President Devan Nair countersue MM Canadian court in 1999???

maurizio13 SG

Lee v. Globe and Mail (Nair v. Lee)

In March 1999, the Globe and Mail published an article about Singapore and its former Prime Minister Lee Kuan Yew. The article included an interview with the former head of Singapore's most powerful trade union, Devan Nair. Nair had also been President of Singapore from 1981 to 1985. Nair and Lee had once worked together, but became political rivals in the 1980's.

In the article, Nair alleged that, when he and Lee began disagreeing about how Lee was governing Singapore, he became the centre of a rumour-mongering campaign that falsely labelled him an alcoholic. He was forced to resign as President in 1985. The article also discussed the many libel actions Lee and other members of his government have brought against their critics.

Lee, who is still a minister in Singapore's government, sued the Globe and Mail and Nair for defamation, alleging that the article brought him into hatred, ridicule and contempt.

Nair countersued, seeking damages on the basis that Lee's lawsuit was an abuse of process. In turn, Lee brought a motion to have Nair's counterclaim thrown out of court. Lee argued that Nair's counterclaim disclosed no reasonable cause of action and constituted an inflammatory attack on the integrity of the government of Singapore.

In deciding whether to grant Lee's request to throw out the counterclaim, the Ontario Superior Court of Justice was not required to determine whether Nair's allegations were true; rather, the Court simply had to satisfy itself that Nair had a reasonable cause of action. Therefore, Nair was required to demonstrate that the two elements of the tort of abuse of process had been set out in his statement of claim. They are: (1) that Lee was using the court process for an improper purpose; and (2) that Lee had made an overt threat, separate from the proceedings themselves, in furtherance of his improper purpose.

With respect to the first part of the test, Nair claimed that Lee did not really care what the readers of the Globe and Mail thought of him. Rather, the real purpose of the lawsuit was to silence, not only Nair, but all of Lee's critics and opposition in Singapore, a country in which freedom of political expression is not as valued as it is in Canada. In this regard, Nair alleged, Lee's action was part of a pattern of using the libel process to silence his critics and opposition and was "a mere stalking horse intended to further foster and continue a climate of fear and intimidation".

On the second part of the test, Nair claimed that Lee's lawsuit was just the latest in a series of acts and threats designed to intimidate his critics. In this regard, Nair alleged that when he spoke out politically against the Lee government in the late 1980's, Lee attempted to silence him by tabling a white paper in Singapore's parliament which included extracts of a confidential nature from Nair's personal medical records and correspondence. Nair claimed that Lee also arranged to have his pension withheld. Nair eventually left Singapore and came to Canada, where he did not speak out again until interviewed by the Globe and Mail. He claimed that Lee's latest libel action, brought in the country in which he sought freedom from political threats and overt legal actions, was intended to be a threat which was on-going and pervasive.

The Ontario Superior Court of Justice refused to throw out Nair's counterclaim, holding that he had met both parts of the test necessary to plead the tort of abuse of process and had therefore disclosed a reasonable cause of action.

Devan Nair was represented by Sean Dewart

Source: http://www.sgmlaw.com/PageFactory.aspx?PageID=252

maurizio13 SG

How come I didn't know about this case?

Was it reported by our local government controlled media?

Was it kept low profile?

Does anybody have any info on how the case turn out?

Who won?

Atobe SG

The following events occurred in 2002, and it appeared in small prints and buried amongst the news inside the pages of the local Straits Times - and mentioned in a small and short column.

Wait till end-2008, when the National Library will digitised the entire Straits Time's library of news prints that date back to its first edition, and we will have instantaneous search in PDF format.

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.

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Atobe SG

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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.).

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Atobe SG

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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.

Gazelle SG

Fingolfin_Noldor SG

Apparently, ever since Mat Toro left, the resident idiot decided to return with more infantile insults.

Fingolfin_Noldor SG

The tale of Devan Nair vs LKY would be an interesting read. It's a pity that most of the facts are still not know though.

But it is galling that LKY would dare to prosecute this case in a foreign court knowing full well it won't hold water whatsoever.

maurizio13 SG

I think we will only get to hear one side of the story (the LKY side), it would be most unfair to make judgement based on one side of the story.

Goes to show that our benevolent fascist civil suits against magazines and political opponents can only happen in Singapore. When his case is brought up in a democratically elected government with independent judiciary, he doesn't stand a chance.

It also calls to question about press manipulation, because Devan Nair was portrayed very badly in the media then. Which calls to question issues regarding other political opponents, whether they have been portrayed wrongly by the media.

Fingolfin_Noldor SG

Indeed. I recall the official line was that he was forced to step down because of poor conduct.

The interesting thing is, if I recall correctly, Wee Kim Wee also was asked to step down for the similar reasons.

I wonder if there is some unseen politics here that we don't know of.

maurizio13 SG

Perhaps there are, we will never know the internal politics that goes on in there.

After reading the case about Devan Nair, I think that perhaps injustices might have been done to CSJ.

There are so many negative portrayal of political opponents by the media, not sure if it's the order of the older Lee.

(human) SG

Much that passes as idealism is disguised hatred or disguised love of power. -Bertrand Russell

lotus999 SG

i don't think wee kim wee was asked to step down because of poor conduct otherwise he wouldn't be given such a grand funeral when he passed away some years back.

Fingolfin_Noldor SG

The Politics of the PAP is not altogether consistent. Even if there was something extremely bad, they wouldn't dig it up when the person is dead. They at least seem to know how not to be petty about it at that point. Even when Devan Nair died, none of the bullcrap they accused him of turned up in the ST or anything.

Besides, why give the rumour mongers an excuse to talk about something? Besides, slighting an ex-president will no doubt raise heckles in some quarters of the population.

walesa SG

For a more extensive read on the farce known as a judiciary in this barbaric regime, you ought to pick up some articles penned by Francis Seow which he has done since becoming a fellow at Harvard Law School. Although the lingo in those articles are fairly legalistic, it does provide a clear insight into the workings of a fascist Judiciary adopted by this regime...

The perplexing thing which just about confirms the fact that the despot is senile stems from his misguided stupidity to pursue a defamation lawsuit in a respectable Judiciary in the free world - and to add insult to injury, it's the taxpayers of this regime who bear the costs of such wanton profligacy. So much for a self-proclaimed first world regime. Laughing

maurizio13 SG

I think it's akin to using the hard earned resources of your shareholders to defend his OWN integrity in a democratic judicial system, where he has zero chance of winning.

I think he should stop engaging in civil lawsuits in other democratic judicial system, given his past records it's going to be a burden to us and just stick to suing the pants off political opponents in Singapore.

AndrewPKYap SG

same reasons why no one knew about what TT Durai... was doing... remember TT managed to sue and win defamation suits against him?