Is this a surprise that the published judgment of the lost case
in a Canadian Court was never made known to Singaporeans ?
“LKY
loses motion in Canadian Court”.
20 August 2002
Case Name: Yew v. Globe and Mail
Between
Lee Kuan Yew, Plaintiff,
and
The Globe and Mail, Thomson Canada Limited, William Thorsell,
Margaret Wente, Marcus Gee, Devan Nair, Defendants
[2002] O.J. No. 16
Court File No. 99-CV-171574
Ontario Superior Court of Justice Greer J.
Heard: November 28, 2001.
Judgment: January 7, 2002.
(20 paras.)
Counsel: Julian Porter, Q.C. and Odette S. Soriano, for the
Plaintiff.
Sean Dewart, for the Defendant.
1 GREER J.: The Plaintiff, Lee Kuan Yew ("Lee") is the former
Prime Minister of the Republic of Singapore and is now Senior
Minister of Singapore. He took offence at the content of an article
entitled "Singapore Sage", which appeared on March 29, 1999, in the
Globe & Mail. The article was written by Marcus Gee about
Singapore, the government of Lee and included an interview with the
Defendant, Devan Nair ("Nair"), a former President of Singapore
from October 1981 to March of 1985. Nair is now a resident of
Hamilton, Ontario. Nair had once been the head of Singapore's most
powerful trade union association, and he believes that he had been
perceived by Lee as being a potential political threat. By
Statement of Claim dated June 19, 1999, Lee sued the above-named
Defendants, saying that he has suffered damage and "been brought
into hatred, ridicule and contempt", by reason of the libel he says
is contained in the article.
2 Nair, in his Statement of Defence and Counterclaim dated July
6, 2001, by way of Counterclaim, claims damages for the tort of
abuse of process. The abuse is said to include, but is not limited
to loss of income, out-of-pocket expenses, unrecoverable costs, and
mental anguish, distress and anxiety associated with defending the
litigation financed on Lee's behalf with the essentially unlimited
resources of the Government of the Republic of Singapore. Nair says
this could prove to be financially ruinous to him.
3 Lee moves for an Order striking out the Counterclaim in its
entirety on the grounds that the Counterclaim for the tort of abuse
of process, on its face, fails to plead the necessary elements of
the tort. He says that the Counterclaim discloses no reasonable
cause of action and that it is scandalous, vexatious or an abuse of
process of the Court. Finally he says that it constitutes, includes
or directs an inflammatory attack on the integrity of the
Government of Singapore, which is not a party to this action.
Some of the background
4 The article notes that Nair left Singapore in approximately
1988, and did not return, after "publicly quarrelling with Mr. Lee
over the arrest of a well-known government critic. Then he dropped
from sight." It sets out the earlier history between the two men,
when they both fought together to prevent an attempted takeover of
Singapore by the Communists and helped build their country to an
"economic dynamo bristling with skyscrapers." It also sets out some
of the problems Nair experienced when he and Lee began disagreeing
about how Lee was governing Singapore and how Nair found himself
the centre of a "rumour-mongering campaign that labelled him a
drinker and a womanizer." Nair says that he was neither. The
article says that Nair suspects that Lee had government doctors
slip him hallucinatory drugs to make him appear befuddled in order
to "begin a total demolishment of his character. He's very good at
that." The article then says that "Singapore doesn't lock up its
critics any more; it sues them, instead", noting that a critic of
the government, Mr. Jeyarethnam has faced countless libel suits
from Mr. Lee and other members of his government.
5 Nair's Factum sets out, in some detail, more of what Nair says
Lee did to remove him as a political threat. This includes a white
paper tabled in the parliament of Singapore before Nair left,
because of Nair's public statements in opposition to what the
government was doing to oppress a leading dissident in Singapore.
Further, it is Nair's position that this action was commenced by
Lee for the collateral and improper purpose of silencing his
critics, including but not limited to Nair. In Singapore, this is
done, says Nair by fostering a climate of fear and intimidation
among residents.
6 It is Nair's position in paragraph 16 of his Factum that: Mr.
Lee is indifferent to his reputation among the readership of the
Globe & Mail, but has an established and well publicized record
within the Republic of Singapore for suing his critics for
defamation, and using other measures which are contrary to
established international rights in respect of freedom of
expression, with a view to silencing his critics.
7 It is within the framework of this background that the action
was brought on, and that the Counterclaim of Nair is structured.
