TO HEAR WATTS TELL IT, 2019 BCSC 1580: Michael Mann Plaintiff And Timothy ("Tim") Ball Defendants, ENDED UP LIKE THE SCOPES TRIAL.
AS USUALLY THE CASE WITH THE WORLD ACORDING TO WATTS,THE REALITY WAS VERY DIFFERENT :
Before: The Honourable Mr. Justice Giaschi
Oral Reasons for Judgment In Chambers
Counsel for the Plaintiff:
R. McConchie
Counsel for the Defendant, Timothy (“Tim”) Ball:
M. Scherr
D. Juteau
Place and Date of Judgment:
Vancouver, B.C.
August 22, 2019
[1] THE COURT: I will render my reasons on the application to dismiss....
[2] The defendant brings an application for an order dismissing the action for delay.
[3] The plaintiff, Dr. Mann, and the defendant, Dr. Ball, have dramatically different opinions on climate change. I do not intend to address those differences. It is sufficient that one believes climate change is man-made and the other does not. As a result of the different opinions held, the two have been in near constant conflict for many years.
[4] The underlying action concerns, first, a statement made by the defendant in an interview conducted on February 9, 2011. He said, “Michael Mann at Penn State should be in the state pen, not Penn State.” This statement was published on a website and is alleged to be defamatory of the plaintiff. The notice of civil claim also alleges multiple other statements published by Mr. Ball are defamatory.
It is not necessary that I address the many alleged defamatory statements...
There have been at least two extensive periods of delay. Commencing in approximately June 2013, there was a delay of approximately 15 months where nothing was done to move the matter ahead. There was a second extensive period of delay from July 20, 2017 until the filing of the application to dismiss on March 21, 2019, a delay of 20 months. Again, nothing was done during this period to move the matter ahead. The total time elapsed, from the filing of the notice of civil claim until the application to dismiss was filed, was eight years. It will be almost ten years by the time the matter goes to trial. There have been two periods, of approximately 35 months in total, where nothing was done. In my view, by any measure, this is an inordinate delay.
Counsel for Dr. Mann submits that the delay was due to his being busy on other matters, but the affidavit evidence falls far short of establishing this...
In contrast, the defendant refers me to Hughes v Simpson ‑Sears,1988...where Justice Twaddle, writing on behalf of the Manitoba Court of Appeal, stated that:
...Freedman, J.A. said that the overriding principle in cases of this kind is “essential justice”. There is no doubt that that is so, but it must mean justice to both parties, not just to one of them.
[11] Additionally, based upon the evidence filed, the plaintiff and his counsel appear to have attended to other matters, both legal matters and professional matters in the case of the plaintiff, rather than give this matter any priority. The plaintiff appears to have been content to simply let this matter languish.
Accordingly, I find that the delay is inexcusable... the defendant intended to call three witnesses at trial who would have provided evidence going to fair comment and malice. Those witnesses have now died. A fourth witness is no longer able to travel...
Turning to the final factor, I have little hesitation in finding that, on balance, justice requires the action be dismissed. The parties are both in their eighties [SIC] and Dr. Ball is in poor health. He has had this action hanging over his head like the sword of Damocles for eight years and he will need to wait until January 2021 before the matter proceeds to trial. That is a ten year delay from the original alleged defamatory statement. Other witnesses are also elderly or in poor health. The memories of all parties and witnesses will have faded by the time the matter goes to trial.
... I wish to note that the materials that have been filed on this application are grossly excessive in relation to the matters in issue. There are four large binders of materials filed by the plaintiff on the application to dismiss, plus one additional binder from the defendant. The binders contain multiple serial affidavits, many of which are replete with completely irrelevant evidence.
In my view, this application could have been done and should have been done with one or two affidavits outlining the delay, the reasons for the delay, and the prejudice.
[18] Those are my reasons, counsel. Costs?
[19] MR. SCHERR: I would, of course, ask for costs for the defendant, given the dismissal of the action.
[20] MR. MCCONCHIE: Costs follow the event. I have no quarrel with that.
[21] THE COURT: All right. I agree... Then, we are concluded and you shall have your materials back, which are these binders. Thank you, gentlemen.
