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.”
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| 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,
mayorgate.blogspot.com, 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
Send comments to: demtruth@gmail.com
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