Form 2 (RULE3-3(1)) No. S-172751 Vancouver Registry In the Supreme Court of British Columbia Between COLIN HAIME, DENISE HAIME and JOHN COULSON Plaintiffs and JENNIFER MILLBANK, GRAHAM SAVAGE and DAVE SCOTT Defendants RESPONSE TO CIVIL CLAIM. Filed by: Jennifer Millbank, Graham Savage and Dave Scott (the “defendants”) Part: | RESPONSE TO NOTICE OF CIVIL CLAIM FACTS Division 1 — Defendants’ Response to Facts 1. The facts alleged in paragraphs 1 through 8 of Part 1 of the notice of civil claim (the “Claim”) are admitted. 2. The facts alleged in all other paragraphs of Part 1 of the Claim are denied, except to the extent specifically admitted herein, 3. The facts alleged in paragraphs NIL of Part 1 of the notice of civil claim are outside the knowledge of the defendants. Division 2 - Defendants’ Version of Facts Context and Summary 1, The District of Lantzville became incorporated and had its first elected councillors in 2003, Twyla Graff was employed by the District from 2003 onward and became Ghiot 21422 $172754 (007808991) B.0n-2- Administrative Office (“CAO”) in April 2006, a position she served through the various councils until her resignation on April 1, 2015. District of Lantzville staff, headed by the CAO, regularly attended and presented reports, to council meetings which had been distributed to councillors with a detailed agenda in advance for review. Staff members attending and presenting reports at council meetings have no meaningful ability to defend themselves from criticism, insult or attack from councillors or members of the public who speak. 3. In the November 2011 council election, the plaintiff Colin Haime, who had been mayor, ‘was not re-elected. His spouse, the plaintiff Denise Haime, also known as Denise Barber, was elected. During the 2011-2014 council term, among other things: a) A water supply agreement for District of Lantzville, which Colin Haime as mayor hhad failed to achieve, was concluded with the City of Nanaimo through the substantial efforts of Lantzville staff led by the CAO, the mayor Jack DeJong and some councillors; b) Denise Haime publicly and falsely claimed to local media as reported in the Nanaimo News Bulletin and on www.bclocalnews.com that the water agreement was illegal. She claimed to have a legal opinion saying so, though she has never revealed the alleged opinion; ©) Colin Haime publicly criticized the water agreement and Denise Haime remained opposed to the water agreement; 4) Information from in-camera meetings was leaked to members of the public, including information regarding the water agreement. 4. During the relatively short period from the November 2014 election and the publications by the defendants complained of, the plaintiff's created or contributed to a hostile and disrespectful work environment, a matter of significance to the citizens of Lantzville and (0075089921)3. their interest in the proper functioning of the District government and a respectful work environment for its employees, as detailed further below. 5. This action is without merit, as the words complained of were on matters of public interest, were true, fair comment and protected by qualified privilege, and as the plaintiffs have suffered no damage. ‘The action was not brought for the true purpose of protecting reputation as the plaintiffs waited nearly two years to bring the action. Instead, the plaintiffs intend, know or ought to know that the action creates a strategic threat against the defendants and others who may criticize the plaintiffs, discouraging or chilling free speech in the community. This Court should denounce the use of litigation in this manner by dismissing the action with special or increased costs. 6. The defendants specifically deny the allegations that they “engaged in an extensive public campaign to discredit and undermine the plaintiffs both in the community and with Lantzville staff” as alleged in paragraph 9 of the Claim, and that they acted at any time with malice as alleged in various paragraphs of the Claim. Meanings 7. As to the publications partially quoted in the Claim, which appears at paragraphs 11, 15, 19, 23, 26, 30, 33 and 36, the defendants rely upon the actual and entire publications for accuracy and context. 8. As to the Claim as a whole and in particular the alleged meanings set forth at paragraphs 12, 17, 21, 27, 31, 34 and 37 of the Claim, the defendants say that in their context, the words complained of did not bear the alleged defamatory meanings, and on that basis the Claim should be dismissed. 