Okay, so, here’s the detailed analysis I was promising. For those of you who were impatient for this to happen, I can only say we were waiting on the written decision.
As you can see from this screenshot, which I took at around 10:30AM on August 15, the decision itself hasn’t been uploaded to the publicly accessible database. So 15 days after the decision was read in court, it still wasn’t up. Alison finally ordered a transcript be produced at HBB’s expense.
Why wait for the transcript? Because going by memory and notes regarding a complicated oral decision isn’t the best way to go. No one but the court itself is allowed to video or audio record anything that goes on inside the courtroom. They create transcripts based on their recording, and do not make the recordings themselves available.
I balked at going from memory. I don’t want to get things wrong. There were a few things I have commented on publicly, but they’re things I was VERY certain of, things that stuck out in particular, and there’s just no way a lengthy oral decision can be memorized (unless you’re some kind of savant, which I’m not).
So. At long last, here we go.
I’m going to go point by point, reading the judge’s reasons individually, and then commenting on them immediately thereafter. The first bit is just a general description of the basic details of the case—who’s suing whom and why. No need to get into that.
So. Let’s get right into the reasons. (Quotes from the decision are in bold, my commentary follows in normal font.)
Judge notes that:
In brief, the defendant Calgary Comic alleges the plaintiff breached the defendant’s policies and were removed as an exhibitor. The contract is comprised of an application form being submitted with appropriate fee and acknowledgement that, among other things, the plaintiff would adhere to Calgary Comic’s policies.
The plaintiff’s expenses in preparing for, travelling to, and setting up at the expo may be recoverable damages in whole or in part in the breach of contract action if a breach is established. The removal of the plaintiff’s booth partway through the exposition was at the defendant’s discretion subject to contractual obligations. The plaintiff had full knowledge of what she was signing and what she was signing up for. The defendant, Calgary Comic, is a private commercial operation, and perspective applicants are free to apply or not, as they wish.
The plaintiff asserts the notion of unequal bargaining power ought to be a consideration. The unequal bargaining power submission is not applicable in these circumstances. She applied to be an exhibitor with eyes wide open, fully knowledgeable with respect to the terms and conditions under which the defendant operated and to which she was subject.
Yet the documents attached to the contract stipulate that all complaints will be investigated and describes its investigative process (which includes getting both sides of the story); and that a step by step process of remedy will be used to remedy sustained complaints—namely that the first step will be to ask the offending party to cease the offending conduct or remove the offending materials.
Further, the policy documents describe “unwarranted accusations” as a form of harassment.
What this means is that Alison had an obligation to abide by the terms and conditions spelled out not only in the application form, but in the policy documents attached to the application.
So basically, what Alison was “signing up for” was spelled out in those documents, including the policies and processes Calgary Expo had outlined regarding their complaints and investigation procedures, as well as their procedures for remedy.
The only clause in the contract relieving Calgary Expo from its own duty to abide by the terms it had laid out reads as:
“The CCEE shall have the full power in the interpretation and enforcement of all contract regulations contained herein, and the power to make such amendments thereto, and such further rules and regulations as shall be considered necessary and proper.”
Not only is this clause arguably in violation of the Alberta Consumer Protection Act and something that should never stand up in court (and usually does not), in that it grants Calgary Expo the authority to ignore its own contractual obligations as stated by it in its own documents, it does indeed raise the issue of unequal bargaining power.
If Party 1 to a contract is signing a contract filled with terms and conditions written entirely by Party 2, while a single clause in that contract indicates that Party 2 is effectively signing a blank piece of paper upon which it can choose to write anything it wishes, then the contract is not actually a contract.
Many contracts used as boilerplate by corporations like the Expo include such clauses, despite their dubious ability to succeed in court, because rubes and noobs who read that clause will believe they have no legal recourse and won’t file a lawsuit or a complaint with consumer protection agencies.
What the judge seems to have done is uphold a clause that is in direct violation of consumer interests and consumer protection laws in Alberta, because that’s the only way I can see him claiming that Alison had an obligation to live up to the terms and conditions in the policy documents and the Expo did not.
There was no misrepresentation by the defendant of any sort, and no evidence of bad faith. In fact, evidence shows the plaintiff’s application and the plaintiff were dealt with fairly and in a courteous manner, at least up to the point of expulsion.
Yeah, things were going great, until they weren’t. Calgary Expo treated Alison fairly, right up until they decided not to. My tenant paid the rent on time every month, until she stopped. My spouse was faithful to me, right up until he cheated. I paid my credit card balance, until that period of 6 months when I didn’t.
