Action and reaction

The Cons' unauthorