A judge who is to rule on a defamation threat sent in the middle of a civil trial by Alberta’s former justice minister has been told the warning reignited fear and anxiety in the plaintiff and led another witness to beg off testifying.
“It’s not going to be easy to put the toothpaste back in the tube,” lawyer Allan Garber told Court of Queen’s Bench Justice Doreen Sulyma on Monday.
“A mistrial would not be in anyone’s best interests, but I do want to say this has been difficult.”
Sulyma is to deliver a ruling in the matter Wednesday morning. There are various possible outcomes, including a finding of contempt.
Garber represents Dr. Anny Sauvageau, Alberta’s former chief medical examiner. Sauvageau is suing the province for $7.6 million in lost wages and benefits after her contract was not renewed in 2014.
Jonathan Denis was Alberta’s justice minister at the time.
Sauvageau had been testifying before Sulyma over the past few days in the civil trial.
The process slammed to a halt Friday after it was revealed a representative for Denis had sent a letter threatening to sue her for defamation tied to comments she was making on the witness stand.
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However, those testifying in court have full immunity from defamation in order to compel the whole, unvarnished truth.
Sauvageau, in an affidavit, said she has never defamed Denis.
Garber told court the letter doesn’t detail the alleged defamation and “should be interpreted as a threat to the plaintiff and an attempt to intimidate the plaintiff to protect the reputation of Mr. Denis.”
He added that after news of Friday’s letter was published in the media, a potential witness said he no longer wished to testify.
Brendan Miller, a lawyer for Denis, told the judge that the letter was not well drafted and was poorly timed, coming in the middle of the court case.
But Miller stressed the letter was misinterpreted.
He agreed it’s a well-understood legal principle that testimony in court cases can’t be used for defamation lawsuits.
But he noted such testimony can be used to help identify and corroborate similar statements made outside court. And that, said Miller, was what the letter was doing: cautioning Sauvageau over comments she may be making to media outside court.
“There should be no fear whatsoever for the doctor to testify,” said Miller.
Garber told court he had no idea what Miller was talking about.
“There’s no reference anywhere (in the letter) to (Sauvageau) having said anything to the media — and she’s never done that,” he said.
Miller said Denis, who was present in court Monday, was sorry for problems the letter had caused. Sauvageau was also in court, on the opposite side of the public gallery from Denis.
The letter was written by lawyer Kyle Shewchuk on behalf of Denis. As the proceedings closed Monday, Shewchuk stood and apologized to Sulyma.
“This has been a learning experience for me, as I’m a new lawyer to the bar,” said Shewchuk.
The trial revolves around Sauvageau’s performance as chief medical examiner, a job she held from 2011 to the end of 2014.
Sauvageau alleges she was forced out of the job as punishment after raising concerns, including political interference in cases and billing on body pickups.
The government, in turn, says Sauvageau’s contract was not renewed because she was seeking to exercise authority beyond the scope of her job while displaying questionable judgment and decision making.
Claims from either side have yet to be proven in court.
Sauvageau said in her affidavit that the letter from Denis’s lawyer has had a chilling effect because she does not have a job and fears the “financial consequences” of fighting a defamation lawsuit.
“I am now fearful to give my evidence in this trial,” wrote Sauvageau.