The Fifth Estate’s Troubling Litigation History

July 26, 2023
Mark kelley talking with his hands in the air

This is a follow-up to my earlier posts about the Fifth Estate’s dubious coverage of WE Charity, a “kick ‘em when they’re down” exercise that happened after most of Canada’s mainstream media gleefully dismembered Canada’s most successful children’s charity. Journalists from the Globe and Mail, the Toronto Star and PostMedia made common cause with Charlie Angus, the regrettable soon-to-be-former MP from Timmins, and the appalling Trump-lite Pierre Poilievre. They both used McCarthyite tactics to bully WE’s founders and staff in a “scandal” that turned out to be nothing.

Still, the stench stuck to WE Charity, killing WE Days, its school volunteer programs, its retail sales of crafts and ethically-sourced food from developing countries. No one seemed interested in the thousands of people, mostly poor and Black, who lost out on educational and development opportunities outside Canada, or the tens of thousands of young people in the developed world who became active in social justice causes because of the WE movement.

Why do I keep beating this horse? Because I believe the Kielburger brothers were brutally mistreated in ways that will deter anyone who takes up their torch in Canada.

This story sums up the rot in Canadian politics and journalism. We have become a society divided into two parts. On one side are people who want to participate, give back, and do good. These days, they feel there are few ways to do that, and, now that WE has left Canada. there’s one less option for good works. On the other side, we have people who are only out for themselves. Many journalists, especially Jesse Brown, and politicians like Poilievre and Angus, fall into the latter.

CBC’s Fifth Estate show and the lawsuit generated by it will, I hope, be the turning point in the WE non-scandal. Read WE’s pleadings.  They’re scathing. When I have the Fifth Estate’s Statement of Defence, I will post it, too.

There’s no shame in a journalist being sued. Any journalist worth a damn will probably have a Statement of Claim served on them at some point. The shame is in losing a case where a defamed person shows the media outlet and journalists had sustained, reckless disregard for the facts.

Most – one estimate says 95% — of claims against media never see the inside of a courtroom because they are dropped or settled. And, because there are no searchable databases of ongoing court cases (outside of Quebec), there’s no way of knowing how many lawsuits are pending against media outlets like the Fifth Estate. Still, Friends of WE Charity have found two apparently serious lawsuits against the Fifth Estate in the past year and a half. How many more are there?

Fifth Estate host Mark Kelley (pictured), along with Harvey Cashore, is being sued by a pathologist for what he says is a hatchet job on his professional work.
Fifth Estate host Mark Kelley (pictured), along with Harvey Cashore, is being sued by a pathologist for what he says is a hatchet job on his professional work.

A pathologist who used to work in Calgary is suing the Fifth Estate, producer Harvey Cashore and host Mark Kelley for what he says is a hatchet job on his professional work. He claims Harvey Cashore and Mark Kelley made gross errors in the Fifth Estate’s two-part series, relying on three doctors who the Fifth Estate held out as some kind of panel. The three doctors’ findings were later discounted.

Friends of WE also found a Statement of Claim filed by the respected accounting firm KPMG, which also claims it was defamed by substandard Fifth Estate reporting. Naming the ubiquitous Harvey Cashore and Mark Kelley, KPMG claims the Fifth Estate falsely stated that KPMG was involved in assisting people laundering money through the Isle of Man tax haven.

The Fifth Estate’s allegation was very serious. KPMG says it was based on an old email from a mid-level employee of a third party that KPMG has never done business with or interacted with, and that all the Fifth Estate’s allegations are false. The lawsuit was filed in August, 2021.

And the Fifth Estate is still embroiled in a lawsuit with Merchant Law, a law firm that won massive settlements in the Residential Schools case.

The Fifth Estate is also being sued by a Manitoba church, claiming the CBC program portrays “INC (the church) and its affiliates as having had involvement in inappropriate activities, including intimidation, kidnapping, murder, and financial wrongdoing. These allegations are malicious and have impugned the integrity, reputation and character of INC and its affiliates.”

A pathologist claims Harvey Cashore (pictured) and Mark Kelley made gross errors in their Fifth Estate’s two-part series, relying on three doctors whose findings were later discounted.

Maybe the Fifth Estate will win those lawsuits. A lot can happen between the filing of a Statement of Claim and a judicial resolution of a case. But the Fifth Estate has already lost some major lawsuits, and the CBC does not have libel insurance.

For example, in 2022 the Fifth Estate was saddled with a $950,000 judgment and more than $800,000 in legal costs for defaming Dr. Frans Leenen. As Playback magazine noted, “He  (Dr. Lennen) gave a fairly lengthy interview, but he was horrified when editing spun his interview, showing him as a staunch defender of the drug and as a bumbling fool. What Dr. Leenen did not know was the producer’s angle of building a ‘good guys/bad guys’ story. Dr. Leenen had been cast as enemy number one.”

Leenan offered to settle the case in 1998 for $35,000, but CBC, which has extremely deep pockets that lead all the way to the federal government’s bank account, chose to fight the case all the way through the courts.

At the same time, the Fifth Estate was fighting another lawsuit from a doctor defamed in that program. This case went all the way to the Ontario Court of Appeal, which awarded $350,000 in general and aggravated damages, as well as costs. (The trial court had set general damages at $200,000, and the Court of Appeal, which heard the case because CBC chose to appeal, added another $150,000, plus court costs.)

That was on top of a $3 million award to yet another doctor in 2001. One of the judges who heard the case called the Fifth Estate’s journalists “parasitic sensationalists”.

But sometimes the Fifth Estate wins one.  Two and a half years ago, alleged serial rapist, human trafficker and sexual harasser Peter Nygard, former owner of a multi-million dollar clothing empire, dropped a ten-year-old lawsuit against the Fifth Estate. That must have been comforting to CBC executives.