This assertion is irrelevant and nonsensical. It has zero bearing on whether a contract was violated. That guy had no cause to complain about my behavior, at least until the point where I punched him in the face for no reason. Good grief.
The defendant, Calgary Comic, received complaints about the plaintiff’s participation at a panel discussion and also about a banner at her booth. The defendant investigated. The investigation was not thorough in that the plaintiff had little, if any, opportunity to provide her version of events.
First thing, Alison didn’t have little if any opportunity to give her version of events. She had NO opportunity to do so. She even informed Calgary Expo’s chief of operations, Shayne Henkelman, that she had an exculpatory recording of the panel discussion, and he refused to even consider listening to it.
I suppose, “little, if any,” might be applicable to, “but I’m innocent, and can prove it.” But at the same time, Henkelman testified that the decision was made before he even spoke to Alison that morning, with no opportunity for her to give her version.
Secondly, how is this “not thorough” investigation sufficient to come to a decision to evict, if the contract Alison signed indicated that all complaints would be investigated by getting both sides of the story, and remedied in a gradual manner as outlined earlier?
The defendant said it received complaints from guests, news organizations, and from TheMarySue. It went online to learn more about the prominent Gamergate banner at the plaintiff’s booth.
To my knowledge, Expo received no complaints from the Mary Sue (or even employees or agents of the Mary Sue), nor did Shayne Henkelman testify that they did.
Also, complaints were received from the personal accounts of media personalities, but not from official news media accounts, as far as I know. It’s kind of like the difference between saying “Tucker Carlson tweeted X,” and “Fox News tweeted X.”
This is a really strange mistake for the judge to make, since HAD the Mary Sue officially complained about us to Calgary Expo, this would have helped to implicate them in any inducing breach of contract claim, particularly if the complaint had no merit.
The online information about Gamergate was unsavory, to say the least, and, in the view of the FBI, Gamergate is a vehicle used to disseminate hate messages among others.
Like the coverage of Alison and HBB following our expulsion? Unsavory like that?
Anyway, his assertion about the FBI is directly contradicted by the only evidence regarding them that was presented at trial. This position attributed to the FBI could not have even been found by improper, out of court research. The FBI investigated Gamergate over accusations that it was a hate movement, and it found no actionable leads. Law enforcement identified four individuals who’d sent potentially illegal messages, one of them a minor, and chose not to prosecute any of them. One was clearly a joke (at least to anyone who’s ever spent any time online), claiming to have “over 9000 bombs” and another prescribing tea, hugs a gentle back massage and face-melting high ordinance explosives for feminists.
With respect to the breach of policy application, in order to succeed, the plaintiff must show on a balance that the defendant Calgary Comic’s reliance on its policies was sufficiently unfounded to constitute a breach of its contractual obligations.
Regardless of the quality of the investigation and regardless of the fact that the defendant’s reasons for its decision may well have been debatable, it had the contractual right to remove the plaintiff’s booth subject, of course, to its contractual obligations to the plaintiff.
Wait, aren’t those obligations spelled out in the exhibitor agreement and other policy documents attached to the contract? Again, we’re back to this idea that vendors have an obligation to abide by the terms and conditions laid out by the Expo, while the Expo has no such obligation.
And again, we’re back to that sticky “we reserve the right to do whatever we want for any reason or no reason whatsoever” clause that, if legal, would certainly make unequal bargaining power a consideration.
The plaintiff denied being disruptive at the panel discussion and provided a transcript and audio recording to support her assertion. Both the tape and transcript are somewhat supportive of the plaintiff’s position. However, the quality of the recording makes it difficult to discern what is said and by whom. I recognize the difficulty in marshalling this kind of evidence. However, I don’t know if the portions provided are the complete exchange in issue, much less whether they are the portions complained of.
First off, the judge spent much of the trial reminding counsel and witnesses to speak up because he’s hard of hearing. I would suggest that it being “difficult to discern what is said and by whom” might be owing to a disability on the part of the judge rather than on the quality of the recording.
In addition, the judge had ruled against listening to the entire recording at trial. When asked why she wanted to play the entire thing, Alison responded that she wanted her participation to be viewed in the context of the entire discussion. Defence didn’t want to listen to the whole thing, and neither did the judge, and BOTH indicated they would take her word for it that the excerpts were satisfactory in that regard. For the judge to now complain about the incompleteness of evidence he himself ruled against hearing in full is… well. Moving on.
