Sunday, March 29, 2009


I have been a bit miffed with the Vancouver Sun for their oversight in not running either an obituary or a memorial piece on the March 6 death of Vancouver choreographer Lola Maclaughlin. You can imagine my anger on seeing a full page obituary on the Sun lawyer and media law expert Barry Gibson in the Saturday Sun. Why would we care?

I was wrong. I noticed that the obituary writer was David Baines (left). I then read and was fascinated since many of the people mentioned in the piece crossed my path, too. The one page obituary is a fascinating history of important events in Vancouver’s past. Barry Gibson as described by Baines was a gem. We have lost an important personality who in many ways, by defending the Vancouver Sun (and other papers and magazines) from libel law suits and to gain information blocked by judges, has helped us in knowing the truth on events that have shaped our city. This obituary deserves wider dissemination. Read it here. (this link is now nonexistent but obituary will be found below).



After reading this fine obituary which mentioned that Barry Gibson inherited the beat from that other expert libel lawyer, Peter Butler I remembered a story that I heard from both sides (writers Lyndon Grove and Ben Metcalfe) that involved libel, the media and Peter Butler.

In the early 70s the previous incarnation to Malcolm Parry's Vancouver Magazine was Vancouver Life which was published by Dick MacLean. I met Dick MacLean and his son while renting cars for Tilden Rent-A-Car on Alberni Street because his son washed cars for us. By then Dick Maclean was publishing something called Dick Maclean's Guide which listed events and restaurants in our city. But Vancouver Life was not a bad city magazine. A couple of writers I subsequently worked for, Lyndon Grove and Ray Torresan worked for Dick Maclean's Vancouver Life. Lyndon Grove (who was also a most competent radio announcer with a voice just like Walter Cronkite's) was assigned to write a feature story on Vancouver critics. Grove wrote the piece and submitted it to MacLean. Between submission and the magazine going to press some changes and additions were made to Grove's article without Grove knowing about it. The article asserted that CBC theatre critic Ben Metcalfe, top, right, had the habit of reviewing plays that he had not personally attended. The magazine went to press and the next day Dick MacLean was served a scary document signed by one called Peter Butler. Few knew then or now that Butler was Metcalfe's brother-in-law.

Ben Metcalf died in 2003. Yesterday I called his widow, Dorothy for some sort of corroboration of the story. Grove had told me that he had not written the offending sentence and that his editor had an ax to grind with Metcalfe. Dorothy Metcalfe told me on the phone, "Did you call me to rile me up, Alex?" The writer should have demanded a retraction by the magazine (I do not know if a retraction was made). Writers have to defend their honour and sense of ethics. As she told me I thought of one occasion (and there were others) when an editor of Western Living trashed a story I had written in its entirety and published something he/she wrote but still kept my name. I attempted to defend my honour by calling the editor and saying, "Thank you so very much. You made me sound like Shakespeare." The answer to my cynical remark was a pleasant, "You are welcome." I was unable to make Dorothy Metcalfe understand that loud complaining can blackball a freelance writer and photographer so that work will be impossible to obtain.

Dorothy Metcalfe told me that the direct result of Butler's libel document was, "They settled at the steps of the law courts."

I worked with Ben Metcalf on many stories for what became the next incarnation of Vancouver Life. Vancouver Magazine was published by Ron Stern and edited by Malcolm Parry.

Ben Metcalfe told me many stories. One of them happened when he was a reporter for the Province which at the time was published by Thomson and competed with the Vancouver Sun which was part of the Southam empire. It seems that a group of Mafioso that Metcalf wrote about kidnapped him and kept him for several weeks. I have forgotten how Metcalf escaped his predicament. In another story he told me, "There was this short funny girl who came to pick up my copy at my desk at the paper. Her name was Pat Carney."

