A B.C. blogger who called a former mining executive's $23-million donation to a Burnaby athletic development centre a "sham" has won a battle to have the man's defamation suit against her thrown out.
Scott Cousens, a director of the non-profit behind the former Fortius Sport & Health Centre at , launched a lawsuit against Vivian Krause in September 2021.
But Krause applied to have his suit dismissed under the province's anti-SLAPP legislation, laws designed to deter lawsuits launched to intimidate and silence people and organizations that speak out or take a position on an issue of public interest.
In a ruling Monday, B.C. Supreme Court Justice Kevin Loo sided with Krause and .
'Circular, self-cancelling transactions'
Krause, a blogger with a background in charity, including 10 years at UNICEF, published three letters she had written on her blog Fair Questions in January 2021.
In them, she contradicted – often held out to be the single biggest philanthropic donation in Canadian sport history.
"Financial statements and tax returns tell a different story," stated one of the letters quoted in the ruling. "According to these records, Fortius Sport & Health Centre began with a loan for $17.1 million, not a gift of $23 million. The total amount of gifts to Fortius from the private foundation of Scott Cousens, is $130,000, not $23 million."
Krause said, if her analysis was correct, Fortius had "engaged in a massive tax fraud scam whereby tax-receipted donations have been reported for donations that never existed," according to another letter.
She pointed to what she described as a "suspect" series of circular, self-cancelling transactions between a number of charities, including a number connected to .
Cousens said Krause's statements made it seem like "he created and donated to the Fortius Centre for his own private gain, not for any charitable purpose; and that he is a criminal and has engaged in criminal activity," according to the ruling.
But Loo concluded Krause's use of the phrase "tax fraud scam" was not meant to say Cousens was actually involved in criminal behaviour but rather that he was involved in a scheme to "dishonestly avoid tax in a more general sense."
'Valid reasons'
Cousens also accused Krause of misunderstanding his transactions.
He said the funding model for the Fortius Centre was something on which Cousens and the related entities took extensive accounting advice, according to the ruling.
He acknowledged he didn't donate the funds used to build Fortius directly to Fortius but chose to structure his contribution as loans from charities for "a variety of valid reasons," according to the ruling.
But Loo said that wasn't the point when it came to the defamation case.
"The point is that in public materials, Mr. Cousens stated that he made a $23-million donation 'to create' the Fortius Centre, and this statement appears to have been untrue based on the admitted facts," Loo said.
That would make it possible for Krause to argue her comments were justified, according to Loo.
Loo further concluded Krause could argue her use of the words "tax fraud scam" or "scheme" were "fair comment" on a matter of public interest.
"I accept that there are grounds to believe that, on the facts described, a person could honestly express the opinion that Mr. Cousens' $23 million donation was part of a broader 'tax fraud scam' or 'scheme,'" Loo said.
Loo's decision doesn't mean Krause has proven that her comments about Cousens were justified, but, rather, that Cousens has failed to prove her defence would have "no real prospect of success," according to the ruling.
The end of Fortius
Fortius its doors in 2020.
The City of Burnaby bought the complex for $25.8 million and has since reopened it as the Christine Sinclair Community Centre.
Cousens told the media in 2020 that the effects of the COVID-19 pandemic had created "insurmountable challenges" for Fortius.
"Since our inception, we have worked closely with the City of Burnaby to develop Fortius as a community asset," he said. "While we are deeply saddened to close our doors, I am proud of the efforts our team members made to leave a positive legacy in our community. We are happy to know the facility will continue to contribute to the health and wellness of Burnaby for years to come."
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