Jury finds Ferguson not liable in defamation trial

Former Saint John city councillor John Ferguson embraced friends and family in the lobby of a Saint John courthouse Tuesday night, celebrating a complete victory in his five-year legal battle with the city's pension board.

"I'm pleased with the decision," an emotional Ferguson told reporters. 

"Very pleased with the decision." 

A seven-person jury deliberated for eight hours following 12 weeks of courtroom testimony and arguments.

The jury concluded Ferguson was well within his rights to criticize management of the city's deficit-plagued pension fund while he was a councillor.

The Saint John Pension Board sued Ferguson for multiple statements he made at five city council meetings and in a newspaper opinion piece over an 18-month period beginning in April of 2005, claiming serious and malicious damage to its reputation.

At the time, the city's $400-million pension fund was running a deficit of about $45 million. The shortfall has since ballooned to more than $190 million and caused significant funding cuts to city services.

But in its verdict the jury found the newspaper story and two of the meetings contained no defamatory statements at all. 

At two of the remaining three council meetings, the jury said Ferguson's comments were defamatory but not directed at the pension board.

'It's a good day for elected officials that their privilege of speaking their mind on public issues is protected by the citizens of the community of which they work.' — Rod Gillis, Ferguson's lawyer

And while at the fifth meeting, the jury said there were defamatory statements made by Ferguson about the pension board, they found the comments were not motivated by malice and consequently were protected by his privileges as an elected representative.

The jury went further and said if asked to value the damage to the pension board's reputation from that one meeting it would have awarded only a token $100.

Rod Gillis, Ferguson's lawyer, said the jury's decision was a victory for local democracy.

"It's a good day for elected officials that their privilege of speaking their mind on public issues is protected by the citizens of the community of which they work," said Gillis.

"It's a good verdict."

Gillis said he will be seeking at least $1 million in costs from the pension board toward Ferguson's legal bills.

He estimated total costs to both sides to fight the five-year long action to be in excess of $5 million.   "A waste of money," said Gillis.

Jury started deliberations on Tuesday

Justice William Grant concluded giving his instructions to the seven-person jury about 11:30 a.m. Tuesday.

"You are the sole deciders of the facts," he said.

Grant told the jury to ignore all media coverage or talk on the street about the trial.

The jurors are the only people who have heard all of the testimony and seen all of the documents, he said.

"It's your duty to make your own assessment of the case."

Grant said the jury must decide if Ferguson’s statements were about the pension board, and whether they were defamatory.

If the answer to either one is no, then the case ends in Ferguson’s favour, he said.

Qualified privilege

If the answer is yes, then the issue becomes "qualified privilege."

Ferguson, as an elected representative, has an ancient right to speak freely on public issues, even if what he says is inadvertently untrue, said Grant.

If, however, Ferguson’s motives for any untrue statements were malicious, or if he exceeded other limits on the protection offered by qualified privilege, then privilege no longer applies, he said.

Ferguson also has a defence of "fair comment," which applies to every citizen commenting on public issues, said Grant. But the defence does not apply to false statements, he said.

Grant stressed that the jury need not decide "beyond a reasonable doubt," but only on the basis of "more likely or not."

And they are not deciding whether Ferguson is guilty or not guilty, but rather liable or not liable, he said.

If Ferguson is found liable, the jury must then decide on damages, which could range from one cent to an unlimited amount, Grant said.