Many years later Malcolm Parry assigned writer Mark Budgen to write a profile on MP Pat Carney. In a show of ethics that would have brought a smile on Dorothy Metcalfe's face, Budgen told Parry that he (Budgen) did not agree with the policies of Carney and of her party and that he was not accepting the assignment. Parry then assigned the story to Metcalfe's partner in Greenpeace, Robert Hunter and I took the picture.



Another player in my libel memories was Allan Fotheringham, left, a man I photographed many times. It happened in 1986. I remember that it all happened in an Air Canada jet and that Fotheringham was sitting behind two lawyers and overheard their conversation. He lost the much publicized libel suit. In a 1984 Macleans column he'd stated that the two Vancouver lawyers, both associates of Liberal leader John Turner, were "cementing their connections through the tennis club circuits and the wife-swapping brigades". Despite two printed apologies, the court awarded the lawyers $10,000 each in damages. One of my favourite moments with Dr Foth, as Fotherigham was affectionately called, happened in the 1986 Socred Convention in Whistler that was ultimately won by Bill Vander Zalm. It was nine in the morning and I spied Fotheringham enter with a large brown bag under his arm. I followed him up some stairs. He sat down at his cubicle and pulled a case of beer. He took out a can and opened it. As he began to sip it I took my photo. Alas the colour transparency is not currently in my Fotheringham file!

The last time I photographed him was for a profile in Toronto Life. I was dispatched to some nearby island (Bowen, I believe) and he kindly posed with a martini and his perfectly nude mistress behind him.

For some reasons that I will not go into here I can point out that Fotheringham and Metcalfe did not like each other. Sometime in the early 80s, in his Georgia Straight column, Metcalfe hinted that Fotheringham was having a homosexual affair with the scion of the Southam publishing fortune, Harvey Southam who at the time had started a business magazine called Equity. Southam's office was not far from Malcolm Parry's as they shared a publisher, Ron Stern. Equity quickly became a much better business magazine than BC Business which to my mind featured questionable edtorial content.

One day, a few months after Metcalfe's offensive Straight column, I was returning with Harvey Southam in his white Mercedes from a trip to Whistler. We had gone there to interview (and for me to photograph) Peter Brown, below, who had recently purchased a restaurant there. We were munching chocolate covered expresson beans (not a good snack when navigating tight curves with only one working headlight.



We were chatting about magazines and I decided that I would give Southam a suggestion. "Harvey, I think you should hire some literary writers to write about manly things for your magazine. I would think that Ben Metcalfe would be a good beginning." With a kind smile on his face Southam looked at me and said, "I really admire Ben's writing and his literary capabilities. At this moment, I think I will pass on your suggestion." And that was it. Southam had class and seemed to harbour no animosity to the man. I was impressed. I learned to love the man and we had a fond business relationship.

After Harvey Southam left Equity (in the questionable hands of Mike Campbell, the Premier's brother) Equity ran several covers that would not have passed muster in our more careful times. I wonder what Barry Gibson would have said of a cover (the most infamous of them all) that featured Premier Mike Harcourt and his Finance Minister Glen Clark dressed (courtesy of Photoshop) in Nazi brown shirt uniforms? I know that Harvey Southam would have never allowed it.

Addendum by Lyndon Grove on October 18, 2009

The addendum was preceded by Grove's e-mail

The other evening I stumbled upon one of your blog entries recounting
the tale of the Ben Metcalfe libel suit. Ben is now, I believe, pleading
his case in a higher court. Entertaining story--at this remove--but not
entirely accurate. If you'd like what I believe (Rashomon like) to be
the true story, send an e-message.

Incidentally, I have recently, as a form of cerebral exercise, launched
a blog of my own: here

Trust this finds you enjoying a pot of tea and some mellow jazz.


Regarding the Metcalfe/Grove libel case:

The magazine involved was not Dick MacLean's Vancouver Guide (to which I had contributed the odd piece, and I remember with fondness MacLean's very attractive wife at the time, Carole Stewart, whom I had known at CHQM and later as public relations director at the Hyatt Regency--but that, of course, is not the story).

