Statement of Defence of David Jenkins Dated April 3 2013pdf

Court File No 13 39652

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E EN

MICHAEL A BIRD

Plaztiff

and

DAVID JENKINS

Defendant

STATEMENT OF DEFENCE

The Defendant admits the allegations contazed in paragTaphs 2 3 and 4 of the Statement of

Claim

The Defendant denies the allegationscontained in paragraphs l and 5 tluough 40 of the Statement

of Claim

With respect to paragraph 15 of the Statement of Claim it appears to be a duplicate of paragraph

14 of the Statement of Claim and the Defendant pleads to paragraph 15 z the same manner as he does to

paragraph 14 of the Statement of Claim

With respect to paragraph 5 of the Statement of Claim szce 2008 the Defendant has from his

computer in the Town of Oakville in the Province of Ontario been engaged in broadcasting writings

picttues and sotmds intended to be received by the public The writngs pictttres and sotmds are

commtmicated by wireless commtmication or wires cables and fibre optic linkages or laser beams to the

Internet and via the Intenzet they are accessible anyone who visits his blog at

lAAsqBgliqB qmiz qtzBpt tmder the title Anglican Samizdat As such the Defendant broadcasts

within the meaning of Section 1 1 of the Libel and Slander Act R S O 1990 C L l2 hereinafter called

the LlbeI and Slander Wc The broadcasts are accessible to residents of the Province of Ontario and

Canada

In the five years that the Defendant has been broadcasting he has made more than 3 000 postings

which on average include more than one broadcast per day Some of the writngs pictures and sounds

are in the natttre of news items together with commentaly with respect to many religious and politcal

issues zcluding with respect to the chttrch commtmity A few of the broadcasts include reference to the

Plaztiff The Defendant also broadcasts recordings of his music on the website and other writings

picttues and sounds that have no reference to the church community or to the Plaintff

The Plaintiff has not sened on the Defendant a notice z writing regarding the broadcasts of the

Defendant specifying the matler complainedof within six weeks after the libel has come to the Plaintiffs

knowledge as required under section 5 1 of the Libel and Slander Act and accordingly the action

commenced by the Plaintff is statilte barred The failure by the Plaintiff to give the required notice has

deprived the Defendant of the opportunity to investigate the words complained of or to publish if

appropriate a correction or apology to the Plaintiff

Ftu ther and in the altenzative the Defendant states the Plaintiff has not commenced an action

within tluee months after the libel has come to the Plaintffs knowledge or if the action was commenced

within tluee months of some of the libel coming to the Plaintiff s knowledge the Plaintiff has not

commenced the action within l year of the date on which the other libels came to the Plaintiffs

knowledge as required tmder section 6 of the Libel and Slander Act and accordingly the action

commenced by the Plaintiff is statute barred or some of the allegatons are statilte barred as the case may

Ftu ther and in the altenzative with respect to paragraphs 6 through 36 of the Statement of Claim

the Defendant admits to broadcastzg blog postings that contain in some instances the words pictttres

and sotmds that are complained of by the Plaintiff However in some instances the Plaintiff has not

quoted acctuately from the postings of the Defendant as described ftu ther in the Statement of Defence

The Defendant in all cases denies that the words pictures or sotmds of said broadcasts or postings were

libelous or defamatoly to the Plaintiff The Defendant states that he was exercisinghis right to freedom of

religion and expression and that the statements of the Defendant were either true or they constitilted

expression of opinion and were fair comment

The Defendant states that the Plaintff is a public figure within the Anglican Chttrch of Canada

and the Diocese of Niagara In his role as Bishop of the Diocese of Niagara the Plaintiff is often called

upon to make public statements pronotmcements and declaratons He delivers senzzons or homilies or

writlen works wherez he makes statements concerning religion doctne and church policies He has also

been the subject of newspaper jounml and videotapedintenriews

The statements pronouncements and declarations of the Plaintiff along with pictttres or sotmds of

the Plaintiff are sometimes reported in publications of the Anglican Chttrch of Canada such as The

Anglican Jourlml or the Diocese ofNiagara such as The NiagaraAnglican and other publications In

some of the postngs the Defendant has quoted from those publicatons The Defendant states that he has

fairly quoted from those publications and then has followed the quotations with other writings pictures or

sotmds that are expressions of opzionby the Defendant and constitute fair comment

The Anglican Chttrch of Canada and the Diocese of Niagara are hybrid organizations wherein

some decisions of Chttrch policy are made democratically at meetings called synods and other

decisions are made withz the hierarchy of Archbishops Bishops and clergy Other decisions are made at

a conglegational level by clergy wardens and parishioners within each parish The Plaztiff in his role as

Bishop of the Diocese of Niagara has substantal decision makzg power over matlers within the Diocese

of Niagara includzg appointment and placement of clergy in parishes budgets for the Diocese

declarations and pronouncements withz the Diocese and decisions regarding property and legal affairs of

the Diocese and the parishes within the Diocese

Ftu ther and in the alternative in his broadcasts the Defendant regillarly comments on decisions

pronouncements and declarations that are made by many people including leaders within the Anglican

Chttrch of Canada and the Plaintiff The Defendant states that he holds certain religious and political

beliefs and that he expresses his opinions in his blog z a mamler that constitiltes fair comment

Ftu ther and in the altenzative the Defendant states that pttrsuant to Section 2 of the Canadln

Charter of Rights and Freedoms Constllutln Act 1982 IILKI Schedule B the Charter the

