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Judge believes Elizabeth Ball, B.C. Lee — not Kim Kerr

March 11th, 2009 · 3 Comments

The judgment came down in the lawsuit between Downtown Eastside Residents Association guy Kim Kerr and former councillor Peter Ladner over Peter’s claim that Kim had made a threatening remark about Elizabeth Ball. I won’t repeat all the details — they’re here in the lawsuit, which you can read here.

Citation: Kerr v. Ladner,
2009 BCSC 321
Date: 20090311
Docket: S072708
Registry: Vancouver
Kim Kerr
Peter Ladner
Before: The Honourable Madam Justice B.J. Brown
Reasons for Judgment
Counsel for the Plaintiff: J. Gratl
Counsel for the Defendant: G. Macintosh, Q.C.
N.T. Hooge
Date and Place of Trial/Hearing: March 2 – 4, 2009
Vancouver, B.C.
Kerr v. Ladner Page 2
[1] This is an action brought by Mr. Kerr in defamation against Mr. Ladner.
[2] The essence of the claim is set out in the statement of claim, where Mr. Kerr
pleads that on April 12, 2007, Mr. Ladner stated on CBC Radio One:
Kim Kerr, after the meeting in the Council Chambers, came up to
Councillor [Elizabeth] Ball, and said “you’d look good lying in an alley,
on your back in an alley, with that red scarf tied tight around your
Mr. Kerr pleads that he actually said:
Maybe you can take your red shawl and give it to a woman who is
going to be cold on the street tonight, because as nice as it may look
on you, it could come in handy.
[3] Mr. Kerr pleads that the broadcast of the defamatory statement caused
serious damage to his personal credit, character and reputation. He relies on s. 2 of
the Libel and Slander Act, R.S.B.C. 1996, c. 263, and seeks damages.
[4] The defendant replies that the words attributed to him are true, and that they
were said without malice on an occasion of qualified privilege.
[5] The incident which gives rise to these events occurred on the night of October
19, 2006, at the end of a long day of committee and council meetings. The
contentious issue on the agenda that day was a motion to place a moratorium on
conversions of single resident accommodation (“SRA”). The meeting of the
Kerr v. Ladner Page 3
Standing Committee of Council on Planning and Environment started at 2:00 p.m. on
October 19, 2006, and it is common ground that there were a number of speakers
who were in favour of a moratorium on such conversions. It is also common ground
that it was a very emotional meeting and that a number of people were outspoken
through the course of the day. The committee meeting concluded with a resolution
“that speakers having been heard, discussion and decision on the motion
moratorium on SRA conversions be referred to the future meeting of council which
will include the staff report on SRAs”. That motion was carried and the committee
meeting adjourned at 9:30 p.m. A council meeting followed immediately. The
council meeting completed at 9:35 p.m.
[6] There was a filmmaker, Conrad Schmidt, who attended the meeting and took
videotape of at least some portions of the meeting. Part of that video was
introduced in evidence. That video clip catches the end of the committee meeting.
A number of the spectators in the gallery are heard making loud comments.
Amongst them is Mr. Kerr, who says, amongst other things, “Maybe you can take
your red shawl and give it to a woman who is going to be cold on the street tonight,
because as nice as it may look on you, it could come in handy.”
[7] The primary factual issue in this trial is whether that was the extent of
Mr. Kerr’s comments with respect to the red shawl, as he asserts, or whether he
made the additional comments, as stated by Mr. Ladner.
The Evidence
[8] Five people testified with respect to the statement in question.
Kerr v. Ladner Page 4
[9] Conrad Schmidt is an independent filmmaker. He was present at the
meeting, taking video that he hoped to use in his film “Five Ring Circus”.
Mr. Schmidt testified that he had attended that meeting because of the agenda item
regarding the moratorium on SRAs. He thought that there would be a connection to
his film. He said that he had arrived very early and left at the very end. He said that
he had not been aware that he had footage of the events until Mr. Eby (one of the
other participants at the meeting of October 19, 2006) brought it to his attention after
April 12, 2007. Mr. Eby told him that he, Mr. Schmidt, had been there for the
statement about Elizabeth Ball. He found the portion of his recording and posted
that clip to Youtube. He said that he started recording after the decision was made
at the committee hearing regarding the SRAs. He said that the crowd was becoming
more rowdy. After the video ended, he was there one or two minutes, possibly
another three minutes, packing his bags. He said that he did not see Mr. Kerr return
after he finished filming. He did not film the council meeting.