No, the magazine was Vancouver Life & About Town, launched into life by the flamboyant former Vancouver Sun publisher Don Cromie (who later purchased Palm Springs Life and set into motion Toronto Life). And, in this period, I served as editor (number two or three out of an ultimate six).

The article at the centre of the case was titled "Gentlemen, This Time the Heat's On You." It was intended to be a criticism of Vancouver's reigning critics in all areas of the arts. Through the efforts of Nelles Hamilton, then assistant editor, we were able to draw all of the critics into a studio and photograph them gathered around a stepladder, the significance of which is lost to memory.

To write the article, we commissioned the urbane Bill Phillips, and he turned in the story as required. And that's when the problems began. Some of us felt the piece needed more zip, and, as I had Bill's notes, I began adding material from them to the story, without consulting the writer. Serious error. Among his notes was a comment from Malcolm Black, then artistic director of the Playhouse Theatre Company, who was said to have said something like this: How can Vancouver Life criticize critics when its own critic reviews a play without even seeing it?

I thought this was a charming bit, and threw it into the mix. Ben Metcalfe was then Vancouver Life's theatre critic, and if I had been more than six years old, I would have called him, too. But I didn't. Instead, his lawyer called us. And he wasn't alone. We had a call as well from a lawyer representing Jonathan Baker, a sometime music critic for The Province, a flautist, and a civic official. Both Metcalfe and Baker sued. Metcalfe's case was helped by Black's denial of the words attributed to him. I cannot remember Baker's complaint. In any event, his suit was minor, and Cromie said, "Pay him his two dollars and fifty cents and let him go."

The Metcalfe suit reached the trial stage, and the magazine's eminent and enormously skillful lawyer George Murray, who, like a great football player, could work both offence and defence, was convinced Vancouver Life could win. Indeed, Metcalfe's lawyer, Peter Butler, had approached Murray with a settlement offer. But it happened that a pro-am golf tournament was about to take place at Point Grey, and Cromie had a chance to play on a foursome that could include Palmer or Nicklaus. "How long would I have to be here?" he asked. "A day or two," said Murray. "Well, I can't miss the game. Let's give him the money and go."

And that's what happened. Phillips and I went to Sir Walter Raleigh and had a lunch that lasted the entire afternoon, as Ruben Kopp continued to pour Slivovitz.

I must confess, that almost fifty years later, I have some nervousness in telling this story, worrying that some complainant and his lawyer may leap up out of the past and launch another libel suit. In which case, I say this: this is entirely fiction.

Lyndon Grove.

The above link to the Barry Gibson obituary by David Baines was disconnected at the Sun. Below you will find that original obituary:



The Quiet Gunslinger
Sat Mar 28 2009 / David Baines



On Tuesday, Vancouver libel lawyer Barry Gibson, who represented The Vancouver Sun for more than two decades -- as well as more than 100 other media outlets in the province -- collapsed in his office and died of a heart attack. He was just 60 years old.

The next day, I walked into the office at Farris Vaughan Wills & Murphy where he had worked for the past 34 years.

There I found anthropological evidence of the important things in his life: Legal files stacked asymmetrically on every possible perch. A putter and assorted golf balls strewn on the floor. Family photographs hanging on the wall, most interestingly a picture of two little boys dressed as bad-guy gunslingers.

That would be Barry and older brother Byran, trying their darndest, but failing utterly, to look dangerous.

It was a posture that never suited Barry, even in later years when he had reached a stature where he could, more convincingly, play the role of tough-guy lawyer. He was not in the fight game, he used to tell me -- he was in the business of fixing things.

There were, however, many times in his career where things couldn't be fixed, and fights couldn't be avoided. That's when the other Barry Gibson appeared, the one with the glint of steel at his side.

"He was the most dangerous adversary you could ever have," said Byran, also a lawyer and Queen's Counsel (at McCarthy Tetrault in Vancouver). "But he was not one to posture and yell. His delight would be turning his adversaries aside, deftly, economically and gracefully."

