[COMMENT1] Court File No. 0103‑14569

IN THE COURT OF QUEEN'S BENCH OF ALBERTA

JUDICIAL DISTRICT OF EDMONTON

B E T W E E N:

FERREL CHRISTENSEN,

Plaintiff,

‑ and ‑

THE NATIONAL POST, NP HOLDINGS COMPANY, GLOBAL COMMUNICATIONS LIMITED and DONNA LAFRAMBOISE,

Defendants.

[By agreement with the defendants, the name of the Post employee here interviewed has been deleted.]

‑‑‑ This is the Examination for Discovery of [name deleted], herein, taken at the offices of Atchison & Denman Court Reporting Services Limited, 155 University Avenue, Suite 302, Toronto, Ontario, M5H 3B7, on Tuesday, the 22nd day of October, 2002.

APPEARANCES:

Bradley J. Willis For the Plaintiff

F.S. Kozak For the Defendants

TABLE OF CONTENTS

INDEX OF EXAMINATIONS:

[name deleted]; Sworn...................................... 3

EXAMINATION BY MR. WILLIS:............................ 3

INDEX OF UNDERTAKINGS

Undertakings are noted by U/T and are found on the following pages: 7, 14, 15, 17, 18, 20, 24, 28, 30, 34, 36‑39

INDEX OF UNDER ADVISEMENT QUESTIONS

Under advisement questions are noted by U/A and are found on the following pages: 26, 31, 33

‑‑‑ Upon Commencing at 12:04 p.m.

[name deleted]; Sworn.

MR. WILLIS: Mr. [deleted], you are produced today as an officer of defendants, the National Post Company, NP Holdings Company, and Global Communications Limited in Queen's Bench Action No. 010314569, and the answers you give will be binding on those defendants as provided by the Alberta rules of Court. Are those statements correct?

MR. KOZAK: Yes, we confirm that.

EXAMINATION BY MR. WILLIS:

1. Q. Mr. [deleted], what is your position with the defendants?

A. My title is [title deleted for reasons stated above] editor.

2. Q. How long have you held that position?

A. Since September of 2001.

3. Q. Did you have any personal involvement with the article which is the subject of this litigation?

A. No.

4. Q. Do you have any personal knowledge of the article which is the subject of this litigation or the process that resulted in its publication?

A. Because I attended and attend regular news meetings most days in the morning, I do remember Paul Waldie, the National editor, saying this article was scheduled.

5. Q. At the material time, that is to say, the times mentioned in the statement of claim, what was your position then?

A. Discovery page editor which more or less means science editor.

6. Q. And how long had you held that position?

A. Probably about, at that time, maybe about a year.

7. Q. And did you hold it continuously until September of 2001?

A. I was seconded to be acting book review editor into October 2001.

8. Q. And how ‑‑ just pause for a minute. I'm just curious. How is it that you're the person chosen to be the officer? How is it that you're the person best informed for the defendants?

A. I'm the person who is the liaison with our libel counsel.

9. Q. And that's part of your normal duties?

A. Yes, very much so.

10. Q. And who do you report to?

A. I probably have several bosses, probably most immediately to Douglas Kelly, executive editor, but I also deal directly with others on the mast.

11. Q. Has the organization chart of the National ‑‑ I'm going to refer ‑‑

A. I've never seen a chart.

12. Q. I'm going to refer to the defendants collectively as the National Post, and you'll understand that it refers to all three?

MR. KOZAK: Meaning the National Post Company, NP Holdings company, and Global Communications Limited?

MR. WILLIS: Is that satisfactory?

THE DEPONENT: Yes.

BY MR. WILLIS:

13. Q. In fact, there's one operation and then a corporate structure of the three companies, but there is only one operation of the newspaper, correct?

A. Yes.

14. Q. Albeit there's no organization chart. In terms of the organizational structure of the National Post insofar as it's relevant to these proceedings, has that changed since April of 2001? Let me ‑‑ you're having trouble with that. Let me help you out here. Donna Laframboise has been laid off from the National Post?

A. Yes.

15.

Q. I also ‑‑ I understand that her lay off had nothing whatsoever to do with these legal proceedings?

A. Yes.

16. Q. At the time that she wrote this article, she reported to [name deleted], correct?

A. [name and position at The Post here deleted for reasons explained elsewhere] came under his domain.

17. Q. And so in addition to [name deleted], were there other people to whom Ms. Laframboise was responsible?

A. At some point, as she told you in the discovery in Edmonton, she was a member of the editorial board. So that she would also be as such ‑‑ I suppose the coheads of that department were Jonathan Kay and Natasha Hassan, as they are to this day.

