Jul 122016
 

From: Samuel Edmondson   Sent: August 11, 2016 5:17 To: Sandra Flnley   Cc: Chelsey Kuspira;  Grant Scharfstein

Subject: Re: REPLACEMENT: Ashu Solo Clarity re defence

Sandra,

I’ll attend to this tomorrow when I’m back in the office. I expected this to be how you’d want to proceed, however as you know my role is to also provide options and advise. You’ve chosen with your eyes open to the options.

I’ve encountered the tragedy of the commons before. One of my undergrad degrees is in economics, and it comes up in several contexts in that program. I’ve not seen it compared to this type of circumstance, but I appreciate the comparison you’ve made. It’s an interesting and intriguing take on free speech and bullying/intimidation as it applies to the internet.

Samuel

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From: Sandra Flnley

Sent: Thursday, August 11, 2016 15:09

To: Samuel Edmondson; ‘Sandra Finley’

Cc: Chelsey Kuspira; Grant Scharfstein

Subject: RE: REPLACEMENT: Ashu Solo Clarity re defence

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Hi Samuel,

Many thanks for your conversation with Paul, and the notes on it.

Will you please pursue:

He (Paul) indicated that from his perspective one option would be:

  1. That Loosefoot note you for default (which would close the pleadings);
  2. That Loosefoot would not take out Judgment; and
  3. That Loosefoot would consent to the filing of a defence in the future.

 

MY THINKING:

  1. “That Loosefoot note you for default (which would close the pleadings)”.

Which would simultaneously clear the path forward to the Mandatory Mediation.

In your words, “this option avoids Ashu bringing the application and provides some ability to later defend against some aspects of liability

  1. I do truly regret the impact of Ashu’s actions on LFC.  I can alleviate that by agreeing to attempt “global settlement”.   …  HOWEVER!
  2. However,  in my opinion it would be a short-term fix, and it would be a larger betrayal.

 (With minor edits)

The betrayal can be understood in the framework of “The Tragedy of the Commons”.   No one of us individually is responsible, and therefore no one is responsible.   (The internet – – the air waves – – are part of “The Commons”.)

               A short read may be helpful:    Battles to protect the Commons.

EXCERPT:    . . .   battle-fronts to protect The Commons in an era of unprecedented assault on them.   Our success or failure affects the ability of future generations to care for themselves.

When there are incursions onto the Commons, people have to come together to defend it.  If not, the Commons is lost and the whole community suffers  – – a lot.

OTHER people work hard, all the time, in defence of the Commons.  Without them, one tiny example,  the quality of the water coming out of your tap would be less than it is.   Many more people would side-step the issue through the purchase of bottled water, if they can afford it.

There have been monumental efforts by people in Canada and the U.S. to stop things like tiered (preferential) access to the Internet that large corporate interests seek.

In the context of this court case:

Some of you have daughters, sisters, nieces, or are young women yourselves.   The case against me exists because I forwarded a complaint – – this older man was using the internet against a young woman, in ways you would not tolerate.

Click on:    2016-07-29   ‘What law am I breaking?’  How a Facebook troll came undone 

This recent story is of young women who had the courage to fight against such cyber-bullies, and win.  It’s a win for everyone who has a presence on the internet.   AND for everyone who has a daughter, sister or niece.

One woman, Brierley Newton, stood in defence of the Commons.  She is not asking us for our gratitude.  But she should expect that we will at least stand in solidarity when the ball lands in our court.

Standing down from Ashu Solo would be a betrayal by me.   We need to ADD to the success of these young women, not subtract from it.

You might think of the case of Amanda Todd (a teen who committed suicide as a consequence of on-line predation).  This is not as extreme, but it is related.

To what extremes will/would Ashu go?   So far, he knows that the Police and the Justice system will not touch him.

If I capitulate, not only would his belief be reinforced, but he will potentially make money (a “global settlement”) doing what he does.   He would flaunt a win, which would empower him AND others.   The above article, How a Troll came Undone,  describes the extent of the problem.