Dan Burnett, a senior lawyer at Owen Bird whose media clients have included Canwest Global, Corus Entertainment, and the Canadian Press, described Gibson as "the most senior expert in the province on libel issues."

"He could be an advocate with the very best in town, but his style was not abrasive. I think judges appreciated that, and lawyers on the other side appreciated being able to deal with the problem without having to huff and puff."

Burnett was struck by how self-effacing Gibson was: "I can recall being at a conference of lawyers, all trading war stories, and remember sitting beside Barry and it occurring to me that, of everybody at the table, he had been in the trenches and at trial more than any of them, and he was just sitting there, saying nothing."

One of the lawyers on "the other side" is Roger McConchie who, as counsel for many people who have felt aggrieved by Gibson's media clients, has frequently engaged in legal combat with him.

"I have the deepest respect for him," McConchie said in an interview this week. "Barry was involved in many of the significant decisions of our courts -- both at the trial and appellant levels -- concerning libel defences. With his passing, the libel bar has certainly suffered a significant loss. I deeply regret that I will not again have another opportunity to act either with or against him."

Howard Shapray, another lawyer who has frequently parried with Gibson over libel issues, described his sudden death as "a great tragedy."

"He was involved in an area of law that a lot of people dabble in, but he knew backwards and forwards. That made him a tremendous resource to his clients and a daunting adversary. He was certainly at the top of the class."

Editors appreciated his common-sense approach to what is otherwise an esoteric area of law. Vancouver Sun Editor-in-Chief Patricia Graham said Gibson was "intensely pragmatic, but he respected our role in a democratic society, and he understood the importance of fighting for principles in the kind of work we do."

Sun reporter Kim Bolan, who chronicles all things dangerous -- from Sikh extremists to gangster thugs -- said she viewed Gibson as both a mentor and protector.

"Barry made me a much better reporter. Instead of simply vetoing a story, he would explain what I had to do to get it in the paper. It made you work a lot harder to get what you needed, to bring a difficult but important story to the level where it could be published."

In addition to a highly analytical mind, Gibson had a deep appreciation for and understanding of the English language, the nuances and implications of words and phrases, and the context in which they were being used. He could identify the "sting" of a story, and determine whether the facts supported it. He knew how to round the sharp edges, to avoid unnecessary scraps.

As Charlie Smith, managing editor of the Georgia Straight, said in a blog this week, Gibson "taught me a great deal about how to do hard-hitting journalism without spending the rest of my life in court."

Bolan concurred, but she added that when the process server came calling, "Barry was the person you wanted in your corner."


PRECEDENT-SETTING CASES

Gibson's libel practice consisted of vetting and defending stories, making applications to courts and administrative bodies for access to hearings and documents, and fighting publication bans. The overall purpose is to make the principle of a democratic society and a free press more than a theoretical notion.

He argued many precedent-setting cases. In 1991, working on behalf of The Sun, he won the right to attend a Workers' Compensation Board hearing regarding a prison guard who alleged he was tormented by his supervisors for reporting the beating of an inmate by other guards and prisoners.

The following year, he won the right to attend a B.C. Review Board hearing regarding an inmate who was asking to be released from custody at a psychiatric facility. The inmate had been found not guilty by reason of insanity in the murder of a woman praying at a Baptist church.

In 1994, he petitioned B.C. Information and Privacy Commissioner David Flaherty to give the media access to citizen complaints against municipal police officers. He successfully argued that opening the police complaint process to public scrutiny was consistent with public accountability, as defined in the Freedom of Information Act.

In 1995, Gibson and Burnett persuaded B.C. Supreme Court Justice John Hall to release forensic auditor Ron Parks' report into the Nanaimo Commonwealth Holding Society "bingo-gate" scandal. The report had prompted an RCMP investigation, but charges had not been laid. Gibson argued the report should be made public because it could determine the fate of the NDP in the upcoming election. As events unfolded, the scandal prompted then-B.C. premier Michael Harcourt to resign, even though he had not been accused of any wrongdoing.

