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COURT FILE NUMBER

COURT

JUDICIAL CENTRE

PLAINTIFFS

DEFENDANTS

DOCUMENT

1203 03498

COURT OF QUEEN'S BENCH OF ALBERTA

EDMONTON

MATTHEW MEIER, RACKNINE INC.

NEW DEMOCRATIC PARTY, PATRICK MARTIN, also known as PAT MARTIN

REPLY TO DEFENCE

Form 12

Clerk's Stamp

ADDRES S FOR SERVIC E PARLE E McLAW S LLP

AND CONTACT -1-NFORMA-Tl-ON-G F PARTY FILING THIS DOCUMENT

Barristers & Solicitors tSOO-Marorife-Ptcrce 10180-101 Street Edmonton, AB T5J 4K1 Attention: R, Justin Matthews Telephone: (780) 423-8514 Facsimile:-(780) 423-2870 File Number: 69246-3/RJM

This is the Reply of the Plaintiffs to the Statement of Defence filed by the New Democratic Party on May 29, 2012 ("NDP's Defence") and to the Statement of Defence filed by Patrick Martin on May 293 2012 ("Martin's Defence").

Statement of facts relied on;

1.

In

reply to

paragraph

1

of

the

NDP's

Defence, the

Plaintiff disputes that the

Defendant

New

Democratic

Party

("NDP")

is

correctly

identified

as

the

New

Democrats' Association of Canada ("NDAC"). The NDP is a separate entity with the capacity to be sued as a registered party under the Elections Act, S.C. 2000, c. 9, including section 504 thereof.

2.

In reply to paragraphs 7, 8 and 9 of the NDP's Defence and to paragraphs 8, 9 and 10 of Martin's Defence, the Plaintiffs have not alleged that the corporate entity of the NDAC, requested, authorized or encouraged the Defendant Patrick Martin ("Martin") to make the defamatory statements as set out in the Amended Statement of Claim. In paragraphs 32-35 of the Amended Statement of Claim, the Plaintiffs allege that Martin spoke on behalf of the NDP, which has been admitted in paragraph 9 of the NDP's Defence and paragraph 11 of Martin's Defence.

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3.

In reply to paragraph 10 of the NDP's Defence, the NDP has admitted that the words quoted in paragraphs 13, 14, 15 and 18 of the Amended Statement of Claim were defamatory through their agent Martin in his statement made on behalf of the NDP on April 16,2012.

4.

In reply to paragraph 11 of the NDP's Defence, the Plaintiffs dispute that the words quoted in paragraphs 13, 14, 15 and 18 of the Amended Statement of Claim fell within any duty to comment on matters of public interest of the NDP.

5.

In reply to paragraph 12 of the NDP's Defence and paragraph 13 of Martin's Defence, the Plaintiffs dispute that the listed facts were "widely known" by the public prior to the defamation of the Defendants. Many of those facts referred to by the Defendants only became "widely known" by the public in part by the Defamatory publications of the Defendants. In particular:

 

a.

Public knowledge that "RackNine was contacted by Elections Canada regarding allegations that a customer of RackNine may 'have used automated dialing services in a manner that contravened the Elections

Act1 was contemporaneous with the initial defamatory publications of the

_

_

_ Defendants-aod--ef*Jy-beeaffle-!^^ publications of the Defendants;

aeramafoTy"

b. Although it was public knowledge that "RackNine was a company operating out of Edmonton Alberta, and providing services for placing automated phone calls to large numbers of people, particularly as part of political campaigns" prior to February 23, 2012, it only became widely known following the defamatory publications of the Defendants;

c. Public knowledge that "RackNine was served with a Production Order on November 23, 2011 by an investigator of Elections Canada" was contemporaneous with the initial defamatory publications of the Defendants and only became "widely known" following the defamatory publications of the Defendants;

d. Public knowledge that "RackNine was in fact the company through which the misleading phone calls were placed" was contemporaneous with the initial defamatory publications of the Defendants and only became "widely known" following the defamatory publications of the Defendants;

e. Although it was public knowledge that "RackNine was a company employed by the Conservative Party of Canada to place automated phone calls for political purposes" prior to February 23, 2012, it only became widely known following the defamatory publications of the Defendants;

f. It is incorrect that "RackNine mainly worked for the Conservative Party of Canada". The Conservative Party of Canada is one of many political parties that RackNine had a business relationship with as a service provider prior to the defamatory publications of the Defendants.

g. Although it was public knowledge that "Mr. Meier was a supporter of the Conservative Party of Canada" prior to February 23, 2012, it only became widely known following the defamatory publications of the Defendants;

h. Although it was public knowledge that "Mr. Meier posted on his Facebook page a picture of RackNine's new services, calling them the Political Super Weapon" prior to February 23, 2012, it only became widely known following the defamatory publications of the Defendants.