While debatable, I cannot conclude on balance that there is sufficient credible evidence to conclude Calgary Comic’s assessment of the information it received and gathered and its application of that information to its policies was a sufficiently inadequate misinterpretation or a misapplication so as to constitute an improper application of its policies and thus a breach of its contractual obligations with the plaintiff. Thus, there is insufficient evidence to support the breach of contract claim against Calgary Comic, and accordingly, that claim is dismissed.
Policies which state clearly that an investigation involves getting both sides of the story, that unwarranted accusations are a form of harassment, and which also state that remedy begins with asking the offending party to cease the offending conduct—that is, putting people on notice. The Expo acted precipitously and summarily on information it received and gathered from everyone BUT the plaintiff, and bypassed all of the steps it outlined for remedy to level the most extreme punishment available to it—not just expulsion, but a blanket ban on attendance of future conventions.
Further, Henkelman testified on the stand that even had he known that all of the allegations in the various complaints against Alison made to Calgary Expo were false, he’d have ejected her anyway.
What we are left with is Alison’s alleged “association” with a hashtag called Gamergate, standing as the sole reason for her being evicted.
However, there was NOTHING in the contract or the surrounding policies or exhibitor agreement putting her on notice that presenting a Gamergate logo on a banner promoting anti-censorship and pro-ethics values would be in violation of ANY of the Expo’s policies. There was nothing in the contract or policies prohibiting expressing affiliation with ANY movement, hashtag, political opinion, cause or philosophy.
Inducing breach of contract:
With respect to the inducing breach of contract claim regarding TheMarySue, the defendant, Calgary Comic’s representative testified he had no contact with TheMarySue apart from receiving the complaint about the events in question prior to the decision to expel the plaintiff from the exposition. There is suspicion by the plaintiff that TheMarySue and Calgary Comic may have collaborated or colluded and that TheMarySue may have slagged the plaintiff, thereby inducing Calgary Comic to act as it did, but there is insufficient credible supporting evidence in that regard, and thus the inducing breach of contract claim against TheMarySue is dismissed.
This is not accurate. Again, Calgary Expo received no complaints from the Mary Sue, or from any agent of the Mary Sue. He may be referring to the complaint from Brittany LeBlanc, but neither Alison nor Shayne ever said there were complaints from the Mary Sue.
As for the suspicion of collusion, yes, this was our suggestion in our initial filing. However, the scenario we presented at trial and during final submissions, after more digging and the evidence exchange, was very different. The scenario we presented was that Sam Maggs sent a photo of our booth to her friend and collaborator in Toronto, Soha Kareem, who tweeted it out. This single tweet was what led to ALL of the complaints on social media from guests and news media personalities that Henkelman cited as the ultimate reason he kicked us out (that is, the complaints led him to take other actions which led to that decision).
In addition, our contention was that Sam Maggs spoke privately to Brittany LeBlanc and convinced her to complain to Calgary Expo about Alison’s participation at the panel (which was another reason Henkelman cited in his testimony as contributing to his decision to kick us out).
So our contention at trial was that Sam Maggs, editor for the Mary Sue, intentionally set out to generate a social media controversy with us as the target, in order to create news for her website to then report on.
And wouldn’t you know it? The Mary Sue scooped the story.
We certainly had more evidence supporting our conjecture that Sam Maggs, in her position as editor of the Mary Sue, orchestrated a social media controversy through a known associate, a social media controversy that was the ultimate cause of our expulsion (according to Henkelman). Yet the judge didn’t touch on this at all, not even to say it was far fetched, or a conspiracy theory, or even that our evidence of it was insufficient.
He just ignored it.
Injurious falsehood, Calgary Expo:
There is insufficient credible evidence that the defendant Calgary Comic published anything, much less any false statements disparaging the plaintiff’s goods or property or business. Having her booth removed from the exposition for breach of the defendant’s policies, without more, does not constitute a false statement. Publication of the fact of removal of the booth for breach of policy, without more, is also not a false statement.
Really? I mean, I’ll grant that it is not necessarily a false statement. That is, if the breach of policy had occurred, or if a fair investigation adhering to Calgary Expo’s contractual obligations had occurred, even if the finding was wrong. A false statement doesn’t require someone to know the statement is false. Malice, in the context of false statements, can include not taking the proper care to check.
The Expo had contractual obligations to take proper care to check, as it itself laid out in its policy documents and attached to the contract. It did not do so prior to its decision that we had violated policy, nor before its publication of that information. Henkelman’s testimony describes a rush to judgment and summary execution completely devoid of taking proper care to check.
