Canadaland with Hilary Young 15 August 2018
On July 11, comedian and former talk show host Mike Bullard delivered a trio of libel notices to journalists who wrote about the fallout from his criminal case the prior month.
Through his lawyer, Bullard served notices regarding two articles and three tweets he believes defamed him, naming both individual journalists and the parent companies of their respective publications: Toronto Star columnist Heather Mallick and Torstar Corporation; HuffPost Canada editor-in-chief Andree Lau and AOL Canada; and Chatelaine senior writer Sarah Boesveld and Rogers Media.
So far, only MRA (men’s rights activist) vlogger Diana Davison and Toronto Life newsletter Twelve Thirty Six have given the notices any coverage, but with rumours of Bullard being a victim of a supposed #MeToo witchhunt circulating in certain corners of the Canadian Twitterverse, CANADALAND has decided to take a closer look at the validity of Bullard’s claims and the likelihood his threats will result in the filing of any lawsuits. (In Ontario, a libel notice is the first step toward proceeding with a defamation suit against a media outlet, offering a publication a chance to retract and/or apologize for allegedly defamatory material.)
Bullard affirms that he does intend to sue.
“Mr. Bullard can confirm,” his lawyer Joshua Henderson tells CANADALAND, “that litigation will be commenced and served within the time periods stipulated by the Libel and Slander Act and the Limitations Act, as well as pursuant to the relevant Rules of Civil Procedure.”
“The main claims Bullard seems to be making are that these publishers got their facts wrong and that they didn’t fairly represent his side of the story,” says Hilary Young, a University of New Brunswick law professor who researches defamation, after perusing the three notices. (They’re appended at the end of this article.)
Bullard, who was first charged back in 2016 for criminal harassment of CityNews reporter and ex-girlfriend Cynthia Mulligan, pled guilty at the beginning of June to a lesser charge of making harassing telecommunications, as well as two counts of breaching court orders. He was given a conditional discharge and placed on probation for six months, being ordered to complete a Partner Assault Response program and have no further contact with Mulligan.
The original criminal harassment charge was dismissed because the judge determined that although the communications “could be seen as persistent, unwanted, bothersome,” he found that “there was nothing in any of the communications which gives rise to a reasonable inference that [Mulligan’s] safety was being threatened.” A charge of obstruction of justice was also dropped.
The notices demanded the respondents delete the allegedly defamatory posts, as well as issue Bullard-approved apologies.
In the case of Mallick and Torstar, only tweets were at issue, and they were deleted shortly after the notices were served. A week later, Boesveld’s Chatelaine story, a Q&A with Mulligan, disappeared from the website of the women’s magazine, only to be reposted — unaltered and in its entirety — days later. Lau’s HuffPost article has remained online and unchanged. None of the journalists or companies threatened with lawsuits have issued the demanded apologies.
“I understand what he’s trying to accomplish here, which is to get his side of the story out,” says Toronto media lawyer Iain MacKinnon, “but it’s an uphill battle when you’re talking about going after media outlets for reporting on criminal proceedings, because they don’t have an obligation to report every aspect of a criminal trial or guilty plea; they just have to do it in a fair and accurate way that doesn’t leave the reader with an unfair or inaccurate or misleading understanding of what occurred. They’re entitled to have some editorial discretion on what to focus on as part of a criminal trial.” (MacKinnon has represented both Torstar and Rogers in the past but not on matters related to defamation.)
None of the journalists or companies that were served libel notices, nor Mulligan, would comment for this story.
“The first rule is, you don’t have to sue everyone that hurt you, you can sue whomever you want to sue,” says Young, explaining why Bullard may have picked the targets he did. “One reason to sue big companies like Torstar and Chatelaine and Huffington Post is that they’ve got lots of money. And, also, they’ve got more eyeballs looking at their publications. If his goal truly is to get a retraction, then you can argue the ones you really want to sue are the ones that are disseminating these statements far and wide.”
According to a retelling of the events in the case by Justice Howard Borenstein, the rocky eight-month relationship between Bullard and Mulligan involved four breakups, finally ending in mid-April of 2016. Bullard kept contacting Mulligan afterwards, which she did not object to at first, until she finally told him in mid-June that she wanted to cease all communications. Bullard didn’t listen, and about a month later she complained to the police. The police warned Bullard several times to stop contacting Mulligan. Eventually, he was charged and ordered to have no contact with Mulligan, but he contacted her a couple of more times, failing to comply with the court’s order. Bullard, according to the judge’s recounting, “was fixated on Jamie Tumelty [Mulligan’s CityNews cameraman] as the source of stalking rumours,” which was one reason Bullard continued to reach out to Mulligan. He sent Tumelty an “aggressive” email, in which he questioned Tumelty’s manhood and dared him to meet with him in person, suggesting Tumelty bring Mulligan along because she brought out Bullard’s “gentle side.”
Bullard later messaged Mulligan to inform her he was nearly fired after Tumelty’s email was passed along from top brass at Rogers (which owns City) to top brass at Bell, which owns Newstalk 1010, Bullard’s employer at the time. Mulligan also said in her statement that Bullard made a series of calls by payphone, in which she alleged he spat and horked at her over the phone. Video surveillance, discussed in the court proceedings, showed a man fitting the description of Bullard walking towards a payphone with his cell phone in hand at the time Mulligan’s phone was called by it. Ultimately, the judge, as part of a plea deal, redacted the latter claim of Bullard horking and spitting from the version of her victim impact statement that Mulligan read in court.