In 2002, Gibson was among a group of media lawyers who persuaded Vancouver Provincial Court Judge David Stone to permit the media to attend the preliminary hearing for serial killer Robert Pickton. (Reporters were still prohibited from publishing details, however.)

In 2006, he petitioned B.C. Supreme Court to give media access to testimony from one of the sex victims of former teacher Tom Ellison. Gibson noted that a publication ban on the identities of the victims was already in place, and he assured the judge that The Sun had no interest in "outing" any of the victims. "However, we have a long history of commitment to the important, fundamental principle of open courts."

The judge agreed.

A FAMILY OF LAWYERS

Law is in the Gibson family's DNA. In addition to Barry and Byran, brother Garth and sister Greer are lawyers. Gibson's wife Beth is a lawyer. His daughter Leslie graduated from UBC law school last year.

His mother, Eileen Gibson, now 86, says she isn't sure how that happened. "Byran [the eldest sibling] started it, I guess," she said.

The patriarch of the family, Thomas, now 89, was born in Ireland and emigrated to Ontario, settling in what is now Thunder Bay, where he met and married Eileen.

Barry, the second child, was born on March 12, 1949. He was a brilliant student who excelled in math and, as news clippings attest, ranked among the best in the province. He was also a keen athlete who played on the high school basketball team and inherited his father's passion for golf.

Upon graduation, he attended the University of Toronto where he earned an arts degree, and then Osgoode Hall where he obtained a law degree, then returned to Thunder Bay to article at a local law firm. Beth, meanwhile, also had aspirations to be a lawyer, but there was no law school in Thunder Bay, so they moved to Vancouver so she could attend UBC.

Barry quickly found work at Farris, generally viewed as one of the finest law firms in the city. "I met him when he was articling," recalls George Macintosh, who heads the firm's litigation department. "We all realized pretty quickly how bright he was, and what a laser sense of humour he had.

"From a very early stage, he was giving people in the firm counsel on all the legal issues they were grappling with. In the evenings and weekends, he spent literally thousands of hours advising me on cases, and rarely charged any money. He played down the fact he was doing an awful lot of work without directly benefitting. He was the most unselfish lawyer I've dealt with."

Beth and Barry had two children, Leslie, who was to start articling at her father's law firm in September, and Connor, who is attending Langara College's co-op commerce program and working toward a chartered accounting designation.

In the early years at work, Gibson gravitated toward a flamboyant and idiosyncratic lawyer named Peter Butler, who was the city's pre-eminent libel lawyer. Gibson assisted on four or five files, and by the early 1990s, he was doing most of The Sun's day-to-day legal work. By the time Butler died in 2002, Gibson was widely viewed as one of the foremost authorities on libel law, the go-to guy for most of the newspapers and magazines in the province.

He also did property assessment appeals, dealing mainly with large commercial and industrial properties, and employment law, including wrongful dismissal lawsuits. Most notably, in 1995, he won a $175,000 wrongful dismissal suit for former B.C. Transit chief Frank Dixon, plus $125,000 in aggravated and punitive damages. It was the largest award of punitive and aggravated damages ever handed down in a wrongful dismissal case.

ONE REPORTER, EIGHT LAWSUITS

Former Sun reporter Rick Ouston, now the paper's convergence editor, holds the record for simultaneous lawsuits. In 2000 and 2001, Gibson was juggling eight separate lawsuits that had been filed against the veteran journalist.

Gibson, in his usual low-key fashion, made seven of them go away. Just one went to trial, a suit brought by Nelson city councillor Doug Jay, who had been rejected as a political candidate by the provincial Liberals.

Ouston did some digging and was told by court staff that Jay had a criminal conviction for assaulting a teenage girl, but before he could obtain the court record, Jay asked for it to be sealed. Ouston went ahead with the story.