[10] Mr. Kerr said that he had attended with a large group to speak against
closures of the SRAs. He said that he would have spoken officially for about five
minutes. To the best of his recollection, he left after the statement caught on the
Schmidt video was made. The business of the group was finished and he did not
know what was on the remainder of the schedule. He was adamant that he did not
make a death threat. He denied ever crossing into the body of the Council
Chambers. He said that he had no recollection of what he did during the day before
attending the meeting, or who he went to the meeting with. His best recollection
would be that he went alone. He said that he did not recall who he left with. He may
Kerr v. Ladner Page 5
have accepted a ride with Jean Swanson. His habit is to go directly home and he
had no memory of doing anything different. He thought that he would recall had he
done something different. Mr. Kerr said that his only conversation with Councillor
Ball was recorded in the video taken by Mr. Schmidt.
[11] Elizabeth Ball testified that she did not know Mr. Kerr before that night.
However, she recognized Kerr as he had spoken earlier in the meeting and had
been identified. She said that at the end of the committee meeting, she had stood to
leave but had been called back by Councillor Capri. After a brief council meeting,
she and Councillor Lee stood to clear their desks. Mr. Kerr came directly over in
front of her desk in the Council Chambers. He was very angry and bouncing on the
balls of his feet. He said to her, “Oh, you’ll look great lying in an alley with that red
scarf tied tight around your neck”. She said that Kerr then turned to face Councillor
Lee to her left and said something to the effect of “and your children should die”.
She did not hear the whole of the comment to Councillor Lee. She said that
Mr. Kerr’s comments to her had upset her, that her ears were red, and her blood
pressure was up. She said that Mr. Kerr then left, still talking and shouting as he
went out the Council Chamber door. Councillor Lee told her to write it down, and
said “let’s get out of here”.
[12] Councillor Ball’s chambers were immediately outside of the Council
Chambers, and they went into her office. She sat down at her desk and wrote down
the statement. Then, she and Councillor Lee went to see staff members to tell them
to ensure that a copy of the tape of the council meeting was kept. (Ultimately,
because of glitches in the system, the recording was lost.) After that, she and
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Councillor Lee spoke with Councillors Anton, Ladner and Capri and told them what
had happened. She said that in her twenty years of attending council chambers, she
had never seen anything like it.
[13] She went home, spent a long time talking to her husband. She was terrified.
She was not able to sleep that night, and at approximately 4:00 a.m. she got up to
try to write out what had happened.
[14] She went to work on the 20th and again wrote it all out just before she went to
work. Later, she spoke with Police Chief Graham in Council Chambers about the
incident. He said to her words to the effect that without the tapes, she would not be
able to go forward legally, it would be a “he said/she said” situation. She decided
not to pursue the matter further without the recordings. She told the NPA caucus of
Graham’s remarks and of her feelings, and that she did not want to proceed with
[15] Bar-Chya Lee, known as B.C. Lee, testified. He was a member of council
from December 2005 to December 2008. He attended the council meeting and the
committee meeting of October 19, 2006. He identified himself and Mr. Kerr as well
as others in the “Youtube” video. He explained that at the end of the committee
meeting, he thought that the meeting was over, but then was reminded that there
would be a short council meeting following. He returned to his seat, as did
Councillor Ball. After the council meeting, Mr. Lee again stood up to leave, as did
Ms. Ball. Mr. Kerr arrived in front of them and spoke to Elizabeth Ball. He heard
Mr. Kerr speaking in an elevated voice and recalls the words “red scarf around
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neck”, “lying down”, and “back lane”, although he was not certain of the entire
conversation. Mr. Lee said that he was quite shocked and said to Elizabeth Ball,
“Did you hear that?” He confirmed that Mr. Kerr said something to him about his
children and he should watch out, but he does not have children and did not feel
threatened by the comment. Mr. Lee walked out with Ms. Ball. He said that she was
obviously disturbed and that he said to her “You will write this all down”. He said
that Ms. Ball has the habit of making her own notes, in any event. They went to her
office. They went as well to the mayor’s office and asked staff to check for the tape
to see if the comments were recorded. Mr. Lee was present when Ms. Ball spoke
with Chief Graham about the incident. There was an NPA caucus meeting shortly
after October 19 where Ms. Ball raised the issue and Mr. Lee verified that it had
happened. Mr. Lee knew who Mr. Kerr was. He described him as an active and
enthusiastic participant at council meetings. Mr. Lee heard what Mr. Kerr said, but
cannot quote it exactly. He does recall three points: red scarf, around neck, lying in
back lane.