Lee asks the Court to strike the whole Counterclaim.
The issues
8 Lee says that the issue to be determined by the Court is
whether it is plain and obvious that the Counterclaim cannot
succeed because the pleading does not disclose a reasonable cause
of action in that Nair has failed to plead the necessary elements
of the tort of abuse of process.
9 Nair says that the issues are what is the test on a motion to
strike a Counterclaim as not disclosing a cause of action; and does
the Counterclaim set out the two constituent elements of the tort
of abuse of process namely, that in prosecuting the action, Mr. Lee
is using the process of this court for a collateral and improper
purpose; and, that Mr. Lee has made an overt and definite act or
threat, separate and distinct from the proceedings themselves in
furtherance of this improper purpose.
Test on the Motion
10 Lee moves under rule 21.01(1)(b) of the Rules of Civil
Procedure to strike out the Counterclaim on the grounds that it
discloses no reasonable cause of action or defence. He says that
the libel is a precise, narrow libel, and claims that Nair has
invented false allegations in his Statement of Defence and
Counterclaim.
11 The court may also, under rule 25.11, strike out or expunge
all or part of a pleading on the ground that the pleading is
scandalous, frivolous or vexatious, or that it is an abuse of the
process of the court.
12 The test for determining whether a pleading should be struck
is set out by the Supreme Court of Canada in Hunt v. Carey Canada
Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321. Assuming that the
facts as stated in the Counterclaim can be proven, the Court said
in Hunt, supra, one must look to see if it is "plain and obvious"
that the Counterclaim discloses no reasonable cause of action. The
Court also notes that if there is a chance that the plaintiff might
succeed, then the plaintiff should not be "driven from the judgment
seat." In Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.), the Court
of Appeal, at p. 6 says:
On a motion to strike out a pleading, the court must accept the
facts alleged in the statement of claim as proven unless they are
patently ridiculous or incapable of proof, and must read the
statement of claim generously with allowance for inadequacies due
to drafting deficiencies.
Nor, should the Court dispose of matters of law that are not
fully settled.
13 The Court of Appeal in Prete v. Ontario (1993), 16 O.R. (3d)
161, [1993] O.J. No. 2794, Action No. C9963 at p. 9 of the Quicklaw
version, examines both the tests under rule 21.01(1) and rule
25.11. In that case, the Court was split on the issue of whether
the Court can look beyond the pleadings and determine if the action
has a chance of success. The majority found that it could not
because if you consider the statement of claim to be an abuse of
the process of the court, it can only be because it discloses no
reasonable cause of action. Weiler J.A, in dissent, found that the
Court could look beyond the pleading. Even if one cannot look
beyond the pleading, the pleading must be examined to see if it is
scandalous, frivolous or vexatious, or otherwise constituting an
abuse of the court's process.
The Tort of Abuse of Process
14 The two elements of the tort of abuse of process, both of
which must be pleaded, are whether the plaintiff, in bringing the
action, is using the court process for a collateral and improper
purpose; and whether he or she has made an overt and definite act
or threat, separate and distinct from the proceedings themselves,
in furtherance of the improper purpose. See: Tsiopoulos v.
Commercial Union Assurance Co. (1986), 57 O.R. (2d) 117 (Gen. Div.)
at pp. 119 and 120, where the Court notes that the process is very
narrow in scope. Further, the Court has noted that the alleged
collateral and improper purpose cannot be related to a direct or
indirect purpose or to an intended or unintended purpose such as
intimidation or the fact that it would impoverish the defendant.
See also: Dooley v. C.N. Weber Ltd. (1994), 19 O.R. (3d) 779 (Gen.
Div.).
15 The Courts have consistently held that the intention to
silence through a defamation action is not a collateral or improper
purpose, as this is a result, which naturally flows from the
litigation itself and is a legitimate purpose. See: Pizza Pizza
Limited v. Toronto Star Newspapers Ltd., [1996] O.J. No. 3227, (24
July 1996), Toronto 93-CQ-33824 (Gen. Div.), aff'd [1997] O.J. No.
3891 (C.A.).
16 The second element of the tort, that is an act or threat in
furtherance of the improper purpose, must be separate and distinct
from the proceedings themselves. If it is not, there cannot be an
abuse of process. This has been set out by Eberle J. in Teledata
Communications Inc. v. Westburne Industrial Enterprises Ltd.