In fact, in his final submissions, he described this as the first and only case in which he himself ever kicked anyone out of one of the events run by Calgary Expo. Are we to believe that no one else has ever been ejected from a fan expo in western Canada? Or are we to believe Mr. Henkelman’s testimony, that he, as Expo’s chief of operations took it upon himself to unilaterally bypass all of the Expo’s dedicated personnel and procedures, and its obligations as spelled out in the policy documents to make what amounted to an executive order in violation of its contractual obligations?
Publication by others of the expulsion and the purported reasons for the expulsion are not actionable against the defendant Calgary Comic. The defendant Calgary Comic did not publish the fact of the expulsion or the reasons for it. Tweets by others posted on the Calgary Comic website about the expulsion were quickly removed by it. Alternatively, if the tweets by others could be characterized as publication by Calgary Comic, there is insufficient credible evidence that the tweets contained false statements about the plaintiff’s property, goods, or business.
No no no. First, tweets were not published on Calgary Expo’s website. They were published on Twitter. Calgary Expo cannot remove tweets made by “others” from Twitter. It can only remove its own tweets. Further, it cannot make tweets made by “others” invisible to anyone but itself.
And secondly, in direct response to a tweeted query as to why we were kicked out, Calgary Expo’s official Twitter account tweeted the Mary Sue’s article. A tweet constitutes publication of everything contained therein, including links.
And finally, Henkelman testified ON THE STAND that he ordered the tweet deleted when he learned of its existence. His stated reason, under oath, for doing so was that the tweet was ACTIONABLE. In other words, Calgary Expo published actionable statements it knew might be false, and Henkelman ordered them deleted BECAUSE they were actionable.
His actions in deleting the tweet, and his stated reasons for doing so, were an admission that the tweet itself WAS INDEED actionable under the law. This tweet was not made by “others”, but by Calgary Expo’s official social media account, manned by employees and agents of Calgary Expo and working under Calgary Expo’s authorization.
If I am wrong that the defendant did not publish statements about the plaintiff’s goods, property, or business, there is insufficient credible evidence that any such purported statements were false.
This is… bizarre, since the tweet contained a link to the Mary Sue article, in direct answer to a query as to why we were kicked out. The article describes HBB as a business run by someone who lies on her business contracts in order to clandestinely gain opportunities to cause disruption and harass people. Alison did not lie on her contract. We did NOT sneak into the convention.
And while there, we harassed no one.
Of course, there is credible evidence. It’s there in the booth application. In our badges and booth decal identifying who we were. And the judge is the person who ruled we wouldn’t hear the entirety of the panel discussion that would have provided credible evidence that Alison had harassed no one.
In the further alternative, if I am wrong about the publication and falsity of content, there 1 is no credible evidence that the defendant Calgary Comic was motivated by malice. The 2 evidence showed the defendant received complaints about the plaintiff’s conduct and about 3 a banner at her booth and after some investigation chose to have her booth closed and 4 removed from the exposition.
He really seems to be wanting to cover all his bases. However.
Malice: a conscious, intentional wrongdoing of a civil wrong like libel, with the intention of doing harm to the victim. This intention includes ill-will, hatred, or total disregard for the other’s well-being.
Calgary Expo’s policies, attached to their contract, clearly state that unwarranted accusations are considered a form of harassment, and that its investigation of complaints will take into account both sides of the story.
Calgary Expo’s contravention of its own stated policies and procedures in this case certainly displayed no regard for the wellbeing of Alison when it summarily ejected her despite her telling them she had exonerating evidence.
When Calgary Expo promoted the Mary Sue article in response to questions as to the reason it had evicted Alison, it also did so with total disregard for her wellbeing. Calgary Expo’s social media team did not take time to verify whether the allegations in the article were true or false, which it could have easily done at least in regard to the “misrepresentation” claim, prior to tweeting the article.
And further, when Calgary Expo deleted the tweet, it did not do so to ameliorate any unjust damage done to Alison, but merely to protect itself from what it knew were legally actionable statements on its part.
To this day, Calgary Expo has not so much as corrected the public allegation that Alison lied on her contract with them, despite having submitted evidence to that effect to the court. Which certainly displays continued disregard for her wellbeing.
There is no evidence of animus towards the plaintiff or bad faith in investigating the complaints, notwithstanding Calgary Comic did not obtain the plaintiff’s input prior to its decision to expel.
