence that his speech should be treated with less value because it is untrue.

(amendment underlined)

[4] Paragraph 37 will now read:

[37] Apart from the first sentence of paragraph 11, I conclude that any portions of paragraphs 2, 3, 4 and 11 which purport to raise a defence to the plaintiff’s claim are bound to fail and therefore disclose no defence. To the extent that any portions of those paragraphs allege facts in support of the defences which I discussed in these reasons, they are unnecessary and will delay a fair trial. The paragraphs, apart from the first sentence of paragraph 11 will, therefore, be struck.

(amendment underlined)

The oral Reasons for Judgment are amended accordingly. In all other aspects, the oral Reasons stand.

Appendix A – Documents Sought by Mr. Murray

a. Documents dealing with the plaintiff’s pro-lsraeli / anti-Palestine bias, including any documents dealing with spiked stories, minutes of editorial board meetings, memoranda circulated to employees of the plaintiff, censorship of pro-Palestinian positions, blacklisting of journalists, and editing or altering Reuters newswire stories to conform with a Canwest policy to label certain groups as terrorist, as referred to in paragraph 3 of the Statement of Defence of Gordon Murray;

b. Documents dealing with the plaintiff’s centralized editorial policy, including documents dealing with the national editorial policy, byline strikes, dismissals or threats to dismiss employees, reprimands and suspensions of employees, memoranda circulated within the plaintiff corporation, and content review by head office in Winnipeg, as referred to in paragraph 4 of the Statement of Defence of Gordon Murray; and

c. All communications between the plaintiff and its principal shareholders dealing with the parody and this lawsuit, which communications reflect the plaintiff’s motivations for bringing this lawsuit as set out in paragraph 11 of the Statement of Defence of Gordon Murray.

6 Responses to Legalese

  1. It’s time to turn up the heat on CanWest. Cancel your subscriptions if you have one. If you read something that doesn’t seem balanced or factually correct challenge them on it. If it is not corrected then send complaints to the appropriate Provincial Press Council. Let’s not let CanWest control the discourse in this country.

  2. Reading through this writ is most troubling. The mock Sun issue was political, this writ is political… are our courts now to be the arbiters of political discourse?

    Many times the Sun has been parodied in precisely this manner. Somehow criticism of Israel is deemed more important than criticism of BC logging, criticism of environmental issues, criticism of media concentration (all of which have been the subject of mock issues).

    I guess the activists “went too far” this time, criticizing the state that sees itself as uncriticizable. Apparently the long arm of the uncriticizable state reaches all the way into the homes and pocketbooks of our own homegrown activists. I hope the courts throw out this SLAPP suit, and I hope the named defendant, as well as the 3 John Doe’s and 3 Jane Does launch a countersuit for damages!

  3. Hi Mordecai,
    Two thinks I would like to ask,
    1- I would like to invite Al-Jazira reporter to attend part of the legal events. If you give me dates, I will work on it.
    2- Today at 8:30 am. Asper Foundation used (Chnu10) to broadcast lectures dated 2002 on activists in Canada and the US that promote hate towards Israel. They have their own TV stattions and Newpapers but why they used the religious channel to broadcast their old programs ? I wouild like to ask the Channel 10 about using political programs instead religious ones.

  4. SLAPP suits should be illegal.
    Imagine, Canada, that you are not allowed to “publicly participate”. Imagine that corporations are allowed to launch a “strategic lawsuit” against specific people who want to exercise their views.

    We are not talking about hate literature here – we are talking about factual information, verifiiable events, opinions with legitimate evidence – is this not allowed in Canada?

    Well, the court case shall give us our answer. Does Canada have a just constitution or not? Can it protect our rights, or not? Is Canwest out of line, or not?

    My wish is that the Court would throw out this silly SLAPP suit and award costs, damages, etc. to the defendants , along with a sophisticated scolding of Canwest for wasting the Court’s time, accompanied by a warning that further mischief will cost them dearly.

  5. Slight problem with Mr. Briemberg’s statement of defense. Even though he now claims that he wasn’t a founder of Canpalnet. It’s all over the internet that he is or was.

    Also, they keep calling this “paper” a parody, which implies humour. There’s no much that’s humourous about the violent phrase: END ISRAEL’S BRUTAL APARTHEID OCCUPATION OF PALESTINE ! below a crude graphic of 2 rifles, which is the principle contents of page 3 of this “paper.”

    That phrase is generally understood to call for the eradication of the existence of Israel, and not a suggestion that Israel retreat to the 1967 armistice lines. Indeed, it’s a phrase that terrorist groups like Hamas use.

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