9. In further response to alleged meanings, the plea of innuendo at paragraphs 12, 17, 21, 27, 31, 34 and 37 of the Claim lacks the required pleading of facts or matters known to readers creating the alleged innuendo, and as such the plea is deficient and should be struck or dismissed. (00750899:1)March Memorandum 10. ML. With regard to the March Memorandum alleged to be defamatory at paragraphs 10 through 13 of the Claim, the said Memorandum was dated March 26, 2016, and was authored and published by all five senior non-unionized members of District of Lantzville staff, raising genuine and honest concems about the workplace environment at the District of Lantzville. None of the defendants were or are alleged to have authored or contributed to the March Memorandum and on that basis, the allegation that its original publication was defamatory forms no valid plea of defamation and that portion of the Claim should be dismissed. ‘The March Memorandum, to the extent alleged to have been subsequently published by the defendants in later paragraphs of the Claim, is protected by the defences of qualified privilege, truth and fair comment set forth more fully below. Millbank Email of April 2, 2015 12, 13. 14. With specific regard to the Millbank Email referenced in the Claim at paragraphs 14 through 18, the defendant Jennifer Millbank admits that she sent an email on April 2, 2015, attaching a copy of the March Memorandum, Neither the Millbank Email or March Memorandum identified any person. If any recipient believed the email or memorandum was referring to any of the plaintiffs, such recipient must have previously associated the plaintiffs with the behaviour described therein, such that those documents merely repeated information already known to the said recipient. ‘The defendant Jennifer Millbank says the Millbank Email and March Memorandum were sent on an occasion of qualified privilege as both she and the recipients, all of whom were citizens of Lantzville, had a legitimate interest in the contents of the email and memorandum. The defendant Millbank honestly believed the contents of the said email ‘memorandum to be true, such that the publication is protected by the defence of qualified privilege. (00750899;1)5. 15. Further and in the alternative, the words complained of in the Millbank Email and March Memorandum, in their full context, were true or substantially true. The particulars of truth include but are not limited to: a) b) d) °) 0075089941) In 2012 Colin Haime told Graham Savage that he regretted not having fired Twyla Graff while mayor, and Colin Haime’s desire to get Ibank on or about November 19, of Twyla Graff has subsequently been expressed to Jennifer 2014; Beginning October 8, 2014, and continuing through his time as a councillor and to the date of this Response, John Coulson has continually published an article on his website insulting to the CAO, titled “Something is Rotten in the State of Lantzville”, falsely alleging or implying that the CAO committed wrongdoing including concealing information in respect of a water agreement and asserting she should have been made to resign. The said false article has remained on John Coulson’s website to this day. Colin Haime as chair and mayor has failed to require the removal of the said false posting; On or about January 22, 2015 at a strategic planning meeting, when a facilitator spoke of the value of top notch staff, Denise Haime said in the presence of District staff, “no, we just want mediocre staff” or very similar words; Beginning in early 2015, John Coulson video recorded council meetings without notifying or seeking consent of council or of staff. John Coulson posted portions of the recordings on Youtube and linked to them from his website, alongside a photo of himself as a clown, again without notice or consent. Colin Haime as chair and mayor failed to prevent the said non-consensual video recording and ‘Youtube postings; In early 2015, in discussion of a budget estimate from staff for a needed culvert, John Coulson said and Colin Haime as chair permitted him to make insulting comments about the staff and their report, namely that the estimate was8) h) i k) 00750899,1), -6- “ridiculous” or using similar language and “give me a backhoe and a couple of guys and I'll do it in a weekend’ On March 10, 2015, Colin Haime falsely posted on Twitter that council had voted for a 3% tax increase, intending or knowing that the posting would cause im of other councilors and staff; When at a March 23, 2015 council meeting Jennifer Millbank spoke in favour of a neutral, District operated video recording system, and raised concerns which had also been raised by the CAO on or about March 9, 2015 about non-consensual recording and Youtube postings. Ms. Millbank also raised the need to consider safety concems. John Coulson mocked the concerns and called them “comical”; On or about March 23, 2015 at a public council meaning, in discussion of a sewer grant application for certain Lantzville neighborhoods, Denise Haime and John Coulson were insulting to staff’ members Fred Spears, Jedha Holmes and Twyla Graff by saying or implying that staff had handled the matter incompetently, despite that fact that all plaintiffs had the report and agenda item in advance at the ‘meeting and had not raised the concerns or question in advance; Ata council meeting on April 27, 2015 regarding the audit by KMPG of the 