18. Q. But in terms of the relevant structure of authority for the article which is subject of these proceedings, do I understand correctly that it was [name deleted] in the first instance to whom she would report and from whom she would get this assignment? Or have I got that wrong?

A. I don't know.

19.

Q. Her position ‑‑ and let me ask ‑‑ let me just peel back. There's a general question that I forgot to ask, but it's an important one. Are you prepared to adopt the evidence of Donna Laframboise as some of the information of the National Post?

A. We neither adopt nor reject it.

20. Q. Do you concede ‑‑ do you have any information ‑‑ if you have any information contrary to anything to which Ms. Laframboise has testified, will you undertake to advise me through your solicitor?

U/T A. Yes.

21. Q. When you say you neither adopt nor reject, I take it, however, that you will concede that her testimony is some of the information of the National Post, although you of course are saying that you won't be bound by it?

A. Yes.

MR. WILLIS: Just so that we're crystal clear on this, you're not going object, subject to your right to call contrary information to my reading Ms. Laframboise's evidence in not only against her but as some of the information of the corporate defendants?

MR. KOZAK: Well, we reserve the right to object to that, given the fact that we're going to advise you of the fact that we may take a contrary view of some portions of the evidence.

MR. WILLIS: But the objections will be restricted to situations where there's a contrary view of portions of the evidence not to be admissibility of the readings prima facie as a whole?

MR. KOZAK: Yes, to the extent provided by case law that applies in Alberta, that will become part of some of the evidence of the National Post.

MR. WILLIS: Thank you. We're talking about the Sterns Catalytic case and the other cases that relate to this kind of evidence?

MR. KOZAK: That's correct.

BY MR. WILLIS:

22. Q. Now, just while we're here, you've been present throughout the testimony of Ms. Laframboise?

A. Yes.

23. Q. And without restricting any subsequent answer you may give based on the undertaking that you just made, is there any evidence that she has given with respect to which you are at present aware that the Post has contrary information?

A. No. [I believe this interview raises questions as to whether this individual, The Post's representative in the lawsuit, had read

the case documents, as I'm told such a person is legally required to do. If not, it would fit The Post's consistent pattern of uncaring and irresponsibility.] [Back]

24. Q. Let me get back to my original question. So at the time Ms. Laframboise wrote the article, who other than [name deleted] would have had the authority to review it before it was published?

A. Well, there would be a number of people potentially who could have. So I suppose anybody higher on the hierarchy other than [name deleted].

25. Q. You've heard Ms. Laframboise's testimony about the sort of rocky course of the article to publication. But in terms of the supervision that she got from people above her in the post‑hierarchy, was there anything unusual about that?

A. No.

26. Q. Has the formal or informal organizational structure of the National Post changed in any way, so if this article were written today, there would be a different process leading to publication?

MR. KOZAK: Off the record.

‑‑‑ Off‑the‑record discussion.

BY MR. WILLIS:

27. Q. Confirming our discussion off the record, conceding my question's a bit vague and hypothetical, how far can you help me out with the question of what relevant changes, if any, have there been in the management structure relating to publication and article like the one that's the subject of these proceedings?

A. There have not been enormous fundamental changes in the management style of the National Post.

28. Q. All right. Confirming our discussion off the record, I think you said that nobody has quite the job description now with the National Post that Donna Laframboise had?

A. Yeah. It's a point of content in a way. We might not be interested in the story just because we don't have her. [Back]

29. Q. Now, among the people who were involved in some way in the story, [name deleted] is he still with the National Post?

A. No.

30. Q. When did he leave?

A. I can't quite remember, but possibly six months ago.

31. Q. Was he too laid off?

A. No.

32. Q. Where did he go?

A. [description deleted as possibly identifying this individual].

33. Q. And I think there was a man named [name deleted]. Is he still with the National Post?

A. No.

34. Q. And where did he go?

A. [description deleted for reason above].

35. Q. When did he leave?

A. [date deleted].

36. Q. And [name deleted]. What was his position at the time?

A. [description deleted].

37. Q. And so was he a superior to [name deleted]?

A. He was the No. 3 editor, so yes.

38. Q. No. 1 being Kenneth Whyte, and No. 2 being...

A. [name deleted].

39. Q. And [name deleted] at that time, what was he?

A. His title was [description deleted].

40. Q. Is [name deleted] still with the Nation Post?

A. [answer deleted to avoid presenting too much identifying information].

41. Q. What does he do now?

A. To be honest, I'm not quite clear because [answer deleted to avoid presenting too much identifying information].

42. Q. Now, David Walmsley. What was his position at the time?

A. Political editor.

43. Q. Now, memo R00144 as part of No. 16. There's a memo from [name deleted] to Donna Laframboise that says, "I've sent the story to David Walmsley who is running the National desk on Good Friday." Who would normally run the National desk? [name deleted]?

