Reaction of
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
to
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
On balance, it appears likely that Mr. Rotberg's intended retort
was directed at
those described as Islamists who come here from the
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
Apparently the author showed an “us and them” outlook on the
conflict in the
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
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
“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
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
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,