2014 financial statement, the auditors indicated that their review of financial statements a “clean and unqualified” audit, yet on the motion to approve the audit report, despite raising no concerns with the financial statements or audit, Colin Haime and John Coulson voted against the approval motion. On several occasions, Denise Haime has engaged in a pattern of dismissive and denigrating body language toward staff and their reports to council, including exaggerated sighing, eye-rolling, and hand gestures indicating exasperation, sometimes commenting “I like a good fight” regarding items she opposes; Comments by all plaintiffs on several occasions including public council ‘meetings, expressing criticism of the number and cost of staff members;(00730899:1) 7. Denise Haime denigrated staff member Trudy Coates, falsely claiming in or about January of 2015 that Ms. Coates had been fired from a previous position at Qualicum Beach; Colin Haime, as chair of the council meetings where the foregoing examples took place, failed to properly control or prevent denigrating statements and behaviour or to protect District staff from insult and humiliation; On March 26, 2015, in light of the foregoing and other incidents creating a disrespectful workplace, all five non-unionized District staff took the extraordinary step of unanimously signing a memorandum to council (the “March Memorandum”) raising concems about: i) “the tone of Council meetings, particularly with the ridicule and criticism of staff's work in a public meeting” ii) “disrespectful comments during recent meetings” “When members of council denigrate the work, opinion, or comments of others (whether directed at staff or fellow Council members) it encourages the public in the audience to model such behaviour” iv) Wishing to see “a workplace free from bullying and harassment” v) Requesting that council consider establishing a standard for conduct consistent with the Respectful Workplace (Bullying and Harassment) Policy No. 5005-2; On March 30, 2015, at a time when the March Memorandum and its authors deserved to have their concerns addressed in a respectful, constructive and timely manner, Colin Haime took no such steps and instead issued a memorandum to staff, without endorsement of council, directing staff to provide specifics of incidents to the very mayor and council whose behaviour was the problem rather than an independent and confidential reviewer, a request which staff declined Colin Haime said in his memorandum: “Just because a statement is negative in nature or because a question makes one feel uncomfortable does not make it bullying and harassment or a personal attack”.p) 9 0 x) (007308991) oe On or about March 30, 2015, at a time when the March Memorandum and its authors deserved to have their concerns addressed in a respectful, constructive and timely manner, Colin Haime instead behaved in an angry manner towards two of the authors of the March Memorandum, Twyla Graff and Trudy Coates, attempting the following day to make excuses for his “agitated” interaction with them; On April 20, 2015, council passed a motion that Colin Haime communicated by email with copies to council and the CAO with Gary Paget of the Ministry of Municipal Affairs regarding a suitable consultant and process to address the concems which had been raised in the March Memorandum, Colin Haime violated the resolution by communicating by phone, with the outcome of that no such review occurred; On April 1, 2015, Twyla Graff, who had been employed by the district for 11 years, resigned, largely as a consequence of the foregoing; ‘ctor of Finance for the District of On April 16, 2015, Jedha Holmes, Lantzville, resigned, largely as a consequence of the foregoing; In June of 2015, Lisa Bhopalsingh resigned, largely as a consequence of the foregoing; On April 27, 2015, councillor Roderick Negrave resigned, largely as a consequence of the foregoing; On April 27, 2015, councillor Jennifer Millbank resigned, largely as a consequence of the foregoing; On May 19, 2015 councillor Da Scott resigned, largely as a consequence of the foregoing; On May 25, 2015, councillor Graham Savage resigned, largely as a consequence of the foregoing;y) -9- On several occasions, the plaintiffs have engaged in direct or indirect threats of litigation or formal proceedings against District of Lantzville staff or councillors who they perceive to have been critical of them, including but not limited to: i) June 24, 2013 email from Denise Haime to Jennifer Millbank, copied to all then members of council, making a threat of libel action; ii) September 12, 2014 email from Denise Haime to all then councillors warning of legal steps if they made certain statements; iii) March 31 2015 email in response to the March Memorandum, criticizing the “caliber of information from staff” and raising the suggestion the March Memorandum was libelous; iv) April 9, 2015 Colin Haime made a spurious formal complaint of bullying