'The action was designed to silence the defendant’ writes judge
Jan 08, 2018 by Melinda Cheevers
Niagara This Week - St. Catharines
ST. CATHARINES — Ed Smith said he’s "absolutely happy" with a judge’s decision awarding him 100 per cent of his legal costs accrued in defending himself in a defamation lawsuit.
The St. Catharines man was facing a pair of $100,000 lawsuits from the Niagara Peninsula Conservation Authority and its former chief administrative officer Carmen D’Angelo, as well as a $100,000 suit brought forward by Niagara-on-the-Lake businessman William Montgomery. The suits, all dismissed in November by Justice James Ramsay, stemmed from an unsigned 45-page report titled, A Call for Accountability at the Niagara Peninsula Conservation Authority.
In a written ruling handed down Friday, Ramsay awarded Smith full legal costs — $131,076.38 from the NPCA and $48,172 from Montgomery — despite attempts by both parties to have those amounts lessened.
“The action was designed to silence the defendant, who was an annoyance to the authority,” wrote Ramsay. “Its very right to sue was doubtful in law.”
Smith said he believes Ramsay, in his written ruling, is sending a message in awarding 100 per cent of the legal costs.
“He captured, with his language, that the NPCA used this action to try and silence me, and the use of legal actions to silence the voice of a citizen can’t be allowed,” Smith said Saturday evening.
Smith, a retired Air Force major, admitted he’s never been through something like this before and wasn’t sure what to expect. His lawyer, Erin Pleet, tried to manage his expectations and warned him he shouldn’t be surprised if the judge tried to find some sort of middle ground between what they were asking for — full costs — and what the NPCA was hoping to pay — no more than $60,000.
“I think this is a tremendous victory,” Smith said of the decision, but he stopped short of referring to it as vindication. “I think the process is going to be quite a bit longer than what’s happened thus far. There are more revelations to come. Vindication is going to be a steady process over the next few months.”
While no name appears on the report, Smith was targeted for potential legal action by the NPCA for distributing the document to third parties, including local politicians and media outlets. At issue, within the report, was an implication that two contracts — one between Montgomery’s company and the NPCA foundation; the other between the Niagara Region’s Police Services Board and D’Angelo’s consulting business D’Angelo Performance Management ‑ may have been given consideration for each other, or "swapped."
There was also an inaccurate allegation within the report questioning whether D’Angelo’s company was licensed to do business in Ontario, citing an inaccurate online business directory listing that had him listed as the head of an Australian company, DPM Consulting.
In a written statement, NPCA board chair Sandy Annunziata said these uncorrected statements were at issue.
"The board was appraised every step of the way and were very receptive to allowing Mr. Smith to correct the most offensive statements. Through the NPCA's solicitor, three attempts were made before ever engaging the courts. Other than to confirm that Mr. D'Angelo was not the head of an Australian company and wasn't evading taxes, he refused to do so. The board made a decision to ensure that a forged document, untrue, defamatory, damaging and harmful statements directed at the board and its employees were not allowed to stand. The court finally corrected the record. The board has been advised of the cost. No one should be happy about a $131,076 bill that could've been avoided.”
The NPCA had put several demands to Smith in November 2016 before proceeding with legal action: he deliver a full and unqualified apology and retraction in a form approved by the authority; he deliver a written undertaking not to distribute the document to any other person and not to refer to it publicly in the future, and not to make similar defamatory statements about the NPCA in the future; and he provide the identity of the authors of the document, and if known the person who created the incorrect Zoom Info Profile report.
“There was only one stipulation he was willing to meet, based on the information we provided showing he was working from a forged document,” said Michael Reles, communications manager with the NPCA. “He wasn’t really correcting the other information we told him was false. The contract swapping, for example, was not offered as one of his corrections.”
Smith, Reles said, was only willing to meet one of the stipulations set forward by the NPCA. Any sort of settlement, he said, could have been reached had he been willing to come to the table.
“We started in two different places though,” said Reles. “So we went forward with the defamation suit because he was unwilling to correct the record to the satisfaction of the board and our legal counsel, based on their advice.”
It appears Ramsay, according to his written decision on the awarding of costs, saw it differently noting that the NPCA’s "over-the-top reaction" got in the way of an early resolution of the controversy.
“In correspondence from counsel for the defendant it appears that he was willing to retract part of his report. In different circumstances negotiations might have gone farther. The defendant cannot be blamed for their failure,” he wrote.
St. Catharines regional Coun. Bruce Timms and current NPCA board member was chair when the board opted to pursue legal action against Smith. Speaking to Niagara This Week, Timms said he is glad Smith will not be “personally out of pocket” on an issue he’s very sincere about.
“We have all learned something from the ruling,” said Timms, adding the judge said politicians need to have a thick skin and cannot sue a citizen for defamation, “no matter how inaccurate the facts are. And the facts were inaccurate, as the judge pointed out, but that didn’t matter.”
Despite the judge characterizing the NPCA’s action as an attempt to silence Smith, Timms argued the issue was not that he was critical of them.
“The issue was that … the facts were wrong. It defamed our staff,” he said. “Criticism is one thing. Inaccuracy is a different thing. That’s where we thought it crossed the line.”
Smith sees it differently.
“The judge used his two decisions to send a message loud and clear that under no circumstances will there be an impediment of freedom of speech,” he said.
— With files from Paul Forsyth