A. Yes.

44. Q. But things were sufficiently informal that other people would jump in and take that desk?

A. They're all on the same desk, a central desk, and nobody is in six days a week.

45. Q. Physically, everyone is in one big bullpen area, sort of thing?

A. The hands‑on key editors are in a spine‑like desk that might have as many as a dozen people at it.

46. Q. And the other people, like Ms. Laframboise, they would be in the same area?

A. She would be quite far away.

47. Q. Is it sort of an open bullpen kind of design where everyone can see everyone, or are there separate enclosed offices?

A. It's a large newsroom. So large at the time that it might be difficult to see people partly because it's crescent shaped.

48. Q. But it's an open structure with ‑‑

A. Well, there are a few very senior people or special columnists that have enclosed offices.

49. Q. But you don't, for example?

A. No.

50. Q. And the No. 1, 2, 3, and 4 editors. Did they all have their own enclosed offices?

A. No.

51. Q. Even Mr. Whyte?

A. Whyte, yes, 1, 2, not 3.

52. Q. And things haven't really changed between March and April of 2001 and today in terms of the physical set up of the office?

A. No.

53. Q. Now, do you have any information that there were any ‑‑ what I don't see in the production are any interoffice memos or notes about this article between internal memoranda between persons other than ‑‑ pardon me, to which Ms. Laframboise wasn't party. For example, I don't see any memoranda from any of the people we've named to each other. Everything is always to Ms. Laframboise. I take it you've searched your records and determined whether, in fact, there are any and there aren't?

A. I haven't personally searched and people have left.

54. Q. Would you undertake to do so? Would you ask the gentleman we've mentioned, Messrs. Whyte, Gurdon, Zivitz, and if you can make an inquiry of Mr. Waldie since he's available in Toronto and Mr. Walmsley as to whether they have any memos of any kind that relate to this article other than the ones that have been produced?

U/T MR. KOZAK: We'll make those inquiries and advise you of what we're able to find out. [Next]

MR. WILLIS: Thank you.

BY MR. WILLIS:

55. Q. Now, I just wanted to ask you some general questions about the policy at the National Post, policies. With regard to the conduct of journalists, was there any employee handbook that Ms. Laframboise would have been subject to at the time?

A. Not about such matters.

56. Q. It would only relate to matters like parking?

A. Benefits.

57. Q. Would you, however, provide a copy of that employee handbook to my friend so that he can determine whether there's anything in it relevant to these proceedings, if there is any employee handbook of any kind?

MR. KOZAK: Is there one?

THE DEPONENT: I'm a little worried because it was seldom at the time. I'm not even sure that there is such an entity of Southam now.

MR. WILLIS: So if there are any kind of handbooks or that were ‑‑ to which employees would have regard at the time, if you could provide them to my friend so that he can review them and determine if there's anything relevant? Off the record.

‑‑‑ Off‑the‑record discussion.

MR. KOZAK: So you're talking about handbooks of a general nature that would have been in existence in March of 2001 that would have governed the conduct of Ms. Laframboise?

MR. WILLIS: Yes.

U/T MR. KOZAK: We'll make that inquiry.

BY MR. WILLIS:

58. Q. What about the conduct of Ms. Laframboise as a journalist? Was there any form of ‑‑ first of all, let me ask you formally. Were there ever any written memoranda during the period of her employment that would have come to her attention ‑‑ or pardon me ‑‑ setting out expected professional conduct by her as a journalist?

A. I believe not.

59. Q. Would there even be, for example, informal memoranda that would come around from time to time, sort of what we might call E and O, errors and omissions memoranda, pointing out things that people had done wrong that went on to avoid certain kind of conduct? In other words, memoranda that would be generally addressed to journalists including Ms. Laframboise?

A. More about English usage and things like that.

60. Q. But apart from English, that's the kind of thing I had in mind. People sending around memoranda saying watch out for this. Don't do that. Were there any such memoranda circulated during the course of Ms. Laframboise's employment?

A. No.

61. Q. Did the National Post have any policy regarding journalistic ethics?

A. Not a written codified policy, no.

62. Q. And did it have a policy other than a written codified policy?

A. There are general understandings of journalistic practices- not peculiar to the National Post.

63. Q. And in terms of the understanding that employees of the National Post would be expected to have, where could they find such general understandings? Could they find them reduced to written form anywhere?

A. No.

64. Q. For example, your own background, sir, I wonder by the way if you'd undertake to provide me through your solicitor your resume, CV, just to save time?

MR. KOZAK: Do you have one?

U/T THE DEPONENT: It's not up to date, but I think I have one somewhere.

‑‑‑ Off‑the‑record discussion.