AS USUALLY THE CASE WITH THE WORLD ACORDING TO WATTS,THE REALITY WAS VERY DIFFERENT :
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| A MORE DISINTERESTED TITLE MIGHT BE: AFTER EIGHT YEARS, THE LAW DISFAVORS THE UNSWIFT |
Before: The Honourable Mr. Justice Giaschi
Oral Reasons for Judgment In Chambers
Counsel for the Plaintiff:
R. McConchie
Counsel for the Defendant, Timothy (“Tim”) Ball:
M. Scherr
D. Juteau
Place and Date of Judgment:
Vancouver, B.C.
August 22, 2019
[1] THE COURT: I will render my reasons on the application to dismiss....
[2] The defendant brings an application for an order dismissing the action for delay.
[3] The plaintiff, Dr. Mann, and the defendant, Dr. Ball, have dramatically different opinions on climate change. I do not intend to address those differences. It is sufficient that one believes climate change is man-made and the other does not. As a result of the different opinions held, the two have been in near constant conflict for many years.
[4] The underlying action concerns, first, a statement made by the defendant in an interview conducted on February 9, 2011. He said, “Michael Mann at Penn State should be in the state pen, not Penn State.” This statement was published on a website and is alleged to be defamatory of the plaintiff. The notice of civil claim also alleges multiple other statements published by Mr. Ball are defamatory.
It is not necessary that I address the many alleged defamatory statements...
There have been at least two extensive periods of delay. Commencing in approximately June 2013, there was a delay of approximately 15 months where nothing was done to move the matter ahead. There was a second extensive period of delay from July 20, 2017 until the filing of the application to dismiss on March 21, 2019, a delay of 20 months. Again, nothing was done during this period to move the matter ahead. The total time elapsed, from the filing of the notice of civil claim until the application to dismiss was filed, was eight years. It will be almost ten years by the time the matter goes to trial. There have been two periods, of approximately 35 months in total, where nothing was done. In my view, by any measure, this is an inordinate delay.
Counsel for Dr. Mann submits that the delay was due to his being busy on other matters, but the affidavit evidence falls far short of establishing this...
In contrast, the defendant refers me to Hughes v Simpson ‑Sears,1988...where Justice Twaddle, writing on behalf of the Manitoba Court of Appeal, stated that:
...Freedman, J.A. said that the overriding principle in cases of this kind is “essential justice”. There is no doubt that that is so, but it must mean justice to both parties, not just to one of them.
[11] Additionally, based upon the evidence filed, the plaintiff and his counsel appear to have attended to other matters, both legal matters and professional matters in the case of the plaintiff, rather than give this matter any priority. The plaintiff appears to have been content to simply let this matter languish.
Accordingly, I find that the delay is inexcusable... the defendant intended to call three witnesses at trial who would have provided evidence going to fair comment and malice. Those witnesses have now died. A fourth witness is no longer able to travel...
Turning to the final factor, I have little hesitation in finding that, on balance, justice requires the action be dismissed. The parties are both in their eighties [SIC] and Dr. Ball is in poor health. He has had this action hanging over his head like the sword of Damocles for eight years and he will need to wait until January 2021 before the matter proceeds to trial. That is a ten year delay from the original alleged defamatory statement. Other witnesses are also elderly or in poor health. The memories of all parties and witnesses will have faded by the time the matter goes to trial.
... I wish to note that the materials that have been filed on this application are grossly excessive in relation to the matters in issue. There are four large binders of materials filed by the plaintiff on the application to dismiss, plus one additional binder from the defendant. The binders contain multiple serial affidavits, many of which are replete with completely irrelevant evidence.
In my view, this application could have been done and should have been done with one or two affidavits outlining the delay, the reasons for the delay, and the prejudice.
[18] Those are my reasons, counsel. Costs?
[19] MR. SCHERR: I would, of course, ask for costs for the defendant, given the dismissal of the action.
[20] MR. MCCONCHIE: Costs follow the event. I have no quarrel with that.
[21] THE COURT: All right. I agree... Then, we are concluded and you shall have your materials back, which are these binders. Thank you, gentlemen.
