Kent v. Martin et al., 2013 ABQB 436

• Judge: Poelman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 01, 2013
• Citations: 2013 ABQB 436;(2013), 567 A.R. 237 (QB)

Kent v. Martin (2013), 567 A.R. 237 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.074

Arthur Kent (plaintiff) v. Don Martin, The National Post Company, CanWest Publishing Inc., National Post Holdings Ltd., CanWest Media Works Inc., Kristine Robidoux, Q.C., Roderick Love, Alan Hallman, Bruce Thorpe, Bill Smith, and Does 5-10 (defendants)

(0801 08414; 2013 ABQB 436)

Indexed As: Kent v. Martin et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Poelman, J.

August 1, 2013.

Summary:

The plaintiff, a journalist with international prominence, sought election to a seat in the Alberta Legislature as Progressive Conservative candidate in the 2008 general election. He was a high-profile candidate who attracted attention from the news media. A national newspaper columnist wrote a scathing column on the plaintiff's campaign, in which campaign employees Love, Hallman, Thorpe and Smith (along with another defendant) all had some direct or indirect role as sources. The plaintiff sued, alleging they were parties to a conspiracy to injure his reputation and damage his campaign for election. Love, Hallman, Thorpe and Smith applied for summary judgment dismissing the action against them.

The Alberta Court of Queen's Bench allowed the application and dismissed the action.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - [See second Practice - Topic 5702 ].

Practice - Topic 5701

Judgments and orders - Summary judgments - General - The Alberta Court of Queen's Bench discussed summary judgment in circumstantial conspiracy cases - See paragraphs 70 to 74.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff, a journalist with international prominence, sought election to a seat in the Alberta Legislature as Progressive Conservative candidate in the 2008 general election - He was a high-profile candidate who attracted attention from the news media - A national newspaper columnist wrote a scathing column on the plaintiff's campaign, in which campaign employees Love, Hallman, Thorpe and Smith (along with another defendant) all had some direct or indirect role as sources - The plaintiff sued, alleging they were parties to a conspiracy to injure his reputation and damage his campaign for election - Love, Hallman, Thorpe and Smith applied for summary judgment dismissing the action against them - The Alberta Court of Queen's Bench allowed the application and dismissed the action - The tort of conspiracy required concerted action - For a defendant to be party to a conspiracy, he or she had to have known what acts would result or would probably result from the parties' agreements - The applicants had demonstrated that there was no genuine issue of material fact requiring trial in respect of this element of conspiracy - While the applicants might not have behaved admirably, their evidence indicated that each of them acted individually, rather than in concerted fashion - Interactions among them and between various of them did not amount to concerted action in furtherance of a common objective - The onus having shifted to the plaintiff, he failed to show on the evidence that there remained a genuine issue - There was no triable issue on whether these defendants made an agreement together to act unlawfully or to injure the plaintiff, or that they took concerted action pursuant to such an agreement - See paragraphs 78 to 100.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff, a journalist with international prominence, sought election to a seat in the Alberta Legislature as Progressive Conservative candidate in the 2008 general election - He was a high-profile candidate who attracted attention from the news media - A national newspaper columnist wrote a scathing column on the plaintiff's campaign, in which campaign employees Love, Hallman, Thorpe and Smith (along with another defendant) all had some direct or indirect role as sources - The plaintiff sued, alleging that Thorpe, as campaign manager, breached his fiduciary duties towards the plaintiff - Thorpe applied for summary judgment dismissing the action against him - The Alberta Court of Queen's Bench allowed the application and dismissed the action - There was no genuine issue to be tried - Thorpe was a volunteer campaign manager, not in a position to unilaterally exercise power or discretion over the plaintiff's interests - The plaintiff's testimony, in fact, would suggest that Thorpe's role was less significant than his title would indicate - The plaintiff might have cause for complaint about how Thorpe acted at various times during the election campaign - However, not every disagreement about someone's personal conduct, whether in politics or other spheres of human interaction, could be addressed by the courts - There was no basis for the allegations that Thorpe breached fiduciary duties or duties of confidence of a nature that would give rise to a cause of action - See paragraphs 101 to 104.

