Wednesday, September 24, 2014

Has Mayor McMullan admitted to the Affair?

St. Catharines Mayor Brian McMullan continues to toy with his penchant for intimidation and harassment, although this time there is a new twist. As reported previously Christopher J. Bittle of Lancaster, Brooks & Welch LLP served, on behalf of his client, a Notice of Action on July 9th 2014. Four articles were singled out from Mayorgate which were claimed to have hurt his client's feelings.

Christopher Bittle's chant begins with “Your articles wrongly state an allegation of an affair as truth and use that as a basis to malign Mr. McMullan's character. These allegations are untrue.” The background music should now be building to a crescendo of thunderous proportion, “You have alleged the following conduct on the part of Mr. McMullan that is false: a) He has been involved in a affair with Debbie Zimmerman.” A crash comes sounding from the bass drum, “The above noted allegations are false and are presented as fact without any evidence of support.”

This is page 4 from the original Notice of Action served July 9th, 2014.

A Plaintiff's Claim was served on me as publisher of Mayorgate on August 26th 2014. This claim should have been a mighty climax, instead it turns out to be a tiny piccolo squeaking in the background. All protest and denial of the affair with Debbie Zimmerman had been dropped. Describing the so called defamation from point 12 through to point 21, Brian McMullan no longer denies the affair nor brings it up in his rhetoric, which in itself brings forth a serious issue to be dealt with momentarily. In fact not one single word is made to deny the affair. At this point regardless of how biased one may be to the truth or fact a simple observation comes screaming forth. Since Mayor Brian McMullan has stopped denying the affair with Regional Councillor Debbie Zimmerman, in legal documents at that, then he has finally succumbed to the weight of truth and admitted that fact. What other reasonable interpretation is possible by any reasonable individual?

Page 7 from the Statement of Claim served August 26th, 2014

Page 8 of the Statement of Claim served August 26th, 2014

In publishing and writing the articles on Mayorgate that span such a variety of relevant topics to our society one thread remains constant. As a writer, and author of any piece remaining on topic from the beginning to end is crucial in order to hold on to credibility. True evidence or documentation may need to be introduced, but the thread can never be lost. Those who write fiction or fantasy may have the luxury to meander into divergent fields but not an author of fact. Christopher Bittle as a lawyer on behalf of a client is in a way a writer, an author relying on the foundation of law for a clear and concise treatment of truth. That being said the main thread of his client's allegation from the Notice of Action, which begins any action under the Rules of Civil Procedure, has been dropped. The consequences are very serious.

Dropping all denial of the affair from his Statement of Claim, Brian McMullan has apparently admitted to the affair. That in itself is somewhat bewildering though there is a great deal more to examine. Christopher Bittle as a lawyer joined Lancaster, Brooks & Welch in 2010. He claims to specialise in Civil Law and Defamation Law. It would be expected that he would be quite familiar with the Rules of Civil Procedure. On behalf of his client Brian McMullan he served the Notice of Action on July 9th 2014, and now served the Statement of Claim on August 26th 2014. The Law Society of Upper Canada provides help and guidance on their website for the public and separately for lawyers. For lawyers the headings range from 'About Your License', 'Professional Rules' and 'Become a Lawyer'. Separately there is a heading titled 'How to Commence a Civil Action'. It would seem that years of university and passing the Bar Exam is not sufficient, a how-to guide is still required.

Under the heading 'How to Commence a Civil Action' there is a “How-to Brief,” truly there is, I do not jest. Quoting the Law Society of Upper Canada official website it states, “This How-to Brief outlines the steps to take when commencing an action.” There are eight steps outlined and step 3 is titled “Analyze the Case.” Bullet 5 here states quite clearly, “Where time is of the essence, prepare and issue a notice of action (form 14C). Note that if a notice of action is used, the statement of claim in Form 14D must be filed within 30 days of the notice of action being issued.”

