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w w w . C A N A D I A N L a w y e r m a g . c o m J A N U A R Y 2 0 1 6 11 cellphone video, surreptitiously taken dur- ing a speech by Wenzel to other develop- ers, had found its way into the local media. In response to questions about that speech Nenshi said Wenzel, "admitted that he broke the law" in regard to city election financing. The mayor went on to call Wen- zel's speech "a scene right out of the movie Godfather." When Nenshi was asked by the CBC host if he had just called Cal Wenzel the Godfather, Nenshi replied "maybe." In Wenzel's statement of claim, in which he sought $6 million in damages, the developer asserted the mayor defamed him and damaged his reputation and his business. He claimed Nenshi knew or ought to have known no election cam- paign contribution limits had been violated and Nenshi was out "to smear Wenzel for political gain." He further alleged that the "natural and ordinary meaning" of the mayor's reference to him as the Godfather would be that "Wenzel is the head of a mafia-like organization that is working to disrupt municipal politics." In a detailed and unrepentant 40-page statement of defence, the mayor briskly asserted the truth of his remarks related to campaign financing and relied on a "fair comment" defence regarding the compari- son drawn between Wenzel and the God- father. He further pointed out that even Wenzel's friends and family have publicly referred to him as "the Godfather" Over the next two years efforts to settle went nowhere. Nenshi won the right to have the case heard in front of a jury. Wen- zel tried to have that decision overturned but in the end Gates, who was now seized of the case, turned down the developer's application to scrap the jury and ordered Wenzel to pay $10,000 in costs to Nenshi. It was in the course of these hearings that Gates offered to mediate. In the end, the deal both parties were ready to accept saw the veteran developer concede that "(i)n response to statements made by Cal Wenzel, Mayor Nenshi reasonably concluded that there was a potential for alleged violation of election laws that required further investigation." However, the statement continues, "Mayor Nenshi now understands, appreciates and states that Cal Wenzel's actions . . . did not constitute a violation of election laws." The mayor also conceded that he "did not intend to suggest that Cal Wenzel was the head of, nor a participant in, a criminal organization, or that [he] was involved in organized criminal activity." There were also mutual apologies regarding personal remarks. At the height of the dispute, Nenshi described Wenzel's suit as a strategic law- suit against public participation. Critics argue a SLAPP is nothing more than a libel action brought by deep-pocketed interests not so much to recover costs as to intimi- date critics into silence. Interestingly in the joint news release announcing the settlement, Wenzel acknowledges "the effect that lawsuits against politicians can have on political discourse and public debate, namely that such lawsuits can have a chilling effect on the ability of politicians to represent their views. Cal Wenzel states that this was never his intent." So, thanks largely to the judge's actions, what promised to be a major courtroom confrontation ended quietly with Wenzel extracting a guarded apology from Nenshi. The lawyers in the case were for Wen- zel: Ariel Breitman a partner with the Cal- gary firm MacPherson Leslie & Tyerman LLP; and for Nenshi: Munaf Mohamed a partner with Bennett Jones LLP. — GEOFF ELLWAND writerlaw@gmail.com \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP I t started out as a difficult personnel problem in the University of Calgary's satellite nursing school in the Gulf state of Qatar. Almost a decade later, it has metamorphosed into controversy surrounding freedom of information and is headed for the Supreme Court of Canada. The court will be asked to rule on what at least one critic calls a "dangerous" attack on freedom of informa- tion. The story begins in Doha, Qatar in 2007. A woman identified in court documents as JR was hired as a contract employee for the University of Calgary's nursing school there. The job proved stressful, with among other things personality clashes and unproven allegations of sexual harassment and procurement irregularities. In early 2008, JR took sick leave related to a series of medical and psychiatric problems. Ulti- mately, she was fired. She sued the university, alleging wrongful dismissal. After a 17-day trial, she won her suit and was awarded more than $116,000 in damages. JR's involvement with the matter ended with that award. But before she left the scene, while preparing for her suit, JR made a freedom of information request asking the university to provide access to all e-mails, files, letters, records of discussion, and third-party correspondence. The university made some disclosure, but JR was not satisfied and asked Alberta's Information and Privacy com- missioner to investigate. The commissioner sought fuller disclosure, but the university refused to co-oper- ate. It cited solicitor-client privilege over "communications given and received by the university's lawyers in respect to this matter." The university argued the commissioner did not have the authority to compel production of documents over which the uni- versity, or any public body, asserts solicitor-client privilege. The matter worked its way up to the Alberta Court of Appeal and the highest court in the province found in the university's favour. Now, Alberta Privacy Com- missioner Jill Clayton has won the right to take her appeal to the Supreme Court of Canada. She characterized the case as having "significant implications for upholding the access rights of Albertans." FOI advocates such as Ottawa lawyer Michel Drapeau calls the episode "a danger- ous precedent" and argues if it is upheld government agencies will be able to shield information from the public by relying on solicitor-client privilege, something he characterizes as a "convenient tool." The Supreme Court is expected to hear the matter later this year. — GE FOI FIGHT GOES FROM DOHA TO THE SCC TODD KOROL / REUTERS

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