Reaction of Mantua Books to Small Claims Court Decision in

Mantua Books v.  Indigo Books & Music Inc. et al.

 

September 6, 2008

 

 

We are pleased that after four years we finally had our day in Court.

 

We achieved a partial victory at best.

 

While the Court had some adverse things to say about Indigo, and we achieved payment of the amount owing to us, which Indigo had withheld for a year, incredibly blaming “computer problems” for non-payment, the Court rejected the most important matter of Indigo’s liability in negligence for actions and non-actions of their employees.

 

In its Judgment, the Court gave little or no weight to evidence that one of Chapter/Indigo’s employees was watching the event and appeared bemused as hecklers took over the lecture, announcing they would not let the guest author speak.   The Court interpreted the affidavit that we filed as part of the legal settlement with that employee much differently than we interpreted it.   As part of the settlement with that employee we are not allowed to comment on that part of the case.

 

Unfortunately, the Court absolved Indigo from anything that happened before the Manager came back to the lecture after hearing the commotion.  The Court said that “what occurred was a rapid escalation, a sudden conflagration which culminated within a matter of minutes”.    It appears that we did not make our case that Indigo was negligent in allowing the take-over of an author lecture by extremists who announced, in the presence of at least one Indigo employee, that they would not allow the author to talk.   We did not make our case that this take-over of the lecture happened before the “rapid escalation”, which, in the view of the Court, Indigo managers handled properly in their conduct to the guest author.

 

We are saddened that the Court did not place any emphasis on the presence of Indigo employees during the take-over of the lecture but instead commented that “to expect Indigo's personnel to be able to instantly divine within the briefest of

moments who, as between Mr. Rotberg and the hecklers, was more to blame,

morally to blame, or otherwise, would be to impose an unrealistic burden and one

which would itself tend to compromise the security interest in simple separation

of the proverbial combatants.”

 

The result was that Indigo was held not to have breached a common law duty to protect its guest author from verbal assault and racist taunts. 

 

We are saddened that a reputable author is lumped together with totalitarian stormtroopers against freedom of expression and are both called “proverbial combatants.”

 

 

While the Court found that the guest author “presented as an intelligent man with a passion for civic and community involvement”, with “many commendable civic and community activities”, the Court found that the guest author, in yelling out that he would not be called a “fucking Jew” was as blameworthy as those who called him a “fucking Jew.” Here are the words of the Court:

 

“With respect, what he repeated was not just the mere profanity of the "f' word.

Understood in context, what he repeated was a racist expression of disrespect,

intolerance and hatred. While it is right to call attention to such matters, doing so

in the manner Mr. Rotberg did was inappropriate”.

 

So, did the Court find that Mr. Rotberg said something else objectionable?   In the words of the Court:

 

“As to whether Mr. Rotberg did or did not make a racist comment of his own

generalizing about Muslims or Arabs being terrorists, I find that the evidence is

overwhelming that he did retort to the second heckler with an offensive remark.

It appears clear and I find as a fact that Mr. Rotberg said something in response to

the second heckler's racist epithet that was unpleasant to listening ears and which

was noted by most such listeners. Reports of the precise content of his statement

varied.”

 

Note the following:

 

“It seems to me that in the context of how the exchange had developed, Mr.

Rotberg had launched into references to people from the Middle East who come

to Canada with views that are different from those which prevail here. His

comments, like his presentation, were focused on those described as Islamists.

The entire tenor of the exchange, from the perspective of both the hecklers and

Mr. Rotberg, and therefore of the others in attendance who heard the exchange,

was an "us and them" outlook on conflict in the Middle East.

On balance, it appears likely that Mr. Rotberg's intended retort was directed at

those described as Islamists who come here from the Middle East. I need not

attempt to define the precise words used. I accept that the version of those words

recorded by Ms. Al-Halimi and other witnesses may have been inaccurate in

minor respects, but it appears probable and I find as a fact that they captured the

flavour of Mr. Rotberg's utterance with reasonable accuracy. His retort was to

describe a group of people as terrorists and his intent was that the two hecklers

with whom he had directly engaged in this angry exchange be included within his

generalization.”     

