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No. S-149646
Vancouver Registry

- - IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:
RANDAL HELTEN,ALBERT CHIN,TERRY GLENN
MORDEN also known as TERRY GLENN MARTIN,
RICHARD J.G. NANTEL and VIRGINIA A. RICHARDS
PETITIONERS
AND:
GREGOR ROBERTSON and GEOFF MEGGS
RESPONDENTS

NOTICE OF APPLICATION
FORM32 (RULE 8-1(4))
B.C. REG. 241/2010, Scii. A, s. 3]
Names of applicants: The Respondents, Gregor Robertson and Geoff Meggs
TO:

The Petitioners

TAKE NOTICE that an application will be made by the applicants to the presiding judge or
master at the courthouse at 800 Smithe Street, Vancouver, British Columbia on Monday,
the 2nd day of February,2015 at 9:45 a.m.for the orders set out in Part 1 below.

PART 1: ORDERS SOUGHT

1.

Pursuant to Rules 9-5(1) and 22-2(12) of the Supreme Court Civil Rules and the inherent
jurisdiction of the Court, paragraphs 11 to 13, and Exhibits A, B, D and F of the First
Affidavit of Randal Helten in this case, made December 11, 2014, are struck out.

2.

Pursuant to Rules 9-5(1) and 22-2(12) of the Supreme Court Civil Rules and the inherent
jurisdiction of the Court, paragraphs 5 to 7 of the First Affidavit of Albert Chin in this
case, made December 11, 2014, are struck out.

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3.

Pursuant to Rules 9-5(1) and 22-2(12) of the Supreme Court Civil Rules and the inherent
jurisdiction of the Court, paragraphs 9 to 11 of the First Affidavit of Terry Glen Morden
in this case, made December 11, 2014, are struck out.

4.

Pursuant to Rules 9-5(1) and 22-2(12) of the Supreme Court Civil Rules and the inherent
jurisdiction ofthe Court, paragraphs 5 to 9 ofthe First Affidavit of Richard J.G. Nantel in
this case, made December 11,2014, are struck out.

5.

Pursuant to Rules 9-5(1) and 22-2(12) ofthe Supreme Court Civil Rules and the inherent
jurisdiction ofthe Court, paragraphs 5 and 7 ofthe First Affidavit of Virginia A. Richards
in this case, made December 11,2014, are struck out.

6.

Pursuant to Rules 9-5(1)(d) of the Supreme Court Civil Rules, the within Petition is
struck out in its entirety as an abuse of process, without leave to reapply.

7.

Pursuant to Rule 14(1), the Respondents are awarded their costs of this proceeding,
assessed as special costs or, alternatively, at Scale B.

PART 2: FACTUAL BASIS

1.

The Respondent Gregor Robertson is the duly elected mayor of the City of Vancouver, a
former Member of the Legislative Assembly of British Columbia and a successful
businessman. The Respondent Geoff(rey) Meggs is a duly elected councillor of the City
of Vancouver and a former award-winning journalist and author.

Each of the

Respondents was re-elected to a third successive term in office during the municipal
general election held on November 15, 2014. The Respondents ran under the banner of
and belong to the Vision Vancouver political party ("Vision").
2.

The Petitioners seek various forms of relief under the Vancouver Charter, S.B.C. 1953,
c. 55, including declarations that neither Respondent is qualified to hold his presently
elected office with the City of Vancouver.

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3.

The Petition and supporting affidavits contain false and defamatory allegations and
innuendo. The gravamen of the Petitioner's complaint is that the Respondents are
corrupt. More particularly, the Petitioners allege that the Respondents, as representatives
of Vision, engaged in a "pay to play" scheme with the executive of the Canadian Union
of Public Employees, Local 1004("CUPE Local 1004").
See e.g., Affidavit #1 of V.A. Richards at para. 6 & 7.

4.

The supporting affidavits filed by the Petitioners contain no reliable or admissible

evidence that could support the scurrilous allegations levelled against the Respondents.
Instead, the Petitioners have chosen to swear affidavits replete with inadmissible opinion,
argument and anonymous hearsay.

5.

The Petition and supporting affidavits are so devoid of any evidentiary basis (or legal
merit) that the only reasonable inference for the Court to draw is that this proceeding was
commenced for an improper, collateral purpose, viz.: to damage the Respondents
politically and professionally under the protective cloak of absolute privilege.

PART 3: LEGAL BASIS

The Affidavits are Materially Defective and There is No Evidentiary Basis for the Petition
1.

Rule 22-2(12) and(13)sets out the nature ofthe affidavit evidence a deponent may give:
(12) Subject to subrule (13), an affidavit must state only what a
person swearing or affirming the affidavit would be permitted to
state in evidence at a trial.
(13) An affidavit may contain statements as to the information
and belief ofthe person swearing or affirming the affidavit, if
(a)the source of the information and belief is given, and
(b)the affidavit is made
(i) in respect of an application that does not seek a
final order, or
(ii) by leave of the court under Rule 12-5 (71)(a)
or 22-1 (4)(e).

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2.

The orders sought by the Petitioners are final orders.

3.

In C. (KL.) v. C. (J.), Master Baker provided a useful summary of the jurisprudence on

objectionable affidavits:
Counsel for Mr. C. relies upon F.(J.K.) v. F.(J.D.)(1986), B.C.J.
No. 672; Creber v. Franklin (1993), B.C.J. No. 890; and Webber
v. Wallace (1994), B.C.J. No. 1894. All are decisions of our court.
Shortly stated, in all these cases the court directed that portions of
affidavits be expunged for various reasons. These reasons include:
hearsay upon hearsay, or irrelevance (F.(J.K.) v. F.(j.D.)),
inadmissible opinion, adjectival descriptions, or subjective
descriptions ofreactions (Creber), unidentified witnesses, opinions
regarding motives, or argument(Webber).
2000 BCSC 798 [Emphasis in original]

4.