BY MR. WILLIS:

65. Q. Did you go to journalism school?

A. No.

66. Q. Did you ever take courses in ethics for journalists?

A. No.

67. Q. Did the Post provide any informal training or seminars for journalists about professional standards or ethics?

A. The closest was one seminar more about legal issues.

68. Q. All right.

A. For editors rather than reporters.

69. Q. Would that seminar have occurred before the article that's the subject of this litigation was produced?

A. Yes.

70. Q. Would you undertake to provide whatever information you have about that seminar to my friend so that he may determine whether there may be anything relevant about it to these proceedings?

U/T THE DEPONENT: Yes.

MR. KOZAK: Do you have that information?

THE DEPONENT: I was present at it.

‑‑‑ Off‑the‑record discussion.

MR. WILLIS: If there's any record of results or the contents of that seminar, any notes or any materials in connection with it, if you could search, advise my friend, and he can check into it.

MR. KOZAK: All right. And if that is available, Mr. [deleted] will produce it to our office, and we will review it to determine whether or not it's producible.

BY MR. WILLIS:

71. Q. Was any informal direction about either professional or ethical matters given by any of the management of the National Post, promulgated by anybody at the National Post during the course of Ms. Laframboise's employment?

A. Well, reporters deal with their editors.

72. Q. I mean, for example, was there anything that came down from on high by Conrad Black about how reporters ought to conduct themselves in any respect?

A. No.[The Post's official representative is speaking here.]

73. Q. Any kind of even an essay or any materials ever circulated to people about either professional or ethical issues?

A. Not that I recall. --->

74. Q. Now, did you go to journalism school yourself?

A. No.

75. Q. Are you familiar with the curriculum in journalism schools?

A. No.

76. Q. Are you familiar with various codes of journalistic ethics that have been promulgated here and there? [Both above and below these highlighted words is much discussion of this subject.]

A. No.

77. Q. Are those codes of ethics available anywhere in the National Post in its library or anything?

A. I don't know. [Back]

78. Q. Does the National Post have a library of books about journalism?

A. It has a library.

79. Q. Would you check in that library, and see if at the time Ms. Laframboise was employed there are any materials available to her relating to journalistic ethics or professional conduct?

U/T A. Yes.

80. Q. Thank you. How big a library are we talking about, by the way?

A. I'm sorry. I'm not good at describing, estimating physical space.

81. Q. Is it in a room?

A. Not in a separate room. Much of it came from the Financial Post previously. So it is the accumulation of all the years of the Financial Post plus the National Post. It's not small. It has a full‑time staff of three.

82. Q. All right.

‑‑‑ Off‑the‑record discussion.

MR. WILLIS: Confirming our discussion off the record, if you do permit me to look at the library, I will undertake to advise you if there's anything in it that I think might possibly be relevant to these proceedings.

BY MR. WILLIS:

83. Q. Now, during the course of the examination of Ms. Laframboise, you've heard in her testimony that she did not keep copies of the e‑mails that she sent to people that related to the article which is subject of these proceedings, correct?

A. Right.

84. Q. As far as you knew, was that standard operating procedure at the time of the National Post?

A. Different reporters have different habits, but it's certainly not unusual at all.

85. Q. In terms of what you would expect from a reporter of Ms. Laframboise's seniority at the National Post, would you not have expected that she would keep copies of e‑mails that she would send out relevant to an article that she was preparing?

A. We expect reporters to have notes or tapes or both of interviews.

86. Q. So for example, and you expect those to be ‑‑

A. Things that there is some prospect of quoting.

87. Q. And so for example, we have Louise Malenfant, the star of the show, whose picture is prominently in the article. Wouldn't you have expected Ms. Laframboise ‑‑ when I say you generally speaking the National Post ‑‑ to have kept all the tapes of her interviews with Ms. Malenfant?

A. I think you're mistaking in characterizing her conversations with Malenfant's interviews. One has ‑‑ I myself do some reporting, and I often have background discussions with people in which I do not take notes.

88. Q. But if there were interviews, you wouldn't expect ‑‑ if there was anything that you thought important enough to tape, you wouldn't expect it to be taped over? You'd expect those tapes to be kept for a reasonable period of time?

A. Yes.

89. Q. And if a reporter has ‑‑ of Ms. Laframboise's experience ‑‑ had any kind of a relevant conversation with somebody about an article, would you expect if there was no tape that she would keep notes?

A. Not any relevant conversation, as I've said.

90. Q. Did the Post have any suggestions or expectation of how reporters would organize or maintain their files?

A. No.

91. Q. Now ‑‑

A. Beyond keeping, as I say, notes or tapes of interviews.

92. Q. You heard Ms. Laframboise suggest that she felt that her file keeping or her record keeping was probably more meticulous than that of the average comparable reporter? You heard that.