 

Mantua Books launched this lawsuit only in part because Indigo did not pay for the books it ordered for a period of one year.   Mantua Books found it a serious breach of fairness for Indigo to put out a press release stating that Mr. Rotberg had made “racist comments” and not divulge what words were being alleged as the basis for this allegation.  It took us years before Indigo released its witness statements, which alleged that the author said that “all MiddleEasterners are terrorists”.   Unfortunately, after a four year wait, and a 31 page Court Judgment, we feel that we are no closer to understanding why the witness statements alleging that Mr. Rotberg said “All MiddleEasterners are Terrorists” would be seen as substantiating a racist remark.  Mantua Books still believes that such a statement, if made, would not be a racist statement but would be just a silly and nonsensical statement, because Jews, Christians, blacks and whites all inhabit the Middle East as well as Muslims, and Muslims themselves reflect a diversity of practice and belief.

 

Apparently the author showed an “us and them” outlook on the conflict in the Middle East, and to the Court this shows racism.    Apparently no political objection can be made to “Islamists”, being the extremist fundamentalists who use the religion of Islam as a political and terrorist weapon to impose their beliefs and lifestyles on other peoples.   

 

Two professors in the audience swore affidavits and one gave evidence at the trial that Mr. Rotberg said nothing “racist”.    Here is how the Court responded:

 

“To Dr. Maoz and Mrs. Stoutenburg, the gist of Mr. Rotberg's utterance might not

be a racist comment because it was not directed at all Arabs or al1 Muslims.

Others who heard it did find it to be racist in nature.”

 

We are saddened that “racism” is not an objective term in Canada but it appears that if anyone believes something is “racist”, it is now “racist”, notwithstanding that professors think it is not.

 

The Court ruled that Indigo incurred no legal liability after one of its stores ordered 30 copies of the book, and Indigo reacted to a Mantua advertisement for the books by removing all the books off the shelves as follows:

 

“I would add that for Indigo to remove this book from its shelves and to explicitly

state the reason for such removal to be the existence of this litigation, and to tie

the removal to potential settlement discussions is surprising to say the least. But

the issue for the court is not whether Indigo's business dealings with Mantua have

been fair in some general sense, but whether Indigo is legally liable for the

advertising expenseas alleged.  I can find no legal basis for liability in negligence

as asserted.”

 

Accordingly, while Mantua was unsuccessful in that part of the case dealing with Indigo’s press release and could not collect on its advertising expenses wasted when Indigo pulled the books, the Court did penalize Indigo with respect to its conduct by not awarding it any legal costs as it requested.   The Court ruled:

 

“The plaintiff has presented an important and apparently novel case to this court,

albeit one which has been unsuccessful. The general rule is that costs follow the

event and that would result in the plaintiff being liable for costs. In this case, I

find that no costs should be awarded.

Inexplicably, the plaintiff s claim for payment of its invoice was not paid until

about a year after delivery of the shipment of books in question and after this

action was commenced. I found the defendant's protestations that this tardiness

was somehow due to a computer difficulty to be singularly uncompelling. In any

event, for costs purposes, the plaintiff was successful on that part of its claim.

In addition, I find that the plaintiff’s claim, based as it is on the fundamental

human interests at play in this case, possesses a public interest aspect that affects

the usual disposition of costs.

The court is dismayed that lndigo pulled Mantua's book from its Bay & Bloor

shelves, albeit temporarily, as a negotiation ploy or for some other reasons arising

from this lawsuit. That conduct …ought not to have been necessary and it appears to reflect a heavy-handed approach on Indigo's part. The 1aw of costs should discourage such conduct.”

 

And so, Mantua had some measure of success, but we are unhappy about what this case has to say about the law of negligence as it relates to corporate actions to protect or not protect freedom of expression.   The Court has spoken and we respect its decision. However, we suggest that all Canadians have lost a little of our precious freedoms.

The full decision can be read at:  http://cherniaklawyer.com/decision.pdf