Vindication

Update – 23 January 2014 – Injunction and costs award – A permanent injunction has now been issued prohibiting the defendants Connie Fournier, Mark Fournier, Jason Bertucci, and Roger Smith from publishing the material found to be defamatory in this case. Justice Smith has also ordered costs in the amount of $85,000 reflecting the scorched earth defences pursued including that the allegations were true until the close of the trial, and the refusal by the defendants to accept the reasonable settlement offers made.

October 2013 – I am pleased to confirm that a 6-member civil jury in Ottawa has now vindicated my reputation from a 6-year onslaught of character assassination and malicious attacks. The jury (that the defendants requested) upheld my claim for libel in the Ontario Superior Court against defendants Connie Fournier and Mark Fournier of Kingston, ON who own and operate a web forum and 2 of their users, Jason Bertucci and Roger Smith of Victoria, BC.

The jury found that all 4 defendants had been motivated by malice in their attacks against me and awarded $42,000 in damages broken down in the following amounts:

Connie Fournier – $7,000 general damages/$4,000 aggravated/$8,000 punitive
Mark Fournier – $4,000 general/$3,000 aggravated/$5,000 punitive
Jason Bertucci – $2,000 general/$1,000 aggravated/$2,000 punitive
Roger Smith – $2,000 general/$1,000 aggravated/$3,000 punitive

I believe the awarding of punitive damages speaks volumes about the nature of this case. In his seminal decision involving prosecutor (now Justice) Casey Hill against the Church of Scientology, at paragraph 196, Justice Peter Cory of the Supreme Court wrote:

“Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high‑handed that it offends the court’s sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner.”

An injunction is being sought and costs remain to be ruled on by Justice Robert Smith who presided over the trial. The decision by the defendants to force a 6-year legal odyssey and ultimately an 11-day jury trial in a simplified procedure matter was incomprehensible. Each defendant could have settled the matter from the beginning for $5,000 in damages that I had agreed to donate to the Military Family Resource Centre and costs that originally amounted to $900 total when the claim began in 2007.

I am extremely grateful to the jury members and everyone else who was drawn into helping sort out this case (willingly or unwillingly) for their time, care, and consideration. I am particularly indebted to my able counsel James Katz, articling student Devan Marr for his work during the trial, and Stephanie Lewis for her efforts way back when. A huge vote of thanks as well to the law firms and staff of Nelligan O’Brien Payne and Brazeau Seller before them.

– 21 October 2013 – I have today offered to the defendants in the libel action below to donate all damages received after payment of my legal fees to children’s charities. The offer is conditional on them accepting the verdict of the jury they asked for, and any subsequent order of Justice Smith regarding the case. The offer is open for acceptance until Thursday, October 24th.

– None of the defendants chose to provide even the courtesy of a response to the offer to donate all damages after legal fees to children’s charities. As a result, rather than benefitting children, they’ve chosen to continue throwing good money after bad.

– Defendant Jason Bertucci had posted publicly a concern that he had not been aware of the charitable donation offer until the deadline had passed. He was therefore re-offered it and immediately rejected it out of hand.