In case Christopher Bittle missed this how-to guide there is a website provided by Law Help Ontario. This guide is called “Starting a Proceeding in Superior Court.” In simplified form a chart is provided, on the left “Start the Claim using,” in the centre the heading “Action.” Now I quote again, “If you start your claim with a Notice of Action, you must file a Statement of Claim (Form 14D not Form 14A) with the court office within 30 days after the Notice of Action is issued.” Mind you before one is able to file with the court office any notice of action, statement of claim or statement of defence, that notice or statement must first be served on the defendant or plaintiff and proof of service provided to the court.

Small Claims Court is the lowest rung on the ladder for the justice system of courts. It is used to adjudicate minor disputes so as not to clog up the court system and so as to get faster results. Brian McMullan had decided to not follow his lady friend and only lower his claim to the Small Claims Court. Yet all the rules under the Libel and Slander Act apply and rules of service. At point 16 of the Statement of Claim he attempts to provide an explanation as to why he missed the time limitation period under the Libel and Slander Act for one article in particular. Equally he has to comply with time limitations relating to the service of his statement of claim.

These rules which the courts and various legislation expect all to abide by are set to bring a unified and fair system of justice. They are also designed to permit a timely resolution to grievances. One such rule is simply a requirement that as an action begins with a notice of action it then continues unchanged, renovations and add-ons are not accepted. Christopher Bittle of Lancaster, Brooks & Welch threw this gem into the Statement of Claim point 13 (h), “Such further and other items as counsel may advise.” He continued again with point 14, “Despite the lack of evidence to support the defendant's allegations, Davidoff refused to print a retraction.”

Evidence, what is evidence? Webster explains the word to mean “2. something that makes another thing evident, indication; sign, 3. something that tends to prove; ground for belief, 4. Law, something presented in a legal proceeding, as a statement of a witness, an object etc; which bears on or establishes a point in question.” Rather simple and clear to understand one would think, it is for that reason that my Statement of Defence which was served on Christopher Bittle at Lancaster, Brooks & Welch and his client Brian McMullan on September 15th 2014, was 629 pages deep of evidence.

It appears that Lancaster, Brooks & Welch LLP's budget on copying ink must be extremely limited, as many of the pages copied by Christopher Bittle in his Statement of Claim relating to my articles are so very faint, and barely readable. I have provided them loud and clear to ensure no error is made. Soon more evidence will be provided at the mandatory Settlement Conference, and it will be interesting to hear how the Lancaster, Brooks & Welch orchestra supports the piccolo solo act.

Christopher Bittle and his client Brian McMullan have slandered both me and my website,, twice. First in his Notice of Action, Bittle states, “The above noted allegations are false and are presented as fact without any evidence of support.” Then the Bittle and McMullan tag team claimed, “Despite the lack of evidence to support the defendant's allegations, Davidoff refuses to print a retraction.” Now comes the opportunity to put Brian McMullan under oath and prepare the list of questions (oh, most are prepared already) that will come from the 629 pages of evidence. It is time for Mayor Brian McMullan to answer under the threat of perjury and finally provide the truth. Brian McMullan ran from taking the oath in his attempted intimidation of Regional Councillor Andy Petrowski, he cannot escape this now.

Reading each of the quotes chosen by Christopher Bittle for his client Brian McMullan one point stands out over and over again. Each of the quotes are intentionally taken out of context, no sentence simply stands alone. An example is the very first one labelled as #5 from Mayorgate's article 'Brian McMullan's Fear of Mayorgate'. “How far will the machinations of Mayor Brian McMullan reach past common dignity and continue to be motivated by the fear of truth?”.

This particular quote in fact is the opening to the article and appropriate to use here and now. It reads in full: “How far will the machinations of Mayor Brian McMullan reach past common dignity and continue to be motivated by the fear of truth? The answer to such a question is not easy to settle on, as time and time again Brian McMullan has proven that something new is always on the horizon.”

Christopher Bittle did leave out this quote from paragraph 4 of the article, “Still Brian McMullan's fear of Mayorgate grows and if that is not to be considered truth then another explanation of these actions by McMullan is welcomed, by Brian McMullan himself!”.

