Alberta’s highest court has ordered the National Post to pay an uncommonly high $450,000 cost award for publishing a defamatory column a decade ago. The Court of Appeal faulted Post lawyers for failing to promptly disclose evidence involving the article by then-columnist Don Martin.
“The production of records is a key aspect of civil litigation in Alberta,” wrote the Court; “It is no excuse to say this was done to protect a journalist’s source or at the request of the client.”
Courts earlier ordered the publisher to pay $200,000 in damages and $250,000 in costs to Arthur Kent, former foreign correspondent for NBC maligned in a 2008 column. The Court of Appeal increased the cost award to $450,000 after describing the column as a “devastating attack on Mr. Kent” with “scandalous allegations”.
The daily on February 12, 2008 published the article headlined Alberta’s Scud Stud A ‘Dud’ On The Campaign Trail that was critical of Kent’s campaign for a seat in the Alberta legislature. The column referred to Kent as a “problem candidate”, a “campaign bad boy”, “self-absorbed” and a “dud” who once was “television eye-candy for millions of women”: “My how times have changed,” wrote Martin.
The publisher kept the article in its website archives until November 6, 2012, more than four years after Kent sued for defamation.
“Any More Dirt?”
The newspaper failed to speak to the candidate prior to attacking his candidacy, gave Kent only a few hours to respond to a vague email that the article was about to be published – “Could Arthur give me a shout?” wrote Martin – then declined to publish Kent’s rebuttal. Courts ruled the column was based in part on an apparently fabricated quote from an unnamed source, exaggerated negative references, and statements that “do not meet the test for truth or reportage”.
“Mr. Martin was not diligent in trying to verify the allegations contained in the article,” wrote Court of Queen’s Bench Justice Jo’Anne Strekaf in her original 2016 ruling; “The article was negative, sarcastic in tone and lacked balance”.
Evidence showed the column followed confidential emails between Martin and Kristine Robidoux, legal counsel to Kent’s campaign. Robidoux in 2014 was suspended for four months as a “disgrace” to the legal profession by the Law Society of Alberta for betraying her client’s confidences to the newspaper columnist.
Martin in a February 12, 2008 email to Ms. Robidoux wrote: “I see the death spiral for AK continues. Any more dirt? Column runs tomorrow.” Replied Robidoux: “OMG it’s all bad.”
Judges noted National Post lawyers failed to promptly disclose the emails over the course of the litigation as required under Court rules. “The failure of the respondents to disclose these highly relevant emails, compounded by the opaque redaction of the emails when they were finally produced, represented a fundamental breach of the respondents’ obligations,” wrote the Court of Appeal.
Kent, now a Calgary journalist, lost his election bid by 1,012 votes. Martin left the National Post in 2010 and is host of the CTV News Channel program Power Play.