 

We leave a more violent world behind us, if we do not accept our responsibility.

The tragedy and comedy of human existence:   we are often unwitting participants in our own demise!

 

Samuel,  excerpt from my email (yesterday) to Andrew (LFC):

I cannot see my way clear to (settling with Ashu).   At an appropriate time I will do some fund-raising (a very not-comfortable undertaking!).   

I have made overtures to the Sask Law Reform Commission and to the Office of the Deputy Minister of Justice (Sask).  Both expressed  (sincere, I believe) interest in documentation I will provide to them regarding the practice of using the threat of legal action to intimidate people.   When done in the corporate sphere it is called a SLAPP suit.    

Ontario has legislation to address the practice.  I believe the legislation in a number of jurisdictions has been effective in putting an end to the SLAPP suits.   – – But now, individuals like Ashu have learned how to use the same practice.    

I might be able to on-line fund the push to get the legislation done in Sask and some other provinces.   My work is volunteer, but maybe I could use the proceeds to re-stock the larder.

 

I promise to continue paying the bills, Samuel!

Hopefully you and Paul will work out an agreement in which I am cited for default.

Thanks,

Sandra

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From: Samuel Edmondson  Sent: August 11, 2016 To: Sandra Flnley   Cc: Chelsey Kuspira ; Grant Scharfstein

Subject: RE: REPLACEMENT: Ashu Solo Clarity re defence

 

Sandra,

I spoke with Paul Wagner, Loosefoot’s counsel, a few minutes ago.  He indicates that he had a brief discussion with Andrew about settlement in which they discussed the $4,900 held in trust and global settlement of the action.  A global settlement would be a joint settlement between the defendants and Ashu, in which a single sum of money was paid.  In Paul’s view, the damages available in this action are likely to be low, and on that basis it makes sense to consider joint settlement.  The discussion with Andrew was with regard to whether in a global settlement some of the $4,900 could be used by you in payment of a global settlement.

In my discussion with Paul, I also indicated a desire to avoid the application being brought.  He indicated that from his perspective one option would be:

  1. That Loosefoot note you for default (which would close the pleadings);
  2. That Loosefoot would not take out Judgment; and
  3. That Loosefoot would consent to the filing of a defence in the future.

 

If he will commit to that in writing, although I still advise defending the counter-claim, this option avoids Ashu bringing the application and provides some ability to later defend against some aspects of liability.

With regard to global settlement, although I know that you would rather not settle with Ashu, I do advise (and am obligated to continue to advise from time to time through the litigation process) pursuing that course.  At this point I have seen no evidence of actual damage suffered by Ashu from the blog posts, aside from his somewhat erratic responses.  This leaves per se damages for some of the posts complained of.  As we have advised you, there is a good chance that if this proceeds through trial that you would be found liable for some of these posts.  In such cases, typical damage awards are in the 10’s of thousands of dollars – without having to prove actual damage.  For that reason, whether now or later in the litigation process if it is possible to settle in the range of $7,500 to $20,000 it would be our advice to do so.

At this point in the litigation, it may be worth making an offer to Ashu for global settlement with both you and Loosefoot.  Paul suggested global settlement in the range of $7,500, I am less optimistic and would suggest at least $10,000.  Ultimately, given your agreement, you in effect would pay the full sum, however some amount would ultimately be paid out of the money held in trust by Paul.  A global settlement would likely be less than each of you and Loosefoot settling individually.  Making the offer is no guarantee that Ashu would accept.  He may accept, reject, or make a counter-offer.

 

To summarize the options:

  1. Offer(s) of settlement – without admission of liability, with release(s) from Ashu, with discontinuance of the claim without costs,

a.   arranging with Paul a joint global offer of settlement in the range of $7,500 to $10,000 without an admission of liability and with Ashu releasing each of the defendants including the Russian defendant from any further liability; or

b.   requesting that Loosefoot settle with Ashu for the $4,900 offer if it is still available.  Our suggestion would be that if possible this settlement also include the Russian service provider.

