Saturday, October 31, 2009

The ambiguous dexterity of Adrian MacNair

Adrian Raphael Alexander MacNair, as many will know by now, has posted a retraction and an apology for calling me an "admitted supporter of the Taliban." One can quibble with the wording--it uses the passive voice, so that he doesn't make it plain that the libelous comment was his (comments don't simply "appear," Adrian). Of more consequence, two posts of his just previous to the apology undercut his sincerity and are seriously misleading and inaccurate in a number of respects. Further comments of his, like this one*, have not helped his cause either.

But the apology and retraction are substantially what I asked for from the very beginning, and I have received them without the necessity and expense of actually launching a lawsuit, which I was fully prepared to do. At this point, in my estimation, the law of diminishing returns applies, and I am also sensitive to the urgings of friends and supporters not to let this matter spiral out of control unnecessarily.

Hence, at this time I do not intend to proceed further, unless Adrian continues to undermine his own apology publicly--which, it must be said, he appears almost neurotically inclined to do.

Nevertheless, as there has been no settlement, I am advised that I am free to discuss the details of what has transpired so far. Accordingly, I wish to correct the public record, dealing in particular with the two recent posts referred to above.

1) The "financial compensation" that I requested:

Adrian made it sound in the first of the two posts as though I was attempting to seize his house, his wife and his children, and he put out an urgent plea for financial support to defend against a lawsuit that was supposedly being settled as he spoke:

As I’m a working class trade worker of extremely modest income who will likely go broke trying to fight this, any money you can help with my legal defence [any at all] would be extremely appreciated.

I can now reveal that his lawyer and mine, in discussions before that first post appeared, were indeed talking money. The sum involved was $1K. Yes, you read right.

What did that amount represent? Some of the costs incurred when Adrian attempted to evade service. I am advised that the sum I proposed was extremely reasonable, was completely avoidable if Adrian had reacted like an adult, and that I was (and still am) fully entitled to it.

Here in any case is what he had to say about that:

Nor did it seem necessary for Dr.Baglow to hire a private investigator to find my private address, to contact the B.C. Motor Vehicles department to seek where I lived, or to demand that information in a letter from his lawyer. Any costs he has incurred from this incident appear to be, using his words, largely self-inflicted.

Adrian is either sublimely ignorant of the way the law works, or he is being disingenuous in the extreme.

Most readers will know that, to serve a Notice of Libel (which is not part of a formal proceeding, but which sets out the alleged libel and allows for the possibility of settlement before an actual Statement of Claim is issued), one is
normally required by law to have it served personally on the respondent. Accordingly, as Adrian helpfully notes, an email was sent to him on September 21 requesting his address for service.

He refused to divulge it.

Instead, he responded by posting the email with the taunt, "Come and get me, Johnny." So much for always having been willing to retract and apologize, had I only sent him a personal email, as he now claims. (This would have been on top of four comments
I sent the day after the libel was published, requesting precisely that.) On September 26, he posted further, stating that he was being threatened with a lawsuit by a "coward." Still no apology and/or offer of retraction. Anything but.

Part of the problem might have been that Adrian was credulous enough to accept the "legal advice" of numerous benighted commenters. These were united in their dislike of me, but they were not exactly learned in the law--to put it mildly. His head might
also have been turned by the support of one or two vulgar bloggers. For whatever reason, he continued in his doltish behaviour.

Adrian seems to move house a lot, and it proved impossible for a bailiff to track him down in Vancouver. The Department of Motor Vehicles is not permitted to divulge the address of a licensed driver under provincial privacy regulations, so that Adrian's posted driver's licence proved to be of no help. Finally, I was forced to go to court to obtain an order for substitutional service. Successful in that, my lawyer served Adrian by email on October 10.

Please note that date. It was only two weeks later--October 24--that his "I'm being sued" post went up. By that time his lawyer and mine were, as noted, talking settlement. Adrian was NOT "being sued" at that time. And he knew full well what money was being discussed.

It seemed fair, and still does, that he pay at least a part of the funds that had to be expended because of his evasiveness. Adrian had been explicitly warned in the initial letter from my lawyer that such costs would be claimed, but still elected to engage us in a game of "where's Waldo," something no mature adult would do. In any case, no larger sum than the one asked for was ever contemplated.

2) My request for an apology:

In the second of the posts, Adrian makes a number of misleading comments:

But I need to clarify, for the record, what transpired. The very first public record I have of any comment from Dr.John Baglow was:

“Ah, I thought I had slipped up in posting my first comment. “Raphael”’s banned me–more evidence of his malice and bad faith.”

Not having any idea what he was talking about, I did not respond. 6 minutes later, he announced his intent to sue me:

“Four attempts to publish an earlier comment–all rejected by the Raphael entity.

OK, I have given fair warning, and will commence the action.”

