Judge dismisses bid to toss search order tied to ongoing AHS suit (original) (raw)
A Court of King’s Bench justice has rejected a bid from two podcasters to set aside a court order that was used to search their devices last year. Sandy Edmonstone, a former Alberta Health Services board member, has alleged a campaign of harassment and intimidation from podcasters David Wallace and James DiFiore.
Justice Michael Lema also heard arguments Monday tied to alleged intimidation and harassment campaign
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Athana Mentzelopoulos, former CEO of Alberta Health Services, is suing the provincial government and AHS for wrongful dismissal. She is seen outside the law courts in Edmonton on April 29. (Lisa Johnson/The Canadian Press)
A Court of King’s Bench justice has rejected a bid from two podcasters to set aside a court order that was used to search their devices last year.
Sandy Edmonstone, a former Alberta Health Services board member, has alleged a campaign of harassment and intimidation from podcasters David Wallace and James DiFiore.
Edmonstone had been identified as a potential witness in the ongoing suit filed by Athana Mentzelopoulos, the former CEO of AHS, against AHS and the provincial government for wrongful dismissal.
Last year, Edmonstone obtained ex parte orders against the podcasters, including a restraining order. Ex parte orders are orders granted without the other party being notified beforehand.
He also obtained what’s known as an Anton Piller order, which permits a search without prior warning on a plaintiff’s or applicant’s behalf, when the judge concludes there is reason to seize evidence and prevent it from being destroyed.
Lawyers for Wallace and DiFiore had argued the orders should be tossed because, among other reasons, there wasn’t enough evidence to justify them. They also argued all evidence obtained via the Anton Piller order should be barred.
Justice Michael Lema disagreed, writing in a brief filed May 22 that Edmonstone had shown a compelling case of witness intimidation.
“These are not just ‘views’ — this is a campaign. And apparently a no-holds-barred one,” Lema wrote. “The likelihood that it is unconnected to dissuading Mr. Edmonstone from providing testimony in the noted litigation is minimal on the evidence here.”
Craig Alcock, a lawyer for the two podcasters, didn’t respond to a request for comment by publication time.
Mentzelopoulos seeking remedies
Mentzelopoulos has also alleged a campaign of harassment and intimidation by the two podcasters.
On Monday in an Edmonton court, a lawyer for Mentzelopoulos, Brett Code, argued the podcasters recorded more than 50 episodes that contained threats and “dehumanization.”
“[Mentzelopoulos] is standing strong — so far. But as she says in her affidavit in several places, she's thought about it. She's thought about quitting,” Code told the judge.
“She's afraid that she made a mistake and the intimidation has worked. And it has to be stopped. That is the highest public interest.”
Alcock, the lawyer for the podcasters, told the judge there had been an attempt to equate defamation and harassment with an intent to interfere with the administration of justice.
“There’s no direct evidence of that intention … it’s certainly not contemptuous to say mean things on a podcast,” Alcock said. “And there are other remedies to address that sort of behaviour. Again, we’re dealing with criminal contempt, which requires proof beyond a reasonable doubt.”
Code argued that Mentzelopoulos should be subject to her own remedies against the podcasters, including a citation in contempt, to issue a restraining order and to force a takedown of the content involved.
Mentzelopoulos is also seeking access to the materials already seized by the independent supervising solicitor during the execution of Edmonstone's Anton Piller order, and an order disclosing the identities of those “who support [the podcasters] with information and with money.”
Lema reserved his decision.
ABOUT THE AUTHOR
Joel is a reporter/editor with CBC Calgary. In fall 2021, he spent time with CBC's bureau in Lethbridge. He was previously the editor of the Airdrie City View and Rocky View Weekly newspapers. He hails from Swift Current, Sask. Reach him by email at joel.dryden@cbc.ca