Maxime Bernier ordered to pay $132,000 in legal costs after failed defamation case over Project Cactus

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The Ontario Superior Court of Justice has ordered Maxime Bernier to pay $132,000 in legal costs after his defamation lawsuit against political columnist and consultant Warren Kinsella was dismissed.

The People’s Party of Canada Leader had sued Mr. Kinsella for his role in a secret campaign called Project Cactus, which aimed to discredit Mr. Bernier and his party as racist in early 2019 ahead of the federal election that fall.

Justice Calum MacLeod dismissed the lawsuit in a Nov. 10, 2021, ruling, siding with Mr. Kinsella’s legal defence that the case should be rejected based on Ontario’s “anti-SLAPP” legislation, which aims to discourage the use of strategic lawsuits to prevent individuals or organizations from speaking out on matters of public interest. Essentially, the judge determined that Mr. Bernier failed to prove that his defamation concerns outweighed the importance of protecting free speech.

In a ruling Monday, Justice MacLeod ruled that Mr. Bernier should pay for almost all of Mr. Kinsella’s legal costs and pointed to the rationale behind Ontario’s anti-SLAPP law.

“The legislation seeks to ensure that unmeritorious litigation cannot be used as a weapon to stifle constitutionally protected speech,” the ruling states.

“In the case at bar, not only did Mr. Bernier seek to punish Mr. Kinsella for attacking him and the People’s Party of Canada, but he also pursued the litigation for an extraneous purpose.”

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Mr. Kinsella is a former Liberal Party strategist who leads Daisy Group, a Toronto-based consulting firm. The Globe and Mail first reported during the 2019 election campaign that the Conservative Party had hired him and his firm earlier that year as part of a “seek and destroy” effort to discredit Mr. Bernier and his new party.

Social-media posts related to the Project Cactus campaign were generally aimed at portraying Mr. Bernier and the People’s Party as racist. The Conservative Party has never confirmed nor denied that it paid Mr. Kinsella for the work. The Globe reported in June, 2021, that an invoice from Daisy Strategy Group Ltd. was billed and addressed to “John Walsh Conservative Party of Canada” at the same Ottawa address as the party’s headquarters. The invoice for $20,000 was referenced as a “Project Cactus” monthly retainer for May, 2019.

In Monday’s ruling, Justice MacLeod said Mr. Bernier’s sworn affidavit made significant allegations against the Conservative Party of Canada and sought to characterize Mr. Kinsella’s activities “as part of a scheme of dirty tricks promoted by the party against him and the party that he now leads.”

“Although Mr. Bernier contends that his main purpose in pursuing the action was to clear his name from the ‘taint of racism,’ there is no doubt that one of his primary objectives was to obtain details through the discovery process to demonstrate that the Conservative Party of Canada was behind Mr. Kinsella’s communications, and it was the party that funded ‘Project Cactus,’” the ruling states.

Justice MacLeod suggested that he considered not awarding legal costs to Mr. Kinsella based on his reaction to the court’s November ruling.

“I considered whether the intemperate school yard language used by Mr. Kinsella in his online communication or his subsequent online gloating over the court decision might justify depriving him of costs,” the judge wrote. “Tempting as it might be to discourage juvenile name calling as a form of political commentary, this would amount to twisting the law to protect only speech that the presiding judge approves of.”

Mr. Bernier’s lawyer, André Marin, said his client is disappointed by Monday’s ruling but not surprised, given that the wording of the law strongly suggests that all legal costs must be paid in such a scenario when a lawsuit is dismissed under anti-SLAPP provisions.

Mr. Marin said Mr. Bernier has been clear since the beginning that his legal costs would not be paid by the People’s Party.

In a statement issued by Daisy Group, Mr. Kinsella’s lawyer, David Shiller, said he was delighted by Monday’s decision.

“As with our victory in November, this decision makes clear that politicians and powerful interests need to think twice before they try to use libel laws to silence legitimate critics,” he said.

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