For the record, none of these four comments were ever published on my blog for a simple reason. I never saw them. The very first indication I had that Dr.Baglow was in any way upset about the comment which is now a subject of a defamation suit is when he announced he was suing me. The four comments he refers to, I later found, wound up in a spam folder on WordPress. It was a folder I discovered for the very first time on that day. WordPress had selected his comment, among hundreds of others, for my spam folder of it’s own volition. I now routinely have to restore legitimate comments from that folder on a daily basis.


I repeat: I did not know that he wanted the comment removed until after he announced his intention to sue me.

Please note that this "announcement" of mine appeared on September 2. Alert readers will note that Adrian concedes that he discovered the existence of a spam filter "on that day." And he found therein several messages from me demanding a retraction and apology. Not one of these appears to have been "restored," but there is no question that he read them. His response, now excised from the thread, was this:

Don’t get cranky “Dawg”. I just found out today I had a spam folder! Seems you were selected for it. Very intelligent AI program this filter has.

I find it greatly amusing you would threaten to sue somebody because they defamed your pseudonym, “Dr.Dawg”.

But listen, Dawg, whether you support the Taliban from a philosophical standpoint, or whether you reject them outright, your writing on your blog undermines everything Canada is trying to accomplish in Afghanistan. In effect, since you support immediate withdrawal from Afghanistan without a security plan for the people left behind, you do “support” the idea of a Taliban-state.

So sue me. But you better get in line with Jack Layton, for every person who’s inferred the same idea.

In other words, he knew from the outset that I wanted a retraction and an apology. I leave it to the reader to judge whether his response above to my repeated request was an appropriate one.

There matters stood for nearly three weeks. The libellous words remained up. No hint of a retraction or apology was given. Accordingly, my lawyer sent Adrian an email on September 21, requesting his address so that a Notice of Libel could be served.

The libellous words abruptly disappeared. On September 29, Adrian anxiously emailed me directly, asking how far I was prepared to take this matter.
The contents of his email fell very short of the public retraction and apology that I wanted. On the advice of my lawyer, I gave a non-committal response.

On October 10, as already noted, Adrian was served with a Notice of Libel, and he retained counsel. But for reasons known only to himself, he put up his October 24 post while settlement negotiations were well underway.

Adrian's victimhood:

Adrian has managed to persuade himself, and evidently a few of his naive friends, that he's the victim in all this, and to gull some of the latter into sending him money. But let's have a look at his claims in that respect:

Three days after this incident, I traveled to Ontario for my brother’s wedding. During this time I was out of contact with most blogs and bloggers. Not once did I receive an email from Dr.Baglow asking me to retract, apologize, or delete the comment. Not ever have I received such an email.

Why would I be expected to email him, after having attempted on several occasions to post a comment to that effect at his blogsite? Comments that he admits having found in his spam filter on September 2, the same day that I sent them?

Only when I returned from Ontario to find I had been served a notice of libel, did I immediately delete the comment considered offensive by Dr.Baglow. Had he bothered to email me and ask me to delete the comment, I would have done so immediately.

"Three days after this incident" would have been September 5. He was served his Notice of Libel on October 10. During this lengthy fraternal wedding process, he was happily posting numerous entries on his blog. "[O]ut of contact with most blogs and bloggers"? Not so.

The moment I realized that Dr.Baglow was legitimately offended by the comment which is now the subject matter of a defamation suit, was when his lawyer served me notice of libel. I removed the comment immediately at that time.

As indicated, this is not the case. I had made it very clear, several times, that I was "legitimately offended" on September 2--one day after the libel had appeared. Furthermore, my lawyer's initial warning letter was sent to him weeks before Adrian was actually served with the Notice of Libel.


I hope that I have reassured most readers that my intentions from the very beginning were only to secure a public retraction and apology for a potentially very damaging allegation.

I fly frequently, and have done contract work for the federal government. A public claim that I am an "admitted supporter" of the Taliban simply could not go unchallenged, and only a full and unequivocal retraction and apology would do.

My views on Afghanistan are well-known. I support the withdrawal of our troops. But as even a cursory search of my blog reveals, I have no fellow-feeling whatsoever with the mediaeval-minded, gynocidal fanatics with whom the Canadian Forces are presently engaged.

As for the financial claim, which I will leave dormant for now, as I noted earlier it was a relatively modest amount intended to offset expenses that I was forced to incur because Adrian was childishly trying to evade service. His "poor me" bleating needs to be heard in that context.

Finally, now that I am free to say what I wish, I cannot let this go without thanking the numerous folks, including ideological sparring partners, for the considerable support that they gave me in various ways. It was a clear sign that, even in the rough-and-tumble world of the blogosphere, standards are possible.

And special thanks are due to my lawyer, who might even have set a legal precedent by managing to obtain a Substitutional Service Order that permitted service by email. His work on this file, and his advice--always helpful and direct--made him a pleasure to work with.

Comments are open: but please remain civil.

*UPDATE: Adrian has removed
the comment, and "redacted" both posts. Readers who want to follow along may find the latter cached here and here.


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