Except that it did not follow the investigatory protocols laid out in its own policies and agreements. It refused to listen to evidence Alison claimed was exculpatory. That’s the definition of bad faith.
That Mr. Henkelman and the Expo were nice to us right up until the moment that they weren’t is immaterial.
Expo did not follow its prescribed step by step procedure for remedy even when someone is found to be engaging in offending conduct. It skipped over all of its normal procedures, and jumped directly from accusation to summary execution.
As to animus, Alison was informed that if her booth was not dismantled and all of us out within half an hour, Mr. Henkelman would call police and have us all arrested. He refused to provide us with tools when asked, so we could disassemble the booth without damaging it.
He testified that following our eviction he sent “spies” to infiltrate our social gatherings and report back to him. He put Stampede security on notice that we were a clear and present danger, such that Stampede security called police on our peaceful and completely innocent picnic at Reader Rock Garden.
No animus? I call bullshit.
Lastly, if I am wrong about publication, falsity, and malice, the plaintiff has not led sufficient credible evidence to establish special damages. Damages are not presumed, and general damages are not recoverable. The plaintiff incurred expenses to attend the exposition, but those expenses were not a result of this alleged actionable tort.
Good grief. Because being smeared in both mainstream and industry media can’t be reasonably expected to hurt your bottom line in your chosen industry?
Damages are not presumed, but a reasonable expectation of damages does not mean that the plaintiff must present an itemized list down to the penny of every loss suffered. It does not require a plaintiff to be clairvoyant and prove that, if not for the defendant’s actions, they’d have sold exactly 2113 units of merchandise.
The plaintiff’s husband testified that she had sold about 30 comics in her entire career.
Therefore, there were no damages? Plaintiff’s husband also testified that he had no real idea how many comics she’d sold. A subsequent witness testified that this estimate was way off.
Regardless, a subsequent witness who was manning the booth testified that 7 copies of Alison’s comic were sold in the first four hours of the convention alone. Projecting from this, Alison could have expected to sell a total of 50 to 60 comics over the full Expo, had she been allowed to stay. That’s double the lifetime estimate given, under pressure, from her husband, and it applies just to one event.
The plaintiff testified she experienced difficulty convincing store owners to carry her product after this event. There was insufficient evidence of the magnitude of her difficulties, much less a dollar amount to specify the amount of alleged special damages loss. Thus, the injurious falsehood claim is dismissed against Calgary Comic.
This is a mischaracterization. Alison testified that a store owner in Saskatoon had not only stocked her books, but had placed them on prominent display to promote a local artist. After the incident and the media fallout, that shop owner took down the display and cut her orders by 75%.
There is no down to the penny specificity requirement under injurious falsehood as to what determining there were special damages, nor a minimum amount necessary. If there is a reasonable expectation that Alison had lost out on the sale of just one book due to this fiasco, that would be enough to constitute special damages. The amount of the special damages only becomes relevant when deciding what, if anything, is owing to the plaintiff.
Injurious falsehood, The Mary Sue:
TheMarySue did not participate in the whole trial. It did not lead evidence nor cross- examine nor make submissions. It published an article after the expulsion. Some of the content may be false, and it may have been written maliciously. Assuming, without deciding, that there was publication, maliciousness and falsehood, I would dismiss the claim on the basis there was no credible evidence that the plaintiff suffered special damages attributable to TheMarySue publication. Thus, the injurious falsehood claim is dismissed against TheMarySue.
And again, there is no requirement for specificity regarding an exact dollar amount to prove special damages, nor a lower bound as to what is considered a pecuniary loss. A reasonable expectation of loss is sufficient to prove injurious falsehood.
Anyway, there’s so much that’s haywire with this decision, it’s not even funny. I think I counted a minimum of 16 grounds on which to appeal. And that’s not even considering some of the errors of factfinding that occurred.
The judge disregarded Henkelman’s own testimony that the Calgary Expo’s tweet was actionable.
His finding of no animus is completely belied by the manner in which we were kicked out—Henkelman refusing to hear exculpatory evidence and even threatening to have us arrested if we weren’t gone by the time the doors opened to the public. Henkelman advising Stampede security that we were a threat to safety at the convention, and sending staff members to spy on our meet-ups. No evidence of animus there.
And perhaps the most ironic thing of all was all of that animus appears to have been based on the egregiously biased, misleading and demonizing media coverage of Gamergate that falsely painted a hashtag and a consumer revolt as something sinister and dangerous. And the result of his actions? Egregiously biased, misleading and demonizing media coverage of Honey Badger Brigade and the events of April 2015.