Disagreements over HDI media release

OHSWEKEN – This past Wednesday, the Two Row Times received a letter of warning drafted by HDI lawyer David Shiller LLP, and addressed to Jim Windle c/o the Two Row Times.

Although it would be much easier to simply retract truthful but uncomplimentary statements made about the HDI than
to challenge the charges levied towards this publication and the writer of the article in question, it would not be a gesture of integrity to do so.

The lawyers letter demanding a retraction of parts of a Two Row Times article is printed in its entirety on the previous page.

In the article in question, entitled, “HDI media release under question”, Bill Monture and Wilfred Davey’s lawyer Jeffery Kaufman was quoted extensively in response to the HDI generated public relations release thinly masked as a news wire article and published in advance of the case between the HDI and Bill Montour and Wilfred Davie being heard.

Mr. Kaufman was contacted by TRT again following the receipt of the HDI letter, and he responded to questions presented by the HDI lawyer regarding the TRT article.

In the HDI article it was presented that the delays were somehow reflective of a poor case. “There is nothing that unusual about the delay in this case,” writes Haufman. “In a 2016 Superior Court of Ontario decision in lalani v Reeves, Justice Balobaba, a well- known class actions judge granted leave to proceed with a certification motion after a
4-year delay.

As his Honour stated: “Section 2(3) of the CPA requires that the motion for certification must be brought within 90-days after the statement of defence is delivered. Otherwise, the
plaintiff needs leave from the court. Judges have long recognized that the 90-day rule is “more frequently honoured in thebreach than in the observance.”[6] Most certification motions are brought within a year or so after the statement of defence is delivered and leave from the court under s. 2(3) is rarely sought or required.”

He goes on to explain, “Part of the explained delays (was) the failure of the respondent Detlor to submit to cross examination, which was ordered at the last court attendance, and the applicant’s right to seek amendment of their claim and file further evidence, Pursuant to .s. 5(4) of the Class Proceedings Act : “the court may adjourn the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be filed.” Much was also made of a $3,500 fine in the HDI release.

“The $3,500 cost award (spoken about in the HDI release) is not unusual and has no bearing on the merits of the case,” says Kaufman. He employs a very recent case involving the HDI and Enbridge to show how this cost award thing works and how they themselves were severely fined. “In a recent injunction case between HDI and Enbridge, Shiller and Detlor clients were ordered to pay approx. $25,000 in costs,” Kaufman points out.

In conclusion, Kaufman states, “There is therefore nothing defamatory and the press has a qualified privilege to report. This is more about libel chill, which is more frowned upon by the courts.”