Update: Builder's defamation suit against Nenshi to be heard by jury, likely in 2016

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A six-person jury will decide whether Mayor Naheed Nenshi defamed home builder Cal Wenzel during the 2013 election campaign, a judge decided Monday.

It will also be a scaled-down lawsuit when it faces a jury, likely in 2016. Wenzel’s lawyer Loran Halyn told the court he would stick to claiming defamation and get rid of the claim of injurious falsehood, which means the Shane Homes founder won’t try to prove the mayor’s words harmed him financially.

The prominent suburban builder’s lawyer filed the lawsuit three weeks after Nenshi won re-election in 2013. He claimed Nenshi defamed Wenzel by telling CBC Radio the Shane Homes founder had broken election finance laws, instructed others to do the same, and was carrying on like someone from the Godfather film.

Nenshi had requested a trial with a jury, rather than with judge alone. His lawyer succeeded in persuading Justice K.D. Yamauchi that it will be a fairly brief, straightforward trial with a few witnesses from the development sector and political fray.

“There is nothing so complicated about defamation,” said Munaf Mohamed, the mayor’s lawyer.

Halyn argued it was premature to conclude the case won’t become too complex for a jury to reasonably handle. He said he may produce several defamatory statements Nenshi made to the press about Wenzel.

“So what if there were three or five or 500 statements?” Yamauchi questioned the builder’s lawyer.

The judge told Halyn he could always come back before the trial to better argue that this defamation claim is too complicated, but Nenshi has a right to have the case heard by his peers.

The Wenzel-Nenshi dispute stems from a secretly videotaped speech by the development executive to colleagues in November 2012. In that speech, Wenzel encourages others to join him in donating to industry-friendly council candidates that would oppose Nenshi’s growth policies, and he recalls a complaint that he had exceeded campaign donation limits by giving cash and staff support to Kevin Taylor, a Ward 7 challenger to Coun. Druh Farrell.

Nenshi said for months that the video, leaked to Global News, was proof Wenzel had helped form a candidate slate to undermine him. The lawsuit focuses on remarks in a CBC interview in October 2013.

“We had a scene right of outside of — out of the movie Godfather,” Nenshi said.

“We had a guy admitting that he broke the law in 2010 in favour of one candidate … We had a guy telling people in the room how to break the law in this election and going through every single race saying this is the councillor that will oppose Nenshi, make sure you vote for the guy that opposes Nenshi, make sure you give them money …”

In the lawsuit, Wenzel claims Nenshi knowingly made false statements for his own political gain. The mayor’s defence statement claims his comments were justified and fair political speech.

Wenzel had sued for both defamation and injurious or malicious falsehoods, which claim damaged reputation and damaged business or property, respectively. Halyn said he would drop the latter claim, which means Wenzel won’t have to make public his finances or his family-owned company’s.

“We don’t have to get into a long debate about financial statements and what they mean,” Halyn said.

Both Nenshi and Wenzel have been questioned in pre-trial proceedings. Nenshi aide Chima Nkemdirim will also face private examination this spring, at the Wenzel team’s urging.

Mohamed speculated in court about other potential witnesses who could be called in a two-week trial: Taylor, now a Shane Homes executive; fellow home builder Jay Westman; Preston Manning, whose Manning Centre conservative group received large donations from Wenzel and other builders; and current or former city councillors.

Wenzel is seeking $6 million in damages, although million-dollar defamation awards in Canada are exceedingly rare. No jury has ever awarded above $3 million.

Neither the mayor nor the homebuilding executive attended the court hearing Monday.

Nenshi is currently paying his own legal costs, but council may decide later to cover them through the city’s insurance.

jmarkusoff@calgaryherald.com