That redaction, along with others concerning Mulligan saying she was afraid due to Bullard’s erratic behaviour, was a major point of contention in the notices served on Lau and Mallick, because they linked to an original, unredacted version of Mulligan’s victim impact statement or quoted her making the same claims. (The full statement had been posted to Facebook by Avery Haines, Mulligan’s friend and former CityNews colleague.)
“To say that you can only speak publicly about facts that have been proven beyond a reasonable doubt in a court of law would be an outrageous violation of free speech,” says Young. “That is not the law of Canada and never has been.”
The notice addressed to Mallick and Torstar identifies three now-deleted tweets from Mallick that described Bullard as a “stalker.” Bullard argues the term is defamatory because the criminal harassment charge was dismissed and that his “communications were benign in nature and did not concern [Mulligan’s] fear for safety.”
“Mallick’s tweets may be more problematic because she actually refers to him as a stalker, and he certainly wasn’t convicted of stalking — the so-called stalking offence of criminal harassment,” says MacKinnon. “She would likely defend that on the basis that she didn’t mean stalking in the criminal sense,” but as her own characterization of his behaviour.
MacKinnon says it’s also quite possible that Torstar would not be liable for Mallick’s tweets, depending on whether or not its insurance policy covers its journalists’ tweeting. For Bullard to get any substantial amount in damages, he would have to show that Mallick’s tweets reached a wide audience of tens of thousands to hundreds of thousands of people.
“I always find it a little unsettling when a male trier of facts questions the veracity of a female complainant’s fears and concerns,” says lawyer Gillian Hnatiw, who specializes in issues of sexual assault and harassment, about the judge’s conclusion that Mulligan’s safety was not threatened. “Women’s concerns about their personal safety have long been trivialized as them overreacting or being irrational or hysterical. Here we have a 60-year-old man who’s been warned by the police three times to cease his behaviour and yet he persists. That’s irrational behaviour. Her perception of that escalating threat isn’t irrational.”
In his summary of the preliminary inquiry, the judge said Mulligan testified that Bullard “never assaulted, threatened, or raised a hand to her” but was “angry after the breakup.”
The notice addressed to Chatelaine’s Boesveld and Rogers Media lays out several problems Bullard had with her article, which was first posted a week after Bullard’s sentencing. Despite Boesveld naming the charges to which Bullard had pled guilty, he thought it was misleading that she didn’t explicitly state that the more severe charges had been dropped. Bullard also took exception to what he thought was a lack of balance in the piece, including Boesveld not reaching out to him for comment and giving Mulligan an opportunity to repeat her claims of fearing Bullard.
“Normally, the victim impact statement is supposed to influence sentencing and therefore you can’t consider anything in that statement for the purpose of sentencing that aren’t proven in criminal court beyond reasonable doubt,” says Young. “Whereas the victim speaking out to the press or someone else repeating her words, talking about how she felt, how she was affected, doesn’t have those same limitations that the judge needs to put on a victim impact statement that is going to influence sentencing.”
“You certainly are obligated [to reach out for comment] if you want to rely on the responsible-communication defence, which is a type of privilege defence,” says MacKinnon. (Back in 2009, a precedent-setting Supreme Court case found that journalists can be protected against libel claims — and even allowed to get some facts wrong — as long as their conduct demonstrates they put in their best effort to report accurately and fairly on a matter in the public interest. Part of that involves giving the subject of reporting an opportunity to share their side of the story.)
The notice of libel served to Boesveld also contends that she maliciously misled readers by quoting Mulligan saying she had to move out of her home, something Bullard disputes ever happened, and that Boesveld used innuendo by referencing Mulligan’s home security system, which, according to the notice, was for “unrelated security concerns [Mulligan] alleged were related to her reporting on political matters, as well as to the general nature of her employment, and her high profile status.”
Mulligan, in her interview with Boesveld, expressed disappointment that Bullard would not take responsibility for his actions. “I realized the one thing that I needed for resolution for myself, I will never get — that’s him just saying, ‘I’m sorry.’ I will never get that because [in my opinion], I don’t think he will admit even to himself that he did these things.”
MacKinnon, reiterating what two media litigation lawyers told Jesse Brown on a CANADALAND podcast episode earlier this year, says defamation matters rarely make it to trial and are expensive for the plaintiff.
“You could easily spend $100,000 on a libel trial on your own legal fees, and if you win, and you get $25,000, and you may [also] get half of your costs, maybe you get $50,000 or maybe 60, so at the end of the day … you’re still in the hole. It’s one of the reasons why defamation actions rarely get to trial,” says MacKinnon.
Bullard would also face the prospect of paying the full legal costs of the respondents if they were successful in applying Ontario’s relatively new anti-SLAPP (strategic lawsuit against public participation) legislation.
“It would be interesting to see if this results in a statement of claim, whether this would be a candidate [for anti-SLAPP legislation],” says Young. “There’s clearly action in relation to expression. It would require Mike Bullard showing he has a pretty strong case.”