Practice - Topic 5715

Judgments and orders - Summary judgments - Burden on applicant - The Alberta Court of Queen's Bench discussed the test for summary judgment and stated that "a correct reading of the authorities is that if the applicant's evidence shows no genuine issue of material fact requiring trial, the respondent must show by evidence that there remains a triable issue, or arguable merit to the case. The characterization of the respondent's onus, when the evidentiary burden has shifted, of establishing 'a real chance of success' leaves unclear what final test the court must apply in its ruling. It is important to distinguish between evidentiary onuses that may apply at various stages of the application, and the ultimate or legal burden applicable to the application as a whole. The ultimate question is always whether there is a genuine issue for trial, and thus the respondent never need show something more than that to defeat a summary judgment application." - See paragraphs 66 to 68.

Practice - Topic 5715.1

Judgments and orders - Summary judgments - Burden on respondent - [See Practice - Topic 5715 ].

Torts - Topic 5703

Conspiracy - General - Elements - The Alberta Court of Queen's Bench discussed the elements of the tort of conspiracy - See paragraphs 58 to 64.

Torts - Topic 5703

Conspiracy - General - Elements - [See first Practice - Topic 5702 ].

Cases Noticed:

Mraiche Investment Corp. v. McLennan Ross LLP et al. (2012), 524 A.R. 151; 545 W.A.C. 151; 2012 ABCA 95, refd to. [para. 58, footnote 1].

Maguire v. Calgary (City) (1983), 43 A.R. 268 (C.A.), refd to. [para. 59, footnote 2].

Capital Estate Planning Corp. v. Lynch et al. (2011), 510 A.R. 244; 527 W.A.C. 244; 2011 ABCA 224, refd to. [para. 60, footnote 3].

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al. (1994), 151 A.R. 1 (Q.B.), refd to. [para. 60, footnote 4].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 61, footnote 5].

Golden Capital Securities Ltd. v. Holmes et al. (2004), 205 B.C.A.C. 54; 337 W.A.C. 54; 33 B.C.L.R.(4th) 1; 2004 BCCA 565, refd to. [para. 61, footnote 6].

Culzean Inventions Ltd. v. Midwestern Broom Co., Midwestern Marketing Canada Ltd., Semenchuk, Janzen, Glazier and Astle (1984), 31 Sask.R. 180 (Q.B.), refd to. [para. 62, footnote 9].

Star Cabs Ltd. v. Casawn Enterprises Inc., Wallace and J.W. Properties Inc. (1982), 21 Sask.R. 182 (Q.B.), refd to. [para. 62, footnote 9].

Murphy Oil Co. et al. v. Predator Corp. et al. (2006), 384 A.R. 251; 367 W.A.C. 251; 2006 ABCA 69, affing. (2004), 365 A.R. 326; 2004 ABQB 688, refd to. [para. 63, footnote 10].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191, refd to. [para. 64, footnote 12].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 65, footnote 13].

Boudreault v. Barrett et al. (1998), 219 A.R. 67; 179 W.A.C. 67; 1998 ABCA 232, refd to. [para. 67, footnote 14].

Stoddard v. Montague et al. (2006), 412 A.R. 88; 404 W.A.C. 88; 2006 ABCA 109, refd to. [para. 67, footnote 15].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 67, footnote 16].

Sima et al. v. Hui et al., [2008] A.R. Uned. 129; 90 Alta. L.R.(4th) 360; 2008 ABQB 104, refd to. [para. 67, footnote 17].

Dasilva v. McLean (2011), 527 A.R. 307; 2011 ABQB 618 (Master), refd to. [para. 67, footnote 18].

Kwan v. Superfly Inc. et al. (2011), 520 A.R. 234; 2011 ABQB 343, refd to. [para. 68, footnote 19].

Lonrho Ltd. v. Shell Petroleum Co., [1982] A.C. 173; [1981] 2 All E.R. 456 (H.L.), refd to. [para. 97, footnote 24].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sydney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), para. 2.78 [para. 73, footnote 23].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (3rd Ed. 2010), pp. 723, 724 [para. 97, footnote 24]; 728 [para. 62, footnote 9].

Klar, Lewis N., Tort Law (5th Ed. 2012), p. 730 [para. 97, footnote 24].

Counsel:

M.G. Bates, for the plaintiff, Arthur Kent;

M.D. Mysak, for the defendant, Bruce Thorpe;

C.D. Hermanson, for the defendant, Bruce Thorpe;

D.A. Downe, Q.C., for the defendant, Bill Smith;

B.J. Kormos, for the defendant, Alan Hallman;

B.S. Dobbin, for the defendant, Roderick Love.

This application was heard on June 4 and 5, 2013, by Poelman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on August 1, 2013.