A. Yes.

93. Q. Does that correspond to your experience based on your knowledge?

A. I can't speak to that.

94. Q. You've been in this game for a number of years?

A. Well, variations of it for 16, I suppose.

95. Q. Do you feel able based on your observation to compare Ms. Laframboise's record keeping and file keeping with what you would informally understand is a normal, journalistic standard?

A. Yes.

96. Q. And in making such a comparison, would you agree with her that her record keeping and file organization exceed the norm?

A. I'm not an expert. I can only speak to my own record keeping and what occasional occurs when problems come up, and I would say it was normal.

97. Q. All right. Now, some specific questions. If I can refer you to document K00112.

‑‑‑ Off‑the‑record discussion.

BY MR. WILLIS:

98. Q. So if I can refer you to K00112, a letter to Mr. Wagner, dated May 17th, 2001, the second page, first paragraph, third sentence reads as follows: "Finally, the newspaper published a clear and unequivocal statement to the effect that your client does not condone or advocate inter‑generational sex ‑‑ it had received this information from a reliable source and felt that it was a fundamentally relevant fact to put in front of the readers of the article." Who was this reliable source, and when was the information received?

A. I don't know.

99. Q. Would you undertake to check your records and advise me through your solicitor?

A. Yes.

U/T MR. KOZAK: Yes, well subject to any reservations that we've raised about confidential source material.

MR. WILLIS: Okay. And if there's a claim of privilege based on confidentiality or something else, you'll advise me of it so we can include it in our application if necessary?

MR. KOZAK: Yes.

BY MR. WILLIS:

100. Q. Now, of course one thing that at some point happened in this lawsuit is that, as you know, professor ‑‑ or that somebody complained to the Ontario Press Council about this article. And they then learned that the National Post is not a member of the Ontario Press Council. First of all, it's correct, isn't it, that the National Post was not a member of the Ontario Press Council at the time that this article was published?

A. Right.

101. Q. Has it subsequently become one?

A. I believe not.

102. Q. Has it ever been invited to join the Ontario Press Council?

A. I don't know.

103. Q. Do you know why it isn't a member of the Ontario Press Council?

A. No.

104. Q. Would you undertake to make inquiries and to ascertain first of all whether the National Post was ever a member of the Ontario Press Council, and if it quit why. And secondly, whether it's ever been invited to become a member of the Ontario Press Council, and if it declined the invitation, why. And thirdly, whether it has ever applied to become a member of the Ontario Press council and if not, why not?

A. I can make an inquiry as to whether of counsel regards this as relevant.

MR. WILLIS: Well, as I understand, the Ontario Press Council is some kind of an ethical watchdog. And the question of whether or not it is central in this lawsuit is the question of the ethics of the journalist who was involved. And in terms of the damages as between the Post and the journalist, the direction or lack thereof that the journalist received from the Post, I mean, it may be relevant to the Court in damages.

MR. KOZAK: I think we can make inquiries as to whether or not the National Post has ever been a member of the Press Council.

MR. WILLIS: If you can consider those three things that I've asked because for example if there's been any correspondence between ‑‑ if you can produce any relevant correspondence if there has been a refusal on the part of the National Post to join or if it was kicked out, or if in some way, there's some explanation, some material that gives some explanation as to why the National Post is not a member of that council.

U/A MR. KOZAK: We'll take the request for that undertaking under advisement. I don't see how it's relevant, but I might be convinced of it when I look back at it.

MR. WILLIS: Well, I've tried to put part of the relevance on the record, but in any event, I look forward to that.

BY MR. WILLIS:

105. Q. Are there any professional organizations of which the National Post was a member at the time? Any organizations or newspapers or journalists?

A. I don't know.

106. Q. Could you undertake to make inquiries and let me know through your solicitor?

MR. KOZAK: The question is a very broad one, Mr. Willis. Obviously, it may be a part of ‑‑ or it may be a participant in some news gathering network that has nothing to do with the relevant issues in this lawsuit.

MR. WILLIS: I'm looking for organizations which might have some policies, aspirations, standards relating to the conduct of journalists either ethical and professional.

THE DEPONENT: The National Post does participate in the National newspaper awards. What the organizational structure of the newspaper awards is ‑‑ or for that matter the National Magazines Awards. I suppose I do know about the National Magazine Awards but not in connection with the National Post. That's the kind of thing that certainly does exist.

MR. WILLIS: All right.

THE DEPONENT: And there is involvement with and participation but not necessarily membership.

MR. WILLIS: Well, for example, if the National Post awards are given for ethics or awards are given for journalistic competence, if the National Post provides delegates to give such an award or makes recommendations about them, these are the kinds of organizations that I'm looking for. And if you'd be kind enough to make inquiries and to advise my friend if there are such and to determine if there would be some relevance to these proceedings.