Brian McMullan chose threat and intimidation so as to silence a voice that reaches for the truth and raises very uncomfortable questions. Each article that appears on Mayorgate searches for the truth, raising questions and comment from its readers. The Supreme Court of Canada made it clear in its decision after hearing the Grant v. Torstar appeal that the threat of litigation against journalists silences the free exchange of debate.

McMullan claims that he had been hurt by facts being discussed openly, yet he is an elected public official paid by public funds. He claims that his credit had been affected by articles on Mayorgate, yet he intentionally lost his home and had his utilities cut off on an income of $160,000 plus. As one listens to the words of City of St. Catharines' Merritton Ward Councillor Jennie Stevens, in her own voice, stating that the Mayor had fixed a fine, can it be possible to make a fair comment that it was wrong? Will the voice of Councillor Jennie Stevens on the answering machine raise comment? Regardless of whether an individual is aware of the Municipal Act or of law itself, will there be comment?

Reading the divorce papers filed by the wife of Mayor Brian McMullan where she raises adultery in legal court documents and names Regional Councillor Debbie Zimmerman as the partner in adultery, is it fair to raise questions of conflict of interest? After all both Brian McMullan and Debbie Zimmerman are sitting on council together, and the nature of adultery is based on daily dishonesty. Does a husband tell his wife that he is off to a hotel with another woman rather than really having a business trip and expect that his wife will be calm about the whole thing? No, the husband lies! Can those lies then find themselves creeping into all other areas of his life? Do the people who he and in this case she, represent have the right to question the situation?

Truth, facts and the right to question is the foundation of journalism. At the same time those who prefer to stay under the cover of darkness threaten and intimidate to ensure that nothing or as little as possible leaks out.

In a bold and strong decision the Supreme Court of Canada decided that the protection of free speech was an absolute necessity to protect. The Supreme Court decisions in the Grant v. Torstar and WIC Radio v. Simpson cases have set the benchmark for both protection and defence of journalistic expression and freedom of speech.

Paragraph 31 from the Grant v. Torstar decision states; “In addition to the privilege, statements of opinion, a category which includes any “deduction, inference, conclusion, criticism, judgement, remark or observation which is generally incapable of proof” (Ross v. New Brunswick Teachers' Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56, cited in WIC Radio, at para. 26), may attract the defence of fair comment. As reformulated in WIC Radio, at para. 28, a defendant claiming fair comment must satisfy the following test: a) the comment must be on a matter of public interest; b) the comment must be based on fact; c) the comment, though it can include inferences of fact, must be recognisable as comment; d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. WIC Radio expanded the fair comment defence by changing the traditional requirement that the opinion be one that a “fair-minded” person could honestly hold, to a requirement that it be one that “anyone could honestly have expressed” (para. 49-51), which allows for robust debate. As Binnie J. put it, “[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones” (para. 4).”

In this action brought about by Mayor Brian McMullan and his lawyer Christopher Bittle the issues extend far beyond the points of fair comment, public interest or of fact. A greater and more alarming facet of our society has to be defended. To this point Brian McMullan has been served with some 629 pages as a statement of defence, it is only the outline which the defence is to be based on. A further set of documents will be served on Brian McMullan prior to the court imposed settlement conference. The actual defence will begin with the dozens of questions Mayor Brian McMullan will answer under oath on the stand.

Our democratic society thrives under the belief that we as Canadians have certain rights which are protected under law and legislation. Although the laws and legislation do exist their protection is far from automatic. The issues here go far beyond a journalist being threatened or the public's interest. Rather the battle line is drawn on a greater field, one that we as Canadians cannot believe, or simply will not believe is possible in Canada.

Censorship is generally a tool used to weaken and control a society, in a way forcing it into submission of its will. Self-imposed censorship is an abomination of corruption of society, and no Canadian will believe that it is possible anywhere in Canada. In this case THEY ARE WRONG!

