A Close Look at Legal Battle That Stymied Alberta Podcast ‘The Breakdown’

One of Canada’s foremost defamation law experts says a sweeping interim injunction granted by an Alberta judge against The Breakdown, a popular web-based political commentary show, “is vulnerable to either being set aside or significantly modified” in a court hearing Friday.

Lawyers for MHCare Medical sought the interim injunction through an emergency hearing on Feb. 14. MHCare is a medical supply company owned by Sam Mraiche, the multimillionaire Edmonton businessman at the nexus of the so-called CorruptCare scandal.

MHCare sued The Breakdown and its owner and host, Calgary paramedic Nate Pike, for $6 million on Dec. 19.

In a series of shows, Pike, who stresses he is not a journalist, commented on government contracts to MHCare and the provision by Mraiche of luxury suite NHL playoff tickets to several UCP cabinet ministers, including Premier Danielle Smith, and to senior political staff.

The allegations have not been proven in court. Pike has filed a statement of defence in which he denies the allegations that he illegally defamed Mraiche or his business.

The two-week interim injunction, issued by Edmonton Court of King’s Bench Justice Doreen Sulyma, directed Pike to remove all content from his various social media platforms that mentions Mraiche, or his company. The court also directed him not to comment publicly about Mraiche or his company in any way.

While Pike’s supporters have alleged the court ordered him to be silenced, in fact it was Pike who opted to shut down all his social media because he said it was impossible to sort out the information subject to the injunction.

The Breakdown, now in its sixth year, has nearly 40,000 YouTube subscribers. Pike has raised nearly $200,000 through a legal defence fund he set up on GoFundMe after MHCare sued him.

Friday’s hearing in Edmonton will be before a different judge. Pike’s lawyers will argue the interim injunction is exceptionally broad and not supported by sufficient facts to meet a legal threshold as defined by a section of the Canadian Charter that guarantees freedom of expression. The judge could allow the interim injunction to lapse, narrow it, or order an extension.

Veteran Vancouver defamation lawyer Roger McConchie said Sulyma’s ruling may not withstand the appeal, but he is not surprised she granted the interim two-week injunction.

The often-acrimonious Feb. 14 hearing might have been confusing for the judge, McConchie said, after reviewing a transcript of the hearing obtained by The Tyee.

Pre-defamation trial injunctions are so rare that the related law is esoteric and complex, even for McConchie, who has specialized in libel and defamation law for more than 30 years.

“The transcript [in this injunction hearing] does not disclose that the leading principles of case law were made clear to the court,” said McConchie, who authored the law textbook Canadian Libel and Slander Actions.

Mraiche sought the emergency hearing because he contended, in an affidavit, that Pike had engaged in an allegedly defamatory and harassing campaign that caused him to fear for the safety of himself and his family.

Blayne Iskiw filed an affidavit in support of the injunction. Iskiw is one of the directors of Alberta Surgical Group or ASG, a chartered surgical facility company, which has done contract orthopedic surgeries for Alberta Health Services or AHS. The Globe and Mail has reported Mraiche is a 25 per cent shareholder in ASG. The interim injunction also applies to Iskiw.

In a wrongful dismissal lawsuit against AHS and Health Minister Adriana LaGrange, ousted AHS CEO Athana Mentzelopoulos alleges that she was politically pressured to sign contracts with chartered surgical facilities, including ASG.

Mentzelopoulos also alleged MHCare received more than $600 million in medical supply contracts.

None of the allegations in the Mentzelopoulos lawsuit, in which Mraiche was mentioned but not named as a defendant, have been tested in court. A statement of defence has yet to be filed.

The transcript shows Pike’s lawyers learned about the injunction application at 9 p.m. on Feb. 13 and they worked through the night to prepare for the hearing the next afternoon. It appears from the transcript that Sulyma, who has decades of experience on the bench, may have not had time to review the submissions.

McConchie noted that Mraiche’s lawyer — Greg Bentz of Edmonton — rightly pointed out that granting an injunction requires crossing a high legal hurdle. But it’s unclear if the elements of that strict test were completely conveyed to the court in the legal submissions.

Under the law, the plaintiffs must demonstrate that it is beyond doubt that any defamation defence raised by the defendant is not sustainable.

In Canadian Libel and Slander Actions, McConchie wrote that, “pretrial injunctions will only be granted in exceptional circumstances, where the words complained of are unarguably defamatory, clearly untrue and clearly not fair comment.

“The Court must conclude that any jury verdict favouring the defendant at trial would inevitably be considered perverse by a court of appeal.”

Pike’s lawyer, Richard Harrison from Calgary, told the judge he had several plausible defences, including fair comment, to some of the allegations.

Sulyma conceded she wasn’t familiar with the defence of fair comment.

She also seemed to have no idea what role Pike served as an online political commentator, or even why he publicly commented.

Harrison told the judge that Pike was interested in how the government procures medical supplies because he is a paramedic employed by AHS.

“I guess that puts him in the arena,” Sulyma said. “But it is kind of odd that an employee of AHS would be interested in matters of government.”

Harrison responded: “He is a private citizen, Justice [Sulyma], who has a Charter right to provide commentary on matters that are in the public interest.”

Harrison’s main argument was that Pike was offering commentary in the public interest on facts established by others, including media outlets, AHS and on his own research. And he repeatedly stated his client had viable defences, as detailed in Pike’s own affidavit.

Sulyma seemed not to accept that argument.

“My point is if you go around slandering and defaming people that that is not in the public interest,” Sulyma said.

“In the law of defamation, you are permitted to defame someone so long as you have an actionable defence,” Harrison said.

Later, during an exchange about the alleged safety risk to Mraiche, Sulyma reminded Harrison that seeking an interim injunction is “serious stuff” and she had hoped that responsible lawyers could have worked out some concessions before the hearing.

“I can say that perhaps Mr. Pike is not such a nice guy but I cannot rule on this, this afternoon,” the judge said.

In her ruling, she said she had considered the law and recognized its “higher burden” but found “it has not been established that there is a true defence by law or fact and, on a balance of convenience, the fact that real people have been put in dangerous positions.”

She issued an interim injunction for two weeks “hoping that the people involved, all parties, could work out their own solution.”

McConchie said the judge’s reference to the “balance of convenience” will likely be one of the major hinge points on whether the appeal succeeds or fails. It has been addressed in a Supreme Court of Canada decision, McConchie said.

In an ordinary civil case, he said, the granting of a pre-trial injunction takes into account the balance of convenience — which of the parties would suffer greater harm from granting or refusal of the injunction pending a decision on the merits.

But the Supreme Court found that factor plays no role in a determination by a court whether “prior restraint” of expression is warranted.

The Tyee asked McConchie to review the statement of claim, which details the defamation allegations, and Pike’s statement of defence.

The statement of claim contains several legally problematic allegations, he said, and the bare bones statement of defence was obviously filed to prevent a default judgment.

He said Pike’s lawyer likely knows his client must file an amended statement of defence that sets out a detailed defence.

“Right now the statement of defence is just labels like truth, fair comment and responsible communications. But labels won’t take you very far.”

If you have any information for this story, or information for another story, please contact Charles Rusnell in confidence via email.