Defendant inter alia

has the following ftmdamental freedoms

a freedom of conscience and religion

b freedom of thought belief opinion and expression including freedom of the press and other

media of commtmication

In the broadcasts complainedof in the Statement of Claim the Defendant was exercisinghis rights under

the Charter and states that the Plaintiff is atlempting to unduly limit his right to do so If the Cottrt finds

that the Plaintiff is atlempting to tmduly limit the Defendants Charter rights under Section 2 a and 2 b

the Defendant asks that this action be dismissed and that the Plaztiff shall pay the actual legal fees and

disbursements inctmed by the Defendant as between a solicitor and his omz client

Ftu ther and in the altenzative many of the broadcasts made by the Defendant are intended to be

humorous and make use of satire sarcasm irony hyperbole wit send up and other types of humottr to

make a point other than what one would take literally from the comments In those cases no reasonable

viewer or reader of the blog postings would be expected to believe that the statements are true nor did the

Defendant ztend the statements to be taken as true The Defendant has used such humottr in the blog

postings that are complained of in paragraphs 6 14 16 23 25 28 and 30 36 of the Statement of Clazz

The Defendant states that such use of humottr constitiltes fair comment and is not defamatoly or libelous

to the Plaintiff

Ftu ther and in the altenzative the Defendant states that in certain of the broadcasts complained

of there are true facts contained in the blog postzgs made by him including excerpts from publications

and websites of the Anglican Chttrch and other publications The Defendant supplements those true

comments photoglaphs videos or quotations with expression of opinion or by juxtaposition of other

comments or photographs in order to make a point or to elicit a humorous response The Defendant states

that such writings pictures and sotmds constitilte fair comment and are not defamatolyor libelous to the

Plaztiff

Ftu ther and in the altenzative the Defendant pleads the following with respect to specific

paragraphs of the Statement of Claim

With respect to the words complained of in paragraph 8 of the Statement of Claim the

Defendant states that the words complained of are not the words contained in the

broadcast

With respect to the words complained of in paragraph 9 of the Statement of Claim the

only words that are complained of that are of and concenzing the Plaintiff are Bishop

Michael Bird has been more reticent The other words are about Bishop Michael

Ingham the Diocese of Niagara and the Mglican Chttrch of Canada none of whom are

named as plaintiffs

With respect to paragraph l l of the Statement of Claim the words complainedof are not

the words contained in the broadcast The Defendant also states that the comments made

in the blog posting were not of and concenzing the Plaintiff but rather relate to the

Diocese ofNiagarawhich is not a plaintiff

With respect to the words complained of z paragraph 23 of the Statement of Claim the

words complazedof are not the words contained in the broadcast







With respect to paragraph 31 of the Statement of Claim the blog posting by the

Defendant is not of and concenzing the Plaintiff and makes no reference to the Plaintiff



Ftu ther and z the altenzative the Defendant denies that he was actuated by malice in

broadcastzg the writzgs picttues and sounds on his website

Ftu ther and in the altenzative the Defendant states that the Plaintiff has not suffered any

damages as allegedor at all

Further and in the altenzative the Defendant states that the Plaintiff has failed to mitgate his

damages in that he failed to notify the Defendant or complain to the Defendant in a timely mamler

thereby elzlinating the opportunity for the Defendant to remove or correct the material complained of or

to issue an apology As soon as the Defendant learned of the Plaintffs action the Defendant removed the

postings complained of from his website notwithstanding that the said postzgs were not libelous or

defamatoly to the Plaintiff

Ftu ther and in the alternative the Defendant states that the relief sought in paragraphs l b and

l c of the Statement of Claim is inappropriate given that the writngs pictttres and sounds complazedof

by the Plaztiff constitilte a small fraction of the broadcasts of the Defendant and to grant such relief

would have the effect of tmduly restlicting the rights of the Defendant tmder the Charter Ftu thenuore the

Defendant upon leanzing that the Plaintiff complained of certaz postings has removed all postzgs that

were complained of by the Plaintff notwithstanding that the said postings were not libelous or

defamatoly to the Plaintiff

The Defendant asks that the action of the Plaintiff be dismissed with costs zcluding costs as

between a solicitor and his omz client if the Court finds that the Plaintiff is atlempting to tmduly limit the

Defendants rights tmder the Charter

April 3 2013 DOUGLAS J SIMPSON

Barrister and Solicitor

27 1375 StephensonDrive

Btulington ON

L7S 2M5

Douglas J Simpson 2222514

Tel 647 427 5512

Fax 866 298 7787

E mail dougttlegalsystematicscom

Lawyer for the Defendant

GRAYDON SHEPPARD PROFESSIONAL CORPORATION

Barristers At lsaw

l95 James Street South

Hamilton ON L8P 3A8

Atlention Graydon Sheppard l3 l40G

Lawyer for the Plaintiff

BIRD

Plaintiff

Court File No 13 39652

ONTARIO

SUPERIOR COURT OF JUSTICE

PROCEEDING COMMENCED AT

HAMILTON

STATEMENT OF DEFENCE

DOUGLAS J SIMPSON

Barrister and Solicitor

27 1375 Stephenson Drive

Burlington ON

L7S 2M5

Douglas J Simpson 2222514

Tel 647 427 5512

F x 866 298 7787

E mail dougttllegalsystematicscom

Lawyer for the Defendant

JENIGNS

Defendant

Documents

Statement of Defence of David Jenkins Dated April 3 2013pdf