by Mike Caswell

Former senator Edward Lawson has won his libel case against The Vancouver Sun's David Baines, with the judge finding that Mr. Baines defamed Mr. Lawson in a 2008 column. The decision, handed down on Friday, March 18, by Supreme Court Justice Robert Sewell, awards Mr. Lawson $30,000 in general damages. Although the judge called the general damages award "significant," it fell short of the $100,000 that Mr. Lawson had sought.

The decision comes after a 12-day trial held in September and October, 2010, at the Vancouver courthouse, during which Mr. Lawson argued that Mr. Baines's story unfairly linked him with stock fraudsters Ed Carter and David Ward. Among other things, the story stated that Mr. Lawson provided the promoters with free flights on a Teamsters jet and received shares in rigged companies.

Mr. Baines, for his part, argued that the facts of his story were true. During the trial, he presented evidence that Mr. Lawson had traded in five or six Carter-Ward companies and had served as a director of one. The trial also heard much testimony about Mr. Carter and Mr. Ward's presence on the Teamsters jet.

Justice Sewell's decision

In his 19-page decision, Justice Sewell found that the sting of the libel against Mr. Lawson was the inference that the former senator provided Mr. Carter and Mr. Ward with free travel on the Teamsters jet in return for free shares. The story would cause an ordinary reader to infer that Mr. Lawson "did play an active role in the Carter Ward scheme" and that he "did abuse his office" as a Teamsters official.

While the defence spent a significant portion of the 12-day trial trying to prove the literal meaning of the words in the story, the evidence it presented was mostly irrelevant, the judge ruled. He found that the case turned on the meaning that an ordinary reader would glean from the column, which is that Mr. Lawson was corrupt. This means that many hours of testimony and court time had little bearing on the general damages award.

Specifically, the judge said that two lines in Mr. Baines's story created the defamatory meaning. They stated: "Lawson also suffered the embarrassment of being identified as a close associate of Ed Carter, who along with partner David Ward was caught in a huge stock bribery scam in the mid-1980s. Evidence at the criminal trial of Carter and Ward was that the two promoters gave Lawson shares of their rigged companies, and Lawson flew them, often free of charge, on the Teamsters executive jet he had at his disposal."

The defence had contended that the story was about Arctic Oil and not about Mr. Lawson, but the judge was not swayed by this argument. He agreed that the great majority of the column focused on Arctic Oil and the questionable nature of the company, but "I do not see how that argument advances the defendants' case," he wrote. The column essentially argued that Arctic Oil was a stock scam, and the comments about Mr. Lawson supported that argument.

While the judge decided the case in Mr. Lawson's favour, he found that the 81-year-old former senator was an unreliable witness. During the trial, his testimony frequently differed from documentary evidence. In one instance, he denied being a director of former Vancouver Stock Exchange listing Tye Explorations Inc., when documents showed that he had been. Justice Sewell did not attribute his unreliability to any attempt to mislead the court, however. "Rather I have concluded that his ability to recall past events has deteriorated to the point that it can no longer be relied upon," the decision reads.

Also unreliable, although for different reasons, was the evidence of Mr. Carter, who testified about flights on the Teamsters jet. The judge said Mr. Carter's evidence was self-serving, and he was "extremely egocentric and anxious, even at this late date, to justify his actions of 25 years ago." (Securing his testimony was a significant matter during the trial, as the judge had to adjourn the hearing for three weeks while lawyers for both sides flew to Toronto to set up a video conference with the 85-year-old promoter. When he finally testified, he laid most of the blame for his past legal problems on his former partner, Mr. Ward, who was murdered in 1997.)

Unlike the others, the testimony of Mr. Baines, as described in the decision, was honest and forthright. The judge said he had no hesitation in relying upon it.

When it came to damages, the judge said that Mr. Baines imputed "serious misconduct" on Mr. Lawson, which required something more than a nominal award. He also took into consideration the fact that Mr. Lawson sought an apology and retraction, but The Sun refused.

Although the judge granted Mr. Lawson general damages, he turned down the former senator's request for an extra award of $25,000 to $50,000 in aggravated damages. Mr. Lawson had argued that Mr. Baines published the column out of malice, or with an intent to injure his reputation. Justice Sewell disagreed, and found that Mr. Baines wrote the column with a view to informing the public about a questionable stock promotion, that of pink sheets listing Arctic Oil & Gas Corp.

The judge made no ruling on costs in the case, although The Sun will presumably have to pay a portion of Mr. Lawson's legal bill. At the conclusion of the trial, both sides sought and received permission to make submissions on costs after the judgment.

North Vancouver libel specialist Roger McConchie represented Mr. Lawson, and Vancouver Sun lawyer Rob Anderson represented Mr. Baines.

The other defendants in the case were Vancouver Sun employees Hugh Dawson, Patricia Graham, Kirk LaPointe and Kevin Bent, as well as Canwest Publishing Inc., the paper's owner at the time of the story.