[16] Sister Elizabeth Kelliher testified. She is the chairperson of the Downtown
Eastside Residents Association (“DERA”). She testified that she went to the council
meeting on October 19 regarding the moratorium. She left immediately after the
vote was taken. Mr. Kerr had remained behind and she recalls him speaking loudly.
She knew that he was very upset and “really tried” to get him to come along with her.
She heard him say something about a red scarf. He was behind her and she does
not know exactly where. He eventually did follow her. They left together and rode
the bus home together. She was not aware that there were two meetings and the
Kerr v. Ladner Page 8
vote she recalls was the vote against the moratorium. She did not stick around for
more. She was on her way to the elevator until she heard Mr. Kerr’s voice and then
she turned back, she estimates approximately 1-2 minutes later.
[17] I accept the evidence of Mr. Lee and Ms. Ball regarding the events of that
evening. Their evidence is entirely consistent with each other and the two of them
were present and heard the comments that Mr. Kerr made. Mr. Lee knew Mr. Kerr
from various council meetings. Ms. Ball knew Mr. Kerr because he was introduced
earlier in those proceedings.
[18] Ms. Ball made detailed notes of the events. She immediately noted down
what was said and then made lengthy notes of the events later that night and the
following morning.
[19] I do not accept the plaintiff’s submission that Mr. Lee and Ms. Ball are
confused, that they are thinking of the comment made by Mr. Kerr and caught on the
Schmidt videotape. Ms. Ball was clearly upset by the impugned comment, as her
notes made contemporaneously indicate, and as apparent when she was giving her
evidence at trial. The events had a strong effect on her. It is likely that she would
remember them and not be confused. Furthermore, in viewing the Schmidt
videotape, Ms. Ball is not paying particular attention when Mr. Kerr makes his
comments about the red scarf, and does not appear upset. Nor does Mr. Lee
demonstrate any concern as a result of those comments. This is completely at odds
Kerr v. Ladner Page 9
with their description of their response to Mr. Kerr’s later comments about the red
scarf. I am satisfied that there were two separate incidents.
[20] I reject the plaintiff’s contention that Ms. Ball’s faculties were impaired and
she is not able to correctly perceive and recall events. There is no evidence that
Ms. Ball’s perception and recollection of events such as these was impaired in
October 2006.
[21] With respect to the evidence of Sister Kelliher, I have no doubt that she is
accurately stating her recollection of events. I accept that she and Mr. Kerr rode
home together on the bus. However, these events took place 2½ years ago. There
would be no reason for her to recall the details in the intervening period. It was a
very short time between the end of the committee meeting and the end of the council
meeting, five minutes according to the minutes of the meetings. This is far too short
a time to rule out the possibility that Mr. Kerr returned to the Council Chambers
again, after the Schmidt video clip, and made further comments to Councillor Ball
and Councillor Lee. Sister Kelliher was not with Mr. Kerr throughout.
[22] With respect to Mr. Kerr’s evidence, he has a vague recollection of that day.
He does not recall how he got to the meeting or who he travelled with; his evidence
is as to his usual practice. Similarly, he had no recollection of how he left or who he
travelled home with. He too had no reason to have a detailed memory of events.
The matter first came to his attention in April 2007, whereas the events in question
took place in October 2006. He did not make notes of the events and, as I say,
obviously has a vague memory of the day. In my view, Mr. Kerr is honestly mistaken
Kerr v. Ladner Page 10
about events. When the Schmidt video was produced, he believed that to reflect
what he said at the meeting. In my view, his memory is faulty.
[23] For the reasons stated above, I prefer the evidence of Councillors Ball and
Lee. I accept that the impugned statements were made. This being so, the defence
of justification succeeds and I do not need to deal with the other aspects of the
pleadings. The action is dismissed. The parties may make submissions as to costs
if they are not able to reach agreement.
“B.J. Brown J.”
The Honourable Madam Justice B.J. Brown

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