Quoting again from Grant v. Torstar, paragraph 36, “In the last decade, this recognition has sometimes been extended to media defendants. For example, in Grenier v. Southam Inc., [1997] O.J. No. 2193 (QL), the Ontario Court of Appeal (in a brief endorsement) upheld a trial judge's finding that the defendant media corporation had a “social and moral duty” to publish the article in question. Other cases have adopted the view that qualified privilege is available to media defendants, provided that they can show a social or moral duty to publish the information and a corresponding public interest in receiving it: Leenen v. Canadian Broadcasting Corp. (2000), 48 O.R. (3d) 656 (S.C.J), at p. 695 aff'd (2001), 54 O.R. (3d) 612 (C.A.), and Young v. Toronto Star Newspapers Ltd. (2003), 66 O.R (3d) 170 (S.C.J.), aff'd (2005), 77 O.R. (3d) 680 (C.A).”

Media has an obligation to provide the information to the public. Self-imposed censorship by the media is corruption of our society and it cannot be permitted under any circumstances. We are no longer so naive as to expect a completely unbiased media, as businesses form alliances and in turn pay dues on favours received. Politics is a business which has the power to demand such alliances and therefore extends massive influence on the media. Yet extending influence is completely different in nature to complete censorship.

In St. Catharines, Ontario every word of the Charter of Rights and Freedoms has been sold and forced to conform to corruption of free speech and thought. As alluded to earlier this is the centre of the action before the courts here. Brian McMullan will take the stand under oath and answer all the questions as demanded. In addition to McMullan absolute proof will be provided before the court of a system of censorship put in place which must be torn down. It is an opportunity that will not be allowed to pass.

Our public officials are elected by the public and are accountable to the public on every issue which in any way may or may not affect the public. Secrecy is unacceptable and full accountability demanded. Free flowing comment, the open exchange of information and discussion of facts are cornerstones of our democratic society. The Supreme Court of Canada in its decision of WIC Radio Ltd v. Simpson in paragraph 75 states: “People who voluntarily take part in debates of matters of public interest must expect reaction from the public. Indeed, public response will often be one of the goals of self-expression. In the context of such debates (and the risk of mixing metaphors), public figures are expected to have a thick skin and not to be too quick to cry foul when the discussion becomes heated. This is not to say that harm to one's reputation is the necessary price of being a public figure. Rather, it means that what may harm a private individual's reputation may not damage that of a figure about whom is known and who may have had ample opportunity to express his or her own contrary views.”

Public life brings with it public attention and accountability. In this case the issues extend beyond a public official hiding behind a lawyer and intimidation. Here the media has become a willing partner in the most unacceptable alliance imaginable by providing a self-imposed blanket of censorship. It is time to walk the halls of our Canadian Justice System and open all the doors to expose this corruption of our society.

There is a need to protect reputation against wild and intrusive media, against baseless accusations or innuendo. At the same time the over zealous demand to protect reputation only becomes a cover for those who have something to hide and the threat of litigation only becomes harassment and intimidation.

I leave the close to our Supreme Court of Canada once again and the Grant v. Torstar Corporation decision paragraph 62, and wait for the opportunity to stand before the court to defend against this harassment, intimidation and threat by Mayor Brian McMullan.

The protection offered by a new defence based on conduct is meaningful for both the publisher and those who reputations are at stake. If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in pubic communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. A defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation. As Kirby P. stated in Ballina Shire Council v. Ringerland (1994), 33 N.S.W.L.R. 680 (C.A), at p. 700: “The law of defamation is one of the comparatively few checks upon [the media's] great power.” The requirement that the publisher of defamatory material act responsibly provides accountability and comports with the reasonable expectations of those whose conduct brings with them the sphere of public interest. People in public life are entitled to expect that the media and other reporters will act responsibly in protecting them from false accusations and innuendo. They are not, however, entitled to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose.”

Statement of Claim served by Christopher Bittle for Mayor Brian McMullan

Statement of Defence by Alexander Davidoff 

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