MONDAY was the first day of arguments in a lawsuit filed by an unsuccessful 2009 provincial election candidate who claims he was defamed during a debate in Edgemont Village.
David Marley, who ran as an independent against incumbent B.C. Liberal Ralph Sultan, is suing West Vancouver businessman Peter Kains for comments he made during the debate at Highlands United Church on May 6, 2009.
In B.C. Supreme Court, Marley's lawyer, Don Baron, played a DVD of the allcandidates debate. While the camera is trained on Marley, a voice can be heard saying that Marley was under investigation by West Vancouver police and by the provincial attorney general for his conduct during the 2008 civic elections.
"Don't you think, Mr. Marley," the voice continues "that it would be incumbent on you to let the voters of West Van-Capilano be aware that you were under this serious investigation, because there would be consequences if you were successful?"
On camera, Marley replied that this was "all news to him," and said the only investigation he was aware of was one he and West Vancouver Coun. Michael Lewis had triggered after complaining about two groups that had, he said, distributed illegal campaign materials. He also described Kains' comments as "underhanded."
Kains was not present in court, but his lawyer, Rod Sieg, said he intended to argue that Kains remarks were justified, fair comment, were under the protection of qualified privilege and were protected as "expressive rights."
With Sieg's consent, Baron read into the record a transcript of questions he had put to Kains during the discovery phase of the proceedings. Answering Baron's questions, Kains didn't dispute what was said at the debate. He agreed that he was a good friend and political supporter of Sultan, and that his business partner had managed the MLA's re-election campaign.
The basis of his allegations at the debate, Kains told Baron, was an anonymous letter in an unaddressed brown envelope dropped off at his office the day of the debate.
Baron asked him directly if the author was Vivian Vaughn, an unsuccessful 2008 West Vancouver mayoral candidate.
"I don't know Vivian Vaughn," replied Kains, who said he still had no idea who wrote the letter.
Kains went on to acknowledge he hadn't made any effort to determine the letter's author, nor had he contacted the West Vancouver police, the attorney general or Marley himself before the debate.
"Why not?" asked Baron.
"I just didn't," said Kains.
Kains rebuffed Marley's written demand for an apology, and said he could find documents that supported his allegations. Ultimately, however, he was unable to do so.
Baron called West Vancouver police Sgt. Jeffrey Wright to the stand. Wright testified that he had received complaints from Marley and Lewis in December of 2008, alleging that two groups - Low Tax Low Growth and West Vancouver Citizens for Good Government - had spent money on campaign brochures without identifying the source, a violation of the Local Government Act.
While looking into these complaints, Wright said, he determined that the printing firm that handled the brochures had also handled Vaughn's. After a phone conversation and two meetings with Wright, Vaughn produced seven written complaints of her own regarding the 2008 municipal election, including one about Marley. Vaughn alleged Marley had sent a defamatory email and had failed to register as a campaign organizer.
Wright said that after consulting with Crown counsel, he decided that regardless of what merit the complaints may or may not have, all of the issues - Marley's and Vaughn's - were either civil or electoral and thus not police matters.
At no point was the attorney general's office involved, Wright said.
None of Marley's allegations have yet been proven. The trial continues.
balldritt@nsnews.com
