IS THIS CASE NOT NECESSARILY A TYPICAL ANTI SLAPP PROCEEDINGS OR A FORENSIC FRANKENSTEIN ?
IS THIS CASE NOT NECESSARILY A?TYPICAL ANTI SLAPP PROCEEDINGS? OR A FORENSIC FRANKENSTEIN ?
If lawyers or the public have any doubt about the potential of anti slapp proceedings to metastasize into a forensic Frankenstein you should read the following decision
The anti slapp proceeding which was mentioned in a previous blog contained an Interlocutory motion to determine the existence of solicitor client privilege concerning a number of documents The Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 125 (CanLII)
This interlocutory proceeding required three days by Zoom of Court time of a Judge of the Superior Court of Justice .There were forty parties and seventeen counsel
Justice Boswell introduced his Ruling on the question of the application of solicitor client privilege with a quote from Stephen Hawking
"For millions of years, mankind lived just like the animals. Then something happened which unleashed the power of our imagination. We learned to talk and we learned to listen. Speech has allowed the communication of ideas, enabling human beings to work together to build the impossible. Mankind's greatest achievements have come about by talking, and its greatest failures by not talking. It doesn't have to be like this. Our greatest hopes could become reality in the future. With the technology at our disposal, the possibilities are unbounded. All we need to do is make sure we keep talking.
????????????????????????????????????????????????????????????????Stephen Hawking
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[1]??????????Sometimes people talk too much.?Sometimes they get themselves into trouble doing so.?Sometimes they hurt other people by what they say.?And sometimes they do so intentionally.
[2]??????????Dr. Hawking was right, of course.?It’s impossible to overstate the important place that communication has had in much of human achievement.?But language can also be used to demean and demoralize, provoke and offend.?It can be used to shape public perception and behavior.?It can be used to discredit known facts or promote false narratives.??It can be weaponized.
[3]??????????This multi-tentacled lawsuit is all about the trouble that talking – both the written and spoken word – can create.?At the core of the lawsuit are two very wealthy and powerful men; competitors of one another in the private equity investment business.?Each accuses the other of weaponizing language against him and his business.?Each seeks hundreds of millions of dollars from the other as damages for defamation.
[4]??????????This ruling will not offer any conclusions about whether either man’s allegations are well-founded.?This is, in effect, a disclosure motion – just one small battle in a larger war.??
[5]??????????One of the protagonists (Mr. Boland) says the other (Mr. Glassman) directed agents to conduct a smear campaign against him and his business.??He alleges that the agents engaged in some unethical behavior, including (1) conducting pretext interviews of his employees in an attempt to elicit confidential information from them; and (2) publishing, or attempting to publish, false and defamatory statements about him and his business in social and mainstream media outlets.??He seeks production of any documents relating to the activities of those agents.??
[6]??????????The documents have not been produced, not because they are not relevant to the live issues between the parties, but because the plaintiff, Catalyst, alleges that they are subject to either solicitor-client privilege or litigation privilege.??
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[7]??????????West Face, the Anson Defendants and Mr. Baumann, supported by Mr. Copeland and Mr. Langstaff, ask, on motion, that the court declare Catalyst’s privilege claims to be unsustainable and that the court order production of the documents in issue.
[8]??????????This ruling is unavoidably lengthy and somewhat dense, so a roadmap may be helpful.? "
After providing a roadmap , Justice Boswell then sketched a very lucid overview as follows
"[12]???????The Catalyst Capital Group Inc. and West Face Capital Inc. are both significant players in the Canadian private equity market.?Both were suitors of WIND Mobile when it was put up for sale in 2014.?West Face prevailed.?Catalyst cried foul and sued.?West Face prevailed again.?Catalyst appealed.?While the appeal was pending, agents of Catalyst engaged in a systematic effort to unearth fresh evidence that might undermine the integrity of the judgment in favour of West Face, to diminish the public reputation of West Face and to promote the public image of Catalyst.?Some of their tactics were ethically dubious.??
[13]???????This lawsuit is the fourth in a string of actions involving Catalyst and West Face.?Each accuses the other of manipulating public discourse to unfairly influence the private equity market.? BOLDING AND UNDERLINING INSERTED
[14]???????Catalyst claims that West Face and others conspired to harm it and a related company – Callidus Capital Corporation – through false, negative publicity and a targeted short-selling of the publicly-traded shares of Callidus.?West Face countersues, claiming that Catalyst engaged in a course of conduct designed to defame West Face and its principals and to unfairly harm its position in the market.??
[15]???????The underlying action is complex to say the least.?The stakes are a half a billion dollars.?There are multiple parties and layers of claims, counterclaims and claims over.?The pleadings are voluminous.?
The materials filed on this motion are similarly voluminous and run to the many thousands of pages.??
BOLDING AND UNDERLINING INSERTED
[16]???????Understanding the privilege issues engaged by this motion requires at least some appreciation of the broader issues in the action.?That said, it would be easy to get lost in the labyrinthine factual context in which these motions are situated.?Any attempt to summarize all of it is a fool’s errand.?While a somewhat detailed overview is necessary, I will do my best to keep it manageable by focusing on only what is relevant and material to this particular battle.?I begin with a brief introduction of the central parties.