All these objectionable features are manifest in the Petitioners' affidavits, and the
offending portions ought to be struck out pursuant to Rule 9-5(1).
Jones v. Industrial Wood and Allied Workers ofCanada (Local 1-3567),
2011 BCSC 926 at para. 9 to 17

5.

The first affidavit of Petitioner Randal Helten is particularly noteworthy for its
noncompliance with Rule 22-2(12) and the common law rules of evidence. For example,
at paragraph 9(b)of his affidavit, Mr. Helten purports to lead evidence ofa "secret" audio
recording of a CUPE 1004 membership meeting that allegedly occurred on October 12,
2014, a meeting which Councillor Meggs purportedly attended (the "Audio Recording").

6.

The Audio Recording is the only factual evidence offered by the Petitioners that could
conceivably suggest impropriety by the Respondents.

7.

The difficulty for the Petitioners is this: In the hands of Mr. Helten, the Audio Recording
is, at best, quadruple hearsay. According to Mr. Helten, he obtained the Audio Recording
(quadruple hearsay) from the YouTube website (triple hearsay), which had obtained it
from reporter Bob Mackin (double hearsay) who obtained it from an anonymous source
(hearsay) who allegedly recorded the words spoken therein.

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8.

With this many degrees of separation between Mr. Hetlen and the speakers of the out-ofcourt statements, Mr. Helten could never authenticate the Audio Recording at trial.
(There is no suggestion that Mr. Helten was at the meeting where the words were
spoken.) By simply attaching an electronic file of the recording to his affidavit, Mr.
Helten does not make the Audio Recording admissible as evidence.
R. v. Andalib-Goortani,2014 ONSC 4690 at para. 28 to 34;
R. v. George Jack Giroux, 2013 NWTTC 04(and authorities cited at para.18 to 25);
Ulrich v. Ulrich, 2004 BCSC 95 at para. at 32

9.

It follows that the Petition is without an evidentiary basis and an abuse of the Court's
process; it ought to be struck out pursuant to Rule 9-5(1)(d).
Chernen v. Robertson, 2014 BCSC 1358 at para. 29 to 33.

10.

Given the impropriety of bringing claims of corruption against respected public figures
on the basis of anonymously recorded, quadruple hearsay, the Petition should be struck
without leave to reapply. The Respondents should not be vexed with these allegations
any further.

The Complete Lack of Evidentiary Foundation Justifies an Award of Special Costs

11.

It is submitted that advancing false and defamatory claims against respected public
figures without any evidentiary foundation constitutes scandalous or outrageous conduct.
Further, or in the alternative, such an abuse of process constitutes a milder form of
misconduct deserving of reproof or rebuke. Either way, the Petitioner's conduct in
bringing this proceeding is "reprehensible" and justifies an award ofspecial costs.

12.

A failed allegation in a civil lawsuit of corrupt conduct will more readily justify an award
of special costs against the maker than will other types of unproven allegations.
Abakhan & Associates Inc. v. Golden Arch Resources Ltd., 2012 BCSC 346 at para. 7

13.

Special costs may follow where a claimant fails to ascertain that there is no evidence to
support his or her claim before advancing it.
Crown West Steel Fabricators v. Capri Ins. Services Ltd.,
2003 BCCA 268,227 D.L.R.(4th)574

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614.

No public figure deserves to have their reputation tarnished by baseless allegations of

corruption. In circumstances such as these, where there was no reasonable basis for the
Petitioners to assault the Respondents' integrity and reputation under the cloak of
absolute privilege, the Respondents have few tools available to clear their good names.
An award ofspecial costs is one ofthem.

PART 4: MATERIAL TO BE RELIED ON

1.

The within Petition and affidavits set out in Part 1 ofthis Notice of Application.

The applicants estimate that the application will take 2 hours.

This matter is within the jurisdiction of a master.
El This matter is not within the jurisdiction of a master.
TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to respond to this
notice of application, you must, within 5 business days after service of this notice of application or, if this
application is brought under Rule 9-7, within 8 business days after service ofthis notice of application,
(a)

file an application response in Form 33,

(b)

file the original of every affidavit, and of every other document, that

(i)
(ii)
(c)

you intend to refer to at the hearing of this application, and

has not already been filed in the proceeding, and

serve on the applicant 2 copies of the following, and on every other party of record one
copy of the following:
(i)
(ii)

(iii)

a copy ofthe filed application response;

a copy of each of the filed affidavits and other documents that you intend to refer
to at the hearing of this application and that has not already been served on that
person;
if this application is brought under Rule 9-7, any notice that you are required to
give under Rule 9-7(9).

Date: 20 January 2015

HARPER GREYTIP
(Per Bryan G. Baynham, QC)
Lawyer for the Respondents

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Name and address oflawyer:
HARPER GREY LLP
Banisters and Solicitors
3200 650 West Georgia Street
Vancouver, BC V6B 4P7
Telephone:
Fax No.:
Attention:
File No.:

604 687 0411

604 669 9385
Bryan G. Baynham, QC
131894

To be completed by the court only:

Order made
in the terms requested in paragraphs

of

Part 1 ofthis notice of application

with the following variations and additional terms:

Date:
Signature of Judge Master

131894/2762764.1

APPENDIX
THIS APPLICATION INVOLVES THE FOLLOWING:
discovery: comply with demand for documents
discovery: production of additional documents
other matter concerning document discovery
extend oral discovery
other matter concerning oral discovery
amend pleadings
add/change parties
summary judgment
summary trial
service
mediation
adjournments
proceedings at trial
case plan orders: amend
case plan orders: other
experts

131894/2762764.1