Jay's lawyer argued that because The Sun didn't have the record, the paper couldn't prove the story was true. During the discovery process, the conviction was unsealed, showing the story to be true in all substantive respects. The judge ruled in The Sun's favour and assessed costs against Jay.

That same year, Gibson defended Bolan, who was being sued by four Sikh fundamentalists who alleged she had linked them to the murder of Tara Singh Hayer, a Sikh moderate and the publisher of the Indo-Canadian Times. Gibson argued that, although Bolan's story noted that all four men were opponents of Hayer and were connected to the militant International Sikh Youth Federation, that did not amount to linking them to Hayer's death. The judge agreed, and once again ordered the plaintiffs to pay costs.

While Ouston has the record for concurrent lawsuits, this writer has the record for consecutive lawsuits -- 19 in all. Under Gibson's stewardship, 18 of them went away without going to trial, or paying any money in settlement, or issuing an apology. (The nineteenth suit is pending, the outcome to be determined.)

I recall one lawsuit filed by a man who walked into an examination for discovery like a hit man from the Sopranos. He thought I had unjustly damaged his reputation by calling him a drug dealer and loan shark. Gibson quickly established he had a reputation, although not the one he claimed:

Q: [You had] a 1987 assault charge in Vancouver?

A: Yes.

Q: [And] in 1988, a conviction in Vancouver?

A: May I say one thing? The assault was somebody at my penthouse in False Creek that I pushed, literally pushed. ... There are varying degrees of assault as I am sure you are well aware of."

Q: Your handshake this morning came close to an assault, sir.

Gibson, an avid fisherman, let a little line out:

Q: Was it the incident in False Creek that led to your appearance before Judge Johnson?

A: I don't know which judges appeared where. I mean, I haven't appeared in front of that many judges. I wouldn't know their names.

Q: That's Judge Johnson we are dealing with. He is the one who sends you to Oakalla for 21 days. That you would remember.

A: No, no. I drove my Porsche to Oakalla. He didn't send me there. I parked it out front.

Q: I see. He issued the invitation.

Now it was time to reel some line in:

Q: Didn't you get on TV and praise the guards?

A: Without my name being mentioned. Keep that in mind...

Q: Did any of your friends mention that they had seen you on TV?

A: No, no, no. I think there was a hockey game on that night actually, on a different station, so it didn't get much publicity at all.

The plaintiff's lawyer sat there stone-faced. He knew his case was over.

Ironically, the only lawsuit involving me that went to trial was one in which I was the plaintiff. Florida stock tout George Chelekis wrote a series of articles, published in a U.S. penny stock letter called Bull & Bear and disseminated through Market News Publishing in Vancouver, accusing me of trading against my column.

The allegation, if true, would have amounted to a serious employment breach, not to mention criminal misconduct. Sun Editor-in-Chief Graham said Gibson was acutely aware of the implications of a media outlet acting as a plaintiff in a libel action, the possibility of setting a precedent that would come back to haunt the newspaper. He also realized the allegation not only struck to the core of my integrity, but the newspaper as a whole.

He threw himself into the case, and succeeded beyond everybody's expectations. In April 1998, after a one-week trial, B.C. Supreme Court judge John Rowan ordered the defendants to pay $825,000 plus costs. At the time, it was the second-highest libel award in Canadian legal history, and more than six times the existing B.C. record. The award survived appeals to the B.C. Court of Appeal and the Supreme Court of Canada, cementing Gibson's place in the Canadian libel pantheon.

"There's nobody I had higher regard for in the defamation bar," said Bryan Baynham of Harper Grey in Vancouver, who represented Market News Publishing at trial. "As you can no doubt tell from my voice, I was shocked to hear about Barry's death. It went around the courthouse very quickly. Virtually every lawyer on the street is talking about it. It's a real loss."

The family is planning a private funeral service. An open memorial service will be held at 5 p.m. on Wednesday at the Law Courts Inn, 800 Smythe St.


David Baines

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