against Jennifer Millbank; v) May 27, 2015 email from Colin Haime telling Graham Savage regarding a scheduled appearance: “I have been advised by counsel to tell you it will be taped and retained”; (‘Particulars of Justification”) In the further alternative, the words complained of in the Millbank Email and March Memorandum constituted comment upon a matter of publie interest, namely a respectful workplace environment in a local goverment, comprising views that a person could honestly hold, based upon true or privileged facts, stated or known, the particulars of which are: a) » °) (0073089951) fact that all five non-u ‘The contents of the March Memorandum as though fully repeated here, and the n staff including the CAO all were so concerned about the work environment that they took the extraordinary and unanimous step of issuing the March Memorandum; Colin Haime’s failure to properly and respectfully respond to the serious concerns in the March Memorandum as instead his inappropriate and angry reaction, as described in the Particulars of Justification; The negative tone and denigration of staff at council meetings;-10- d) The resignation of the CAO after 11 years employment, without severance, largely as a consequence of the concems raised in the March Memorandum and lack of appropriate response to it by Colin Haime; (“Particulars of Fair Comment of Millbank Email”) Community Letter 17. 18. 19. 20. 2. With specific regard to the Community Letter referenced at paragraphs 19 through 22 of the Claim, the defendants admit that they, along with councillor Rod Negrave, signed and circulated a Community Letter with the March Memorandum attached, Neither the Community Letter nor the March Memorandum identified any person. If any recipient believed the email or memorandum was referring to any of the plaintiffs, such recipient must have previously associated the plaintiffs with the behaviour described therein, such that those documents merely repeated information already known to the said recipient. The defendants say the Community Letter and March Memorandum were sent on an occasion of qualified privilege as both they and the recipients, all of whom were citizens of Lantzville, had a legitimate interest in the contents thereof. The defendants honestly believed the contents of the said Community Letter and March Memorandum to be true, such that the publication is protected by the defence of qualified privilege. Further and in the alternative, the words complained of in the Community Letter and accompanying memorandum, in their full context, were true or substantially true, the particulars of which are the Particulars of Justification. In the further alternative, the words complained of in the Community Letter and accompanying memorandum constituted comment upon a matter of public interest, namely a respectful workplace environment in a local government and the consequences to taxpayers of mistreatment of staff in terms of tumover, recruiting costs, staff productivity, potential stress leaves, impaired relationships with other agencies and 00750899,1),-ll- business dealings and legal liability, comprising views that a person could honestly hold, based upon true or privileged facts, stated or known, the particulars of which are the Particulars of Fair Comment of the Millbank Email as well as: a) Their personal knowledge of the hard work of District staff and their mistreatment by some council members at the council table as well as away from the council table; b) Their accurate expectation of further resignations of staff. (“Particulars of Fair Comment of Community Letter”) Resignation Letters 22. 23. 24, 25. 26. With specific regard to the Resignation Letters referenced at paragraphs 23 through 28 of the Claim, the defendants Millbank and Scott admits they each separately wrote and sent letters of resignation on April 27, 2015 and May 19, 2015, respectively, The Resignation Letters did not identify any person. If any recipient believed the email or memorandum was referring to any of the plaintiffs, such recipient must have previously associated the plaintiffs with the behaviour described in the email or memorandum, such that those documents merely repeated information already known to the said recipient, ‘The defendants Millbank and Scott say their Resignation Letters were sent on occasions of qualified privilege as both they and the recipients had a legitimate interest in the contents of their resignation letters. The defendants Millbank and Scott honestly believed the contents of their resignation letters to be true, such that the publications are protected by the defence of qualified privilege, Further and in the alternative, the words contained in the Resignation Letters were true or substantially true, the particulars of which are the Particulars of Justification. In the further alternative, the words complained of in the Resignation Letters constituted ‘comment upon a matter of public interest, namely a respectful workplace environment in 007508991)-12- a local government, comprising views that a person could honestly hold, based upon true or privileged facts, stated or known, the particulars of which are: a) The Particulars of Fair Comment of the Millbank Email; b) The Particulars of Fair Comment of the Community Letter; ©) The resignations of Jedha Holmes on April 16, 2015 and expected resignations of other staff. (“Particulars of Fair Comment of Resignation Letters”) Further Millbank Comments 21. 