(1990), 65 D.L.R. (4th) 636 (Ont. H. Ct.). The Court has also said
that there must be a nexus between any threat and the improper
pleading complained of. See: Dooley, supra at p. 791. It is Lee's
position that Nair's pleading in his Counterclaim, has not met the
two elements of the test.
17 Nair says that he has met the two-part test. He says that Lee
commenced the libel action for the collateral and improper purpose
of silencing all of Mr. Lee's critics, including Nair, but not
limited to him. It must be remembered, in examining what is in the
article itself, not only can the writer be considered a critic, and
Nair considered a critic, but others in Singapore and elsewhere,
who attempt to criticize Lee and his government's methods of trying
to silence critics and opposition, are open to silencing because of
what Nair says is a pattern of using the libel process to succeed
in generally using whatever measures Lee considers necessary to
thwart the "established international rights in respect of freedom
of expression." Whether or not this can be supported at Trial is
not for me to decide. It is, however, not scandalous, frivolous or
vexatious. Lee's action is being brought in a country which prides
itself in allowing freedom of political expression. Nair says that
this is not the case in Singapore, where there is a climate of fear
and intimidation among the residents.
18 Nair says that his situation can be distinguished from that
in Pizza Pizza, supra, where Cameron J. struck the counterclaim as
having a purpose concurrent with the legitimate purpose of the
plaintiff in bringing its libel action. Nair claims that there is
no legitimate purpose which could save Lee's libel action since Lee
is indifferent to his reputation among the readership of the Globe
& Mail. Nair says that Lee's action, "... is a mere stalking
horse intended to further foster and continue a climate of fear and
intimidation." I agree with Nair's position that the issue is
whether the "predominate" (as opposed to exclusive) purpose is
ulterior. Given the political and international aspect of the tenor
of the article, and given that Lee has seemingly no
residence/domicile or other connection to Canada, it is within the
scope of the test for Nair to argue that the predominate purpose is
ulterior. See: Hilltop Group Ltd. v. Katana, [2000] O.J. No. 2576,
Court File No. 96-CU-106768, where Campbell Colin J. examines what
Sharpe J., as he then was, set out in Scintilore Explorations Ltd.
v. Larche (1999), 48 B.L.R. (2d) 248. There Sharpe J. noted at p.
317 that the predominate purpose must "be outside the ambit of the
legal claim on which the Court is asked to adjudicate". I am
satisfied that the first element of the tort, as pleaded, has been
met.
19 Nair says that he has also met the second part of the test,
in that Lee has taken an overt act or step in furtherance of his
improper purpose in invoking the legal process. Nair says that he
was forced to resign as President of the Republic of Singapore in
March of 1985 and was falsely labeled as an alcoholic. Several
years later when Nair says he first spoke out politically for the
first time since resigning, Lee tabled a white paper in the
Singapore's parliament, which included extracts of a confidential
nature from Nair's personal medical records and correspondence.
Nair says this was done to silence his political views and Nair
says that Lee further threatened to and ultimately did arrange to
have Nair's pension withheld. Nair then left Singapore and did not
speak out politically from 1988 until he granted the interview for
the Globe and Mail article in question. Given these actions and
steps taken by Lee in Singapore to create a climate of fear and
intimidation of critics, Nair says that this new action is intended
to be and is a threat which is on-going and pervasive. Nair says
these overt acts and threats in the past by Lee against Nair only
went below the surface, but remained always there even though Nair
left Singapore and remained silent for over a decade. These threats
have resurfaced and re-emerged in this new libel action in the
country in which Nair sought freedom from political threats and
overt legal actions against him. To Nair, the threat is on-going
and pervasive, and in my view, it meets the second part of the
test.
20 I am therefore satisfied, in these unusual circumstances,
that Nair has met the two-part test. Lee's Motion is therefore
dismissed. If the parties cannot otherwise agree on Costs, I will
receive brief written submissions by them.
GREER J.
What is a ''half-truth'' that has been so cleverly coined
by the Great Shepherd, who is such an expert in this art that he
will be able to identify and fear the attempts at
half-truths as much as he will fear the lies
?
Some are so adapt at weaving the lies as truths, that no one can
possibly identify where the lies begin that
will morph into the real world as an illusory 'Truth'.
Singapore has been promoted as the oasis in a region that
is supposedly torn apart by political instability and economic
strifes - unfortunately, an oasis sometimes exist in the heat
as mirages to those who thirst for water.