MR. KOZAK: All right. Just so that we're clear, this undertaking relates to membership by the National Post in an organization that might govern ethical conduct of Donna Laframboise at the time of this article.

MR. WILLIS: Or where the participation of the National Post might give us some clue as to what its policies, formal or informal are. In other words, this witness has told us that everything is pretty informal and that there's no written statement of any policies as to ethical conduct or professional conduct. But perhaps the Court will be able to be assisted by representations that the National Post may have made to other organizations of which it is a part or by its participation in blue ribbon panels giving ethical awards or something of that kind.

U/T MR. KOZAK: We can make those inquiries.

THE DEPONENT: Yes.

BY MR. WILLIS:

1070 Q. Did the National Post at that time have any formal or informal review of journalistic ethics or anything of that kind?

A. No.

1080 Q. Did it do a performance review, for example, in terms of promotion or in deciding who's to be laid off and who is to be kept? Did it ever do a review of Ms. Laframboise's performance and evaluation?

MR. KOZAK: I think that if there is something that relates to the publication of this article, you may be entitled to ask about that on a general basis. I'm going to instruct the witness not to respond to that.

MR. WILLIS: Well, I'm entitled to know whether her performance would be evaluated on a regular basis. That's obvious. That's all I'm asking at the moment.

MR. KOZAK: All right.

MR. WILLIS: That's my question. I haven't gone any father than that at that point.

MR. KOZAK: Okay. You're entitled to ask that.

BY MR. WILLIS:

1090 Q. Was Ms. Laframboise's performance evaluated regularly?

A. There was a policy for performance reviews.

1100 Q. Is that policy a written policy? Or was it at the time, I should say?

A. I'm not aware of a written policy.

1110 Q. Would you undertake to search your records and if there was any policy or any written memorandum reflecting the policy of the performance reviews, provide it to my friend, so he may determine whether it's relevant?

A. At one time, certainly, section editors received instructions to conduct a performance review because I had one measly reporter reporting to me, and I got instructions, but I didn't see a policy.

1120 Q. But you'll make inquiries, and obviously, you weren't personally involved in it?

U/T A. No. Maybe there is some policy on high that you hadn't seen?

A. Yes.

1130 Q. And do you know whether or not Ms. Laframboise performance, in fact, was reviewed and if so when?

A. I don't know.

1140 Q. Would you undertake to check your records and in particular to check Ms. Laframboise's personnel file, determine whether there were performance reviews, provide them to my friend. So he can determine whether there was anything that might be relevant in them.

U/A MR. KOZAK: We'll take that under advisement?

MR. WILLIS: Similarly, when the decision was made to lay off Ms. Laframboise, was there any evaluation made of her performance?

MR. KOZAK: I think the witness has already said that the decision to lay off Ms. Laframboise had nothing to do with this article.

MR. WILLIS: Right, but I'm looking for something a little different. It may be that there was an evaluation made when the decision was made to lay her off, and even though the decision had nothing to do with this article, there may have been some reference to her performance in this article.

U/A MR. KOZAK: You can ask for the undertaking. I'll take it under advisement.

MR. WILLIS: Yes, and you'll be able to determine whether there's anything relevant in such a written evaluation. So may I have that undertaking, subject to my friend taking it under advisement?

MR. KOZAK: Yes.

MR. WILLIS: You'll search your records and determine whether there were any written evaluations or other written materials?

THE DEPONENT: I believe there was no fresh performance review leading up to the layoffs of 130 people.

BY MR. WILLIS:

1150 Q. Was Ms. Laframboise reviewed regularly, and if so, do you know when these reviews were done?

A. Well, I don't think that there was performance reviews right at the beginning of the National Post. So this policy might have only really been in effect for one year before the layoffs.

1160 Q. Would it have been [name deleted] who would have been responsible for doing that review?

A. I don't know for the reasons that I said earlier.

1170 Q. If it turns out that things were done orally or something, would you undertake to advise me at least through your solicitor when these reviews were done and who did them even if they were informal oral reviews, maybe I can save some more time. And if it turns out that the reviews were oral, if you would make inquiry of whoever did the review as to their best recollection of what was in the reviews. Then provide that to my friend, so he can determine whether there's anything relevant?

THE DEPONENT: Yes, I can make inquiries.

U/A MR. KOZAK: I'll take that under advisement.

MR. WILLIS: Well, I'd be obliged you let me know as soon as possible so that our application can be as efficient as possible.

MR. KOZAK: Bearing in mind that Mr. [deleted] will have to make an inquiry of people who ‑‑ at least one of whom ‑‑ lives in another country. And therefore, it may take some reasonable period of time to get an answer.