28. 29. 30. With respect to the Further Millbank comments referred to at paragraphs 29 through 38 of the Claim, Ms. Millbank admits she published a May 28, 2015 Facebook statement, gave a June 9, 2015 CBC interview and published an August 12, 2015 Facebook posting. ‘The Further Millbank Comments did not identify and were not of or concerning John Coulsen. ‘The defendant Jennifer Millbank says the Further Millbank Comments were published on occasions of qualified privilege as both she and the recipients had a legitimate interest in the contents of Further Millbank Comments. The defendant Millbank honestly believed the contents of the said publications to be true, such that the publication is protected by the defence of qualified privilege. Further in the alternative, the words complained of in the Further Millbank Comments, in their full context, were true or substantially true. Particulars are the Particulars of Justification as well as: a) Colin Haime’s media statements denigrating councillors who had resigned including his statement on or about August 11, 2015 published in the Times Colonist, falsely characterizing the councillor resignations as “politics” and {00750899;1)b) 4d -13- “personal vendettas” rather than the genuine and heartfelt concerns raised in the resignations; his media and public statements opposing the water agreement contrary to the will of council; his failure to declare a conflict in a timely manner with respect to the Village Commercial Core Committee funding; Her knowledge of the reluctance of people to run for or become involved with local government in Lantzville, largely as a consequence of the negative atmosphere and libel threats, (Particulars of Justification of Millbank Further Comments”) 31. In the further alternative, the Further Millbank Comments constituted comment upon a matter of public interest, namely the proper and respectful functioning of the local government, comprising of views that a person could honestly hold, based upon true ot privileged facts, stated or known, the particulars of which are: a) b) ‘The Particulars of Fair Comment of the Resignations Letters, and ‘The Particulars of Justification of Millbank Further Comments, Damages and Mitigation 32. If any of the defendants are liable for any of the alleged publications complained of, which is denied, the defendants say that damages are mitigated by the following: a) (00750899:1) The plaintiffs have suffered no damages or damage to their reputation as a consequence of any of the publications complained of; The plai public statements and actions indicated no disapproval of the publications in tiffS mad no complaint o legal demand for nearly two years, and their issue, including:-14- i) Colin Haime's statements on television on June 11, 2015, that the content of the March Memorandum was not at all objectionable and that it should not be hidden from the public; ii) John Coulson’s extensive re-publication of the allegedly defamatory material on his website, www.lantzvilled|1.ca from the time of publication to the date of this Response; ©) All facts proven with respect to all other pleaded defences. Division 3 — Additional Facts 1, None in addition to the above. Part2: RESPONSE TO RELIEF SOUGHT. 1. The defendants consent to the granting NONE of the relief sought in paragraphs 1-8 of Part 2 of the notice of civil claim. 2. The defendants oppose the granting of the relief sought in paragraphs 1-8 of Part 2 of the notice of civil claim, 3. The defendants take no position on NIL of the paragraphs in of Part 2 of the notice of civil claim. 4. The defendants ask that this action be dismissed with costs, including increased or special costs, Part3: LEGAL BASIS 1. The common law of defamation; and 2. Libel and Slander Act, R.S.B.C. 1996, ¢ 263. 0075089951)-15- Defendants’ address for service: Owen Bird Law Corporation P.O. Box 49130 Three Bentall Centre 2900-595 Burrard Street Vancouver, BC V7X 1J5 (Attention: Daniel W. Burnett, Q.C.) Fax number address for service (if any): 604-632-4433 E-mail address for service (if any): dbuphett@ Date: May 18,2017 Signature of lawyer for defendants Daniel W. Bumett, Q.C. Rule 7-1 (1) of the Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (@) prepare a list of documents in Form 22 that lists (all documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and Gi) all other documents to which the party intends to refer at trial, and (b) serve the list on all parties of record. (00730899:1)