6.

In reply to paragraphs 13 and 15 of the NDP's Defence and paragraphs 14 and 16 of Martin's Defence, the letters sent to the NDP and to Martin demanded an immediate apology, the particulars of which include:

a. In the letter to Martin, dated February 23, 2012: "We demand an immediate apology [emphasis added] to be delivered to this office as well "

as the following national media outlets

b. In the letter to the NDP, dated February 24, 2012: "As stated in our correspondence to Mr. Martin, we demand an immediate apology [emphasis addedl to be

~~

national media outlets

"

7.

In further reply to paragraphs 13 and 15 of the NDP's Defence and paragraphs 14 and 16 of Martin's Defence, the Plaintiffs' did not even receive the courtesy of an acknowledgement that the demand for an apology had been received from the Defendants. The NDP did not even acknowledge the demand for apology until April 2, 2012J 30 days following the filing of the Statement of Claim and the original deadline for the Defendants to respond. Even following the demand for an apology the Defendants continued to defame the Plaintiffs, some of which is set out in paragraphs 18, 21 and 22 of the Amended Statement of Claim. Martin explicitly refused to apologize on at least two occasions as set out in paragraphs 19 and 21 of the Amended Statement of Claim. The Defendants had an entire week, ample opportunity to provide an apology or communicate an intention to do so. Instead the Defendants used the opportunity to continue defaming the Plaintiffs while waiting and hoping for facts to surface which would determine the truth of their statements which were not forthcoming. Given the conduct of the Defendants, the Plaintiffs had no reason to believe an apology would be forthcoming prior to the filing of the Statement of Claim on March 2, 2012.

8.

In reply to paragraph 14 of the NDP's Defence and paragraph 15 of Martin's DefenceJ blogger Stephen Taylor ("Taylor") received copies of the letters demanding apologies from the Defendants as part of the Plaintiffs' reasonable mitigation efforts to dispute the defamatory publications of the Defendants and to encourage them to apologize in a prudent and expedient manner.

9.

In reply to paragraphs 16 and 17 of the NDP's Defence and paragraphs 17 and 18 of Martin's Defence, Taylor only received a copy of the Statement of Claim following service of the document to the Defendants. The Statement of Claim is a publicly

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accessible document and the delivery of same to Taylor was a part of the reasonable mitigation attempts by the Plaintiffs to publicly and reasonably defend against the defamatory statements of the Defendants. The Plaintiffs have no intention or interest in publicly embarrassing the Defendants and no motivation in this action apart from publicly repairing their reputation that has been damaged by the Defendants.

10. In reply to paragraph 18 of the NDP's Defence, the Plaintiffs dispute that the NDP leadership selection convention is an issue which in any way mitigates or absolves the failure to act on behalf of the Defendants. As the official opposition in federal parliament and a poiitical party with aspirations to form a national government, the NDP is a sophisticated party with the capacity to manage more than a single issue at once, and any contention to the contrary is an affront to common sense. Paragraph 19 of the NDP's defence demonstrates that the NDP was capable of attending to the defamatory publications as early as March 6, 2012, prior to the NDP leadership selection convention. Even if the NDP was unable to fully address the demand for apology prior to the NDP leadership convention, which is a preposterous allegation, a mere acknowledgement of the demand could have been delivered to the Plaintiffs.

NDP^s Defence and paragraph 19 of Defence, the apology reproduced therein contains the following admissions:

Martin's

a. That the Defendants defamed the Plaintiffs with words carrying the

Plaintiffs were criminals and guilty, of

defamatory

meaning

that the

electoral fraud;

b. That the Defendants' defamation of the facts; and

Plaintiffs was unsupported

by

c. That the Defendants' defamation of the Plaintiffs damaged the reputations of the Plaintiffs.

12. In reply to paragraphs 21-25 of the NDP's Defence and in reply to paragraphs 20-24 of Martin's Defence, despite the issuance of an apology by Martin on April 16, 2012, the reputations of the Plaintiffs remain damaged by the Defendants' defamation. ' Even following the apology, the Plaintiffs have remained the subject of public ridicule and contempt.