MR. WILLIS: Well, thanks to the magic of e‑mail, I hope it won't take too long.

BY MR. WILLIS:

1180 Q. Now, let me ask you specifically about the counterclaim in these proceedings. The corporate defendants have claimed in paragraph 36 that they have suffered public humiliation, distress, and serious harm to their personal and professional reputations. Other than what Ms. Laframboise has testified, do you have any information that the corporate plaintiffs or any of their employees have suffered public humiliation as a result of the conduct complained of in the counterclaim?

A. No.

1190 Q. Again, other than the testimony of Ms. Laframboise, do you have any information that the corporate defendants or any of their employees have suffered any distress as result of the conduct claimed of in the counterclaim?

A. No specific information.

1200 Q. And similarly, with regard to serious harm to their personal and professional reputations, do you have any information that the corporate defendants or any employees other than have testified by Ms. Laframboise have incurred that harm as a result of the conduct of Mr. Christensen complained of in the counterclaim?

A. No, no specific information.

1210 Q. Should you, before trial, acquire any such specific information, would you undertake to provide it to me through your solicitor?

U/T A. Yes.

1220 Q. Now, when you say you have no specific information, do you have any information, any general information, about humiliation, distress, or harm?

A. Well, I've reviewed the file, and I've seen allegations, and there is beyond in our own production there is evidence, I believe, as I remember, of Dr. Christensen having circulated.

[The Post's representative is referring here to my press release and other letters to dissuade The Post from destroying my reputation. At discovery he treated me with disdain. And he reported his reaction to those efforts of mine, not as including any desire to investigate the reporter's behavior, but...]--->

1230 Q. Well, we know what he did. But we're talking now about the results of what he did. So for example, do you have any sort of information however vague that anybody or including the corporate persons who are the defendants has been humiliated, distressed, or has suffered serious harm to their personal and professional reputations? [...as being "annoyed". I suggest this speaks volumes about his journalism ethics.]

A. No, other than my own reading of it. I was annoyed. I think other people would be. [Back]

1240 Q. All right. So but for example, you don't have any information that anyone has said I feel humiliated. I feel distressed?

A. No.

1250 Q. I feel I've suffered harm?

A. No.

1260 Q. Thank you. This corporate structure of the corporate defendants changed since April 17, 2001?

A. I believe it has. I'm not sure about that.

1270 Q. Would you make inquiries and advise me through your solicitor as to whether the corporate structure has changed since April 17, 2001, and if so, how? I'm just concerned as to whether the style of cause needs in some way to be amended as a result of the various acquisitions in sales that may have occurred?

A. Right.

‑‑‑ Off‑the‑record discussion.

MR. WILLIS: I've asked for a number of undertakings from Ms. Laframboise, for example, about whether or not Louise Malenfant was ever paid anything by the National Post. I wonder if we can just agree informally to the extent those undertakings require inquiries of the National Post or information from the National Post that the Post will undertake to provide that information without the necessity of a formal request from Ms. Laframboise.

MR. KOZAK: Well, as I envision it, Ms. Laframboise has undertaken to get that information from the National Post.

MR. WILLIS: So I'm simply asking for just a blanket undertaking, so I don't have to go over them. Take for example the undertaking to determine whether Louise Malenfant has ever been paid any money by the National Post. I'm just seeking the undertaking that the National Post, without a specific request from Ms. Laframboise for the basis of the transcripts available to counsel acting for both, will undertake to provide that information.

U/T MR. KOZAK: Yes, of course.

MR. WILLIS: Thank you.

MR. KOZAK: If it's available.

BY MR. WILLIS:

1280 Q. Now, in the correspondence that I see about the publication of this article, it is suggested in one place that it was ready to be published by, I think, I'm not sure when, but there's a point at which it was ready to be published. And after that, there was just sort of in a cue waiting for a space. You've read that correspondence?

A. Yes.

1290 Q. I don't need to direct your attention to it. Were there any changes in the article after the point when it's been represented that it was ready to go to the ‑‑ to be published? In other words, I'm not talking about the changes that were made for legal purposes but just for changes that were made after the article had been approved and, as you put it, lawyered?

A. Not that I know of.

1300 Q. I'd like you to inquire because we are going to have an application about this because we don't have the success of drafts of the article. But if there were changes made after the final lawyering and for reasons other than legal reasons, I would ask you to undertake to let me know what those changes were.

U/T A. Okay.

1310 Q. Now, there's also a reference somewhere to the possibility that the article could have been published earlier if it was cut down to a thousand words. Did anyone ever edit it and cut it down to a thousand words? Is there anything like that existing?