2.  Attending to closing the pleadings.  If Loosefoot settles, no further action is required. Either:

a.   Filing the defence to cross-claim that I provided to you for review;

b.   Advising Paul to note you for default, provided that first he confirms in writing that he will not take out judgment, and will allow you to later file a defence.

 

On the facts available, settlement is your best option from a dollars and cents view.  We have advised that there is very likely to be a finding of liability against you for some of the blog posts.  Further, the litigation will not likely have the effect of deterring Ashu from continuing on as he has.  As much as you are opposed to settling with Ashu (which I understand very well), the corollary objectives of deterring his behavior will simply not be met in this litigation.

Of the pleadings options our advice is to file the defence.  This provides additional protection to you down the road, in the event that liability is found against Loosefoot which is not captured by your agreement with Andrew or your service agreement.  Further, it may be that Paul cannot obtain instructions from Loosefoot to agree not to enter judgment .  Finally, it is possible that in the future Loosefoot obtains other counsel who for one reason or another may not agree to be held by Paul’s commitment not to enter judgment or allow a defence to later be filed.

Yours truly,

This e-mail is confidential and is solicitor-client privileged and may contain confidential information.  If you are not the intended recipient of this message, any dissemination, distribution or copying of this message is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by return e-mail and delete this e-mail.  Thank you.

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MOOT POINT  (Sandra to herself)

RE:    “and with Ashu releasing each of the defendants including the Russian defendant from any further liability”

Why the inclusion of Fishnet, the Russian co-defendant?

–          Canadian courts have no jurisdiction in Russia.

–          Which makes the legitimacy of the original naming of them as a co-defendant a prank of some kind – – Solo, Finley, LFC, & Fishnet are not the realm of World-Wide Corporate structures.

–          the default judgment against Fishnet filed in Nov 2015 is a continuation of the smoke-and-mirrors, from my perspective.   Ashu’s lawyer named them co-defendant and then noted them for default.  It closed the pleadings which were non-existent anyway.   It was all more-or-less silliness from the beginning – – my perspective.

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From: Samuel Edmondson Sent: August-10-16 3:04 PM To: ‘Sandra Flnley’   Cc: Chelsey Kuspira ; Grant Scharfstein

Subject: RE: REPLACEMENT: Ashu Solo Clarity re defence

Sandra,

Thank you for clarifying your position on settlement.  This is as I thought.

I agree with your suggestion of encouraging Andrew/Loosefoot to settle with Solo if that option is still available to them.  There was an initial offer of $4,900, however I am unsure whether Ashu would still accept that sum.  The best option, for you, is if that offer remains open.  If that fails, we would have to file a defence to the cross-claim so that you are not put to the cost of responding to an application by Ashu.

With regard to the content of the defence to cross-claim, what you propose is not allowed for within the rules of the Court.  Further, I do not expect that counsel for Loosefoot would advise their client to accept partial indemnity (which is what you propose) at this point in the litigation.  In addition, an agreement between you and Loosefoot does not close the pleadings, which Ashu’s counsel views as a necessary step to proceeding to mediation.

At this point in the litigation, the defence I have proposed is in keeping with my understanding of the evidence and is not contrary to the agreement on costs reached between you and Loosefoot (as I understand it).  The denial and requirement to prove damages does not mean that you cannot have an arrangement with Loosefoot, either on a partial or full indemnity basis.  What it does is close the pleadings to allow the litigation to move forward.

In terms of proceeding, I have been advised by Ashu’s counsel that the application will be coming in the very near future if a defence is not filed (or settlement with Loosefoot is not reached).  Loosefoot’s counsel has not answered their phone or called me back, despite the voicemails I have left.  If you discuss with Andrew/Loosefoot, he may be able to instruct his counsel to contact me, or to contact Ashu’s lawyer regarding settlement.  In either event, settlement or a defence must occur this week to avoid the application.

 

Yours truly,

 

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