A hearing to have the lawsuit against Harper and a long list of other defendants thrown out was held Wednesday and will continue Thursday.
Harper's lawyer, Robert Staley, picked apart the claims made by Guergis in a lawsuit that was filed in December and told Judge Charles Hackland that it has little substance.
"It's not a proper pleading," he said. "This is just plain bad." It fails to meet a number of legal tests, lawyers for Harper and the other defendants argued throughout the day, and shouldn't be allowed to proceed.
Staley pointed to a decision by the Canadian Human Rights Commission in November that concluded Guergis's removal from cabinet and caucus in April 2010 were not justiciable actions. He said the same findings — that Harper's decisions are protected by the principles of Crown prerogative and parliamentary privilege — should apply in this case. Similarly, the Conservative Party of Canada is not at fault for preventing Guergis from running as a Conservative candidate – it's not a legal matter, the court heard.
In other words, the prime minister has the authority to decide who is in or out of his cabinet and caucus and any actions flowing from those decisions are protected from legal action. The judge was also told that cabinet decisions are purely political and that it's not for the courts to get involved in matters that are at "the heart of politics."
Guergis's lawsuit makes claims of conspiracy, defamation, misfeasance in public office, negligence and infliction of mental suffering.
The former Conservative MP for Simcoe-Grey in Ontario and minister of state for the status of women is suing for general damages of $800,000 plus punitive damages of $250,000 and aggravated damages of $250,000. After the controversy, she was not allowed back into caucus or to run again as a Conservative candidate. She ran in the 2011 election as an Independent candidate and lost.
She is not only suing her former boss, but also:
- Labour Minister Lisa Raitt.
- Conservative MP Shelly Glover.
- Guy Giorno, Harper's former chief of staff.
- Ray Novak, Harper's principal secretary.
- Arthur Hamilton, the Conservative Party's lawyer.
- Cassels Brock & Blackwell, Hamilton's law firm.
- The Conservative Party of Canada.
- Derrick Snowdy, the private investigator who helped spark controversy around Guergis.
- Axelle Pellerin, a former staff member with Raitt who also worked for Guergis at one time.
Letters not malicious, defamatory
Staley also argued that Harper was fully entitled to write letters to the RCMP and the ethics commissioner about the allegations he had been made aware of by the Conservative Party's lawyer, Arthur Hamilton.
Derrick Snowdy, the private investigator who was involved in sparking controversy around Guergis and her husband, Rahim Jaffer, had passed on the allegations to Hamilton. They related to fraud, extortion, obtaining benefits by false pretences and involvement in prostitution.
No allegations about Guergis's conduct have ever been proven, and in her statement of claim she denies any such illegal conduct. The RCMP also cleared her of any wrongdoing.
Staley said the tone of the letters was not malicious and there was nothing defamatory in them, as Guergis claims. It was entirely lawful and appropriate for Harper to ask the RCMP and ethics commissioner to investigate the allegations from the third party that had been passed on to him, his lawyer argued.
Guergis also complains that because she was never given copies of the letters, Harper, Giorno and Novak acted in bad faith and maliciously toward her. Harper's lawyer argued she was not entitled to them and no right has been violated.
Harper's legal team also rejected Guergis's claims that Harper and the others made defamatory statements about her on different occasions. Everything in the letter to the RCMP was true, and in any case, conversations among the relevant players are protected by absolute privilege, they argued.
Staley said the notion that Harper and the others entered into a conspiracy to remove Guergis from her political positions, as she alleges, is "preposterous. "
Guergis gave no facts in her statement of claim to substantiate her claim that they engaged in a conspiracy, Staley said.
"You don't get to make this stuff up," he said.
Similarly, lawyers argued that Guergis hasn't backed up her claim that her health has suffered because of what happened.
Lawyers for Giorno, Novak and Pellerin all argued that the privilege protection also applies to them because they were acting as officers of state, discussing matters that are related to the state, and acted at the direction of Harper and Raitt.
Pellerin's lawyer, Wendy Wagner, argued for example, that Pellerin had a duty to report to Giorno that Raitt had told her that she had seen Guergis using cocaine in the bathroom of an Ottawa restaurant in December 2009. Pellerin and Giorno had that conversation in December or early 2010, according to Guergis's statement of claim.
Guergis claims that Raitt and Pellerin both committed defamatory acts because her alleged use of illegal drugs is false and and that talking about it resulted in damage to her reputation, political career, health and well-being. Guergis says in her statement of claim that she has never used cocaine or been in the presence of others using it.
Wagner shot down the defamation claim and said Pellerin did not go out and spread any rumours, she did not publicly share the information she had been told on a blog or on Twitter, she simply reported it to Giorno.
"She had a duty to communicate those allegations," Wagner told the court.
Lawsuit called an abuse of process
The prime minister's lawyer told the judge Guergis is just trying to dress up her failed human rights complaint and that it's an abuse of process to bring the matter to the courts. It should be dismissed and Guergis should be given no chance to revise it. Staley said. Guergis has asked the court to give her leave to amend the original lawsuit if the motion to dismiss it is successful.
Harper's motion to dismiss the lawsuit was filed in May and it was also filed on behalf of Raitt, Glover and Novak. Giorno also filed a similar motion.
The hearing will resume at 10 a.m. Thursday.
Lawyers for all of the parties except Snowdy were in the Ottawa courtroom, but according to a document he filed with the court this week it appears as though he is representing himself. Snowdy filed a statement of defence that denies the allegations against him in Guergis's lawsuit. He said he has no knowledge of any conspiracy and that any communications regarding Guergis that he had with Hamilton, or law enforcement agencies, were either fair comment, truthful or protected by privilege.
Snowdy was originally linked to Guergis because he was investigating her husband's business affairs. After an explosive story about Jaffer and Guergis was published in the Toronto Star on April 8, 2010, Snowdy received a phone call from Hamilton and discussed details of the story with him. According to Snowdy's court document, he said when he met with Hamilton on April 9 he "provided him with information of concern and for follow up" and that it concerned conduct related to Guergis and Jaffer.
He lists several examples of that conduct, including Jaffer's use of a parliamentary email address, that Guergis used her office to get a visa for Jaffer to travel to China, and that Jaffer made inquiries to the office of Treasury Board President Tony Clement (industry minister at the time) about national defence satellite systems.
Snowdy says he offered to tell Guergis all of the information he told Hamilton, but that he wasn't taken up on the offer. He says she has no cause for action against him.
"Guergis is the author of her own misfortune," he writes.
Read Meagan Fitzpatrick's liveblog from court: