The seven current and former NPA board members ordered to pay ex-Vancouver mayor Kennedy Stewart’s legal costs are considering an appeal.
Last July, Justice Wendy Baker threw out their defamation lawsuit when she ruled Stewart acted in the public interest and without malice by publishing a news release in early 2021 alleging NPA members had ties to the alt-right.
The parties made written submissions to Baker on costs last fall. In a March 20 written decision, Baker ordered David Mawhinney, Christopher Wilson, David Pasin, Phyllis Tang, Angelo Isidorou, Federico Fuoco and Wesley Mussio to pay Stewart’s $100,000 legal costs, but not damages.
“The sad part of this ruling is that the court, rightly or wrongly, is endorsing that political opponents can participate in an American-style character assassination on their foes and actually benefit from doing so in the form of cost penalties,” said lawyer and ex-NPA director Mussio. “The judgment, if upheld in the Court of Appeal, encourages political foes to have a field day on one other. Is that Canadian? I do not feel that this is healthy for democracy in Canada but nonetheless, the NDP instituted this legislation to protect politicians and the court is required to make tough decisions to uphold it.”
Mussio referred to the Protection of Public Participation Act, the unanimously passed 2019 statute that Stewart relied upon to quash the defamation case against him. Then-attorney general David Eby said the law was intended to protect people from costly lawsuits that aim to limit or stifle criticism or opposition to matters of public interest.
In her ruling in favour of costs, Baker wrote that the defamation claim had substantial merit, but the plaintiffs did not prove they were harmed and Stewart did not make the statements with malice. Stewart alleged the action was brought in bad faith or for an improper purpose.
“I do not agree that Mr. Stewart could be characterized as a smaller and more vulnerable party than the NPA directors. Similarly, I do not agree that the NPA could be properly characterized as a large and powerful entity,” Baker wrote. “Nevertheless, it is clear that the NPA and Mr. Stewart were in a political competition, and the filing of this notice of civil claim did serve to limit Mr. Stewart’s political expression from the time he learned of the claim in February 2021, until this claim was dismissed in the summer of 2022, a state of affairs which could easily be seen as politically advantageous to the plaintiffs and the NPA.”
The judge agreed with Stewart that the plaintiffs caused distress when they made conflict of interest allegations against three different lawyers Stewart hired. There was no application to disqualify Stewart’s third lawyer, David Sutherland.
“The positions taken by the plaintiffs in relation to Mr. Stewart’s choice of counsel certainly increased Mr. Stewart’s costs, and caused him anxiety,” Baker wrote. "I am satisfied that the plaintiffs took the positions they did for strategic reasons, in an inappropriate attempt to limit and thwart Mr. Stewart’s defence.”
Baker said the issue in deciding costs was whether the plaintiffs’ case was about reputation and public expression or whether it was a strategic lawsuit against public participation. She ruled it was the latter.
"In light of the fact that I have ordered full indemnity costs in favour of Mr. Stewart which he states, in his affidavit sworn Sept. 19, 2022, total in excess of $100,000, I find it would not be appropriate to order damages in favour of the defendant. I am satisfied that the full indemnity costs I have ordered fully addresses any harm to Mr. Stewart arising from this action.”
In the court of public opinion, however, both sides of the case lost severely in the Oct. 15 civic election.
Former NPA candidate Ken Sim defeated Stewart for the mayoralty in a landslide. None of Stewart’s Forward Together candidates was elected to city council.
The NPA was similarly shut out. Even its only incumbent, Melissa De Genova, was defeated when Sim’s new party, ABC Vancouver, won all but three seats on city council.
Leaks from the Canadian Security Intelligence Service reported in the Globe and Mail suggest Stewart’s campaign suffered from meddling by Tong Xiaoling, China’s former consul general.
NPA mayoral candidate John Coupar quit just over two months before election day and was replaced by parachute candidate Fred Harding, a former West Vancouver Police officer who lives in Beijing and promotes Vancouver real estate to Chinese investors. Harding finished a distant fifth place.
The most media attention Harding and the NPA team got during the election period was when a Provincial Court judge allowed them to use Chinese characters beside their names on the ballot.
Meanwhile, also on Tuesday, Elections BC fined Stewart’s campaign $500 for election advertising without the required financial agent authorization statement.
Elections BC received Sept. 28 and Oct. 4 complaints about Stewart robocalls and texts that lacked the name of the campaign’s financial agent and the financial agent’s contact information.
The investigator found Stewart’s campaign spent $5,500 for all texts and $500 for a script that lacked the required authorization statement.
Investigator Adam Barnes could have fined Stewart’s campaign up to $10,000. He opted for the $500 penalty because all 13 telephone scripts and four out of five text scripts contained the authorization statement, the campaign amended the ad where possible and it had not been the subject of a previous fine.