Any matters that defeat the defence of the defendants:

NDP Liability for Martin's Defamation

13. The Defendants have admitted that Martin acted as an agent of the NDP as set out in paragraph 2 herein.

Admission of Defamatory Meaning

14.The Defendants have admitted to the defamatory meaning alleged in the Amended Statement of Claim and as described in paragraph 11 herein.

No Fair Comment

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15. The defamation of the Plaintiffs by the Defendants, and as admitted by the Defendants was a statement of fact that the Plaintiffs criminally participated in a conspiracy to commit electoral fraud.

16. To the extent that the defamation of the Plaintiffs by the Defendants was comment, the Defendants have admitted that it was unsupported by facts, as set out in paragraph 11 herein.

No Truth

17. The Defendants' defamation of the Plaintiffs was not "true in substance" as claimed in paragraph 31 of the NDP's Defence and paragraph 27 of Martin's Defence. The Defendants have admitted that the defamation of the Plaintiffs was "wholly and unequivocally false" as set out in paragraph 1 1 herein.

No Privilege

and make"

baseless accusations against the Plaintiffs of participating

Similarly, the world at large had no interest in receiving the Defendants' reports of conspiracy theories and baseless accusations.

in electoral

fraud.

19. Any privilege that the Defendants may have had due to a duty to publish material related to RackNine and the "robo-call" investigation was exceeded by the Defendants.

20.Any privilege that the Defendants may have had due to a duty to publish material related to RackNine and the "robo-cai!" investigation is lost due to improper motives of political gain and malice towards the Plaintiffs.

Irresponsible Communication

21. The Defendants were irresponsible in communicating material defamatory of the Plaintiffs, in particular;

a. The defamatory meaning as admitted by the Defendants was extremely damaging to the Plaintiffs and carried the highest degree of diligence;

b. There was no urgency for the Defendants to name who the Defendants

suspected of perpetrating electoral fraud nor was there any urgency for the Defendants to publicize their conspiracy theories as the Elections Canada Investigation was under way. Had the Defendants waited to publicize their accusations and conspiracy theories they would have

in an electoral

learned the truth, that the Plaintiffs were not participants fraud conspiracy;

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c. The Defendants relied upon no sources to accuse Plaintiffs of participation in an electoral fraud conspiracy apart from circumstantial evidence of Meier's persona! political affiliation and RackNine's business relationship with the Conservative Party of Canada;

d. The Defendants never sought the Plaintiffs explanation prior to defaming the Plaintiffs;

e. Other political parties and other Members of Parliament were able to responsibly communicate on the "robo-call" investigation in a manner that did not defame the Plaintiffs and it was unnecessary for the Defendants to include the defamatory material apart from serving motives of political gain and malice towards the Plaintiffs;

f. The substance and tone of the Defendants' defamation of the Plaintiffs was exceptionally inflammatory and sensationalistic and was calculated to cause damage to the Plaintiffs for the political gain of the Defendants.

Continued Malice

22. In addition to the malice of the Defendants towards the Plaintiffs as set out in paragraphs 25-27 of the Amended Statement of Claim, the Defendants have continued to demonstrate malice in their conduct of this action. In particular, the Statements of Defence of the Defendants are high-handed and malicious, stating:

a. That the Defendants' defamation of the Plaintiffs was "substantially true" despite having admitted that it was "unequivocally false";

b. Restating the Defendant's conspiracy theories targeting Meier because of

•his personal political affiliations and RackNine

because of its business

relationship with the Conservative Party of Canada;

c. Disparaging the Plaintiffs' action to clear their reputations as motivated to embarrass the Defendants;

d. Dismissing

the

Plaintiffs'

disproportionate";

prayer

for

relief

as

"abusive

and

grossly

e. Referring to the Plaintiffs' action as "ill-conceived and abusive".

Nominal Mitigation

23. The Plaintiffs plead and reiy upon section 4 of the Defamation Act R.S.A. 2000, c. D- 7, and in particular, the Defendants cannot plead mitigation since:

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a.

the

Defendants'

ongoing denials

of

liability

contained

in

the

NDP's

Defence and Martin's Defence;

 

b.

The unreasonable delay of the Defendants in offering an apology to the Plaintiffs, as set out in paragraphs 6 and 7 herein; and

c.

The Defendants' ongoing malice towards the Plaintiffs, some of which is detailed in paragraph 22 herein;

Remedy sought:

 

24.Judgment and other

relief claimed against the

Defendants as set out

in

the

Amended Statement of Claim, together with costs.

25. Dismissal of the claim of the Defendants for costs against the Plaintiffs, on a full indemnity basis, or at all.