A. I've seen no trace of such a thing. It strikes me as unlikely.

1320 Q. Would you just check, and if there was any attempt to edit the article, again subject to claims of privilege, I'd ask you to undertake to produce it.

U/T A. Yes.

‑‑‑ Off‑the‑record discussion.

BY MR. WILLIS:

1330 Q. As far you're aware, apart from changes in the article made by or made on the basis of legal advice, did any of the persons who reviewed Ms. Laframboise's draft articles make any suggestions for changes?

A. I don't know.

1340 Q. Could you undertake, subject to any claims of privilege, to make inquiries and provide those through your solicitor?

U/T A. Sounds fine.

1350 Q. And finally, the article prominently features a picture of Louise Malenfant. And you've heard Ms. Laframboise testify that she doesn't know how it came about that Ms. Malenfant's picture is featured in the article. Could you make inquiries and advise me through your solicitor how that was chosen?

U/T MR. KOZAK: We can make those inquiries. Although, I would be shocked if somebody will be able to answer that, but nevertheless we'll be able to make the inquiries?

THE DEPONENT: I shouldn't do this, but I know that her description of it is just exactly what would take place. I worked myself on a previous article at one point involving Malenfant. We had a picture of Malenfant. We would have loved to put another picture of Malenfant instead of putting the same old ‑‑ but we had this the photo. The photo desk would have loved to put a picture of [Tim] Adams, not to run this dreary picture again.

BY MR. WILLIS:

1360 Q. Can you make those inquiries? There would be someone on the photo desk who would be able to confirm that?

A. They might remember who I'm talking about, yes.

1370 Q. I think Ms. Laframboise said there might have been a memo saying let's try to get a picture of Christensen or Adams or somebody. I understand what you're saying, but I just want to dot that particular I.

U/T A. Okay.

1380 Q. If you can make that undertaking. Thank you. In the undertakings of Ms. Laframboise, she talks about the back‑up. My question is the e‑mails that she sent out in March and April of 2001. Is there any way to retrieve the e‑mails that Ms. Laframboise sent out from the National Post?

A. I've already made those inquiries in the answers to the undertaking as to what e‑mails of hers survived. That would all be in the same e‑mail box. That answer has been made.

1390 Q. Well, you know, I mean my information comes from the 18 year‑old computer fiend in my household. But my understanding is that there may be ways to recover such e‑mails even if no record exists.

A. I advance to the two heads of the IT department the existence of, Mr. Willis, your 18 year‑old whom you referred to in Edmonton in February. They were of the view that your son is under a misapprehension in a large network like this based on a server rather than on individual disk drives.

1400 Q. If through an expert I can come up with any proposal to attempt to recover those e‑mails, will you undertake to cooperate with such an expert?

A. We will listen to your proposal.

1410 Q. And rather than asking you technical questions about how your system exactly works, what I would propose to do if my client authorizes in retaining the expert is with your permission have that expert just speak directly to your people to find out how your system works. Could we operate informally that way? Or would you rather have a letter from me?

MR. KOZAK: Well, I'm going to suggest that however we do it ‑‑ and I think the initial contact should be your office to our office ‑‑ you're not foreclosed by ending your discovery of this witness from pursuing that as an option. In other words, I'm not going to take the position that if you retain an expert, and he convinces us that there may be some way at your expense to retrieve this, I'm not going to take the position that you've ended your option in that regard by ending your discovery today.

BY MR. WILLIS:

1420 Q. Just again following up on that. Ms. Laframboise said that people were always being encouraged to dump their sent portion of their e‑mail that says sent. Is that true?

A. I think it was an understatement because for example on Friday I myself got three urgent messages from the system telling me that my whole mailbox was too full and that I might not be able to receive e‑mail if I did not dispose of things. There are both encouragements and orders. [But note: Laframboise turned over scores of received

emails, with no signs that any of them had gone missing.]

1430 Q. So during this period, the system was somewhat overloaded?

A. It's always under pressure.

1440 Q. So people are encouraged to get rid of stuff?

A. Yes.

1450 Q. Are people encouraged to keep hard copies of all that they send, or is there any policy, or can they just rely on their own judgement?

A. Most people ‑‑ usually, it's an exceptional situation to be conducting an interview by e‑mail, and so no, not really.

MR. WILLIS: Thank you, Mr. [deleted]. Subject to any questions which may arise out of your undertakings or Ms. Laframboise's undertakings or any documents which may be produced or questions answered as a result of the subsequent applications, those are my questions. Thank you.

‑‑‑ Whereupon proceedings adjourned at 1:22 p.m.

I HEREBY CERTIFY THE FOREGOING

to be a true and accurate

transcription of my shorthand notes

to the best of my skill and ability.

Kim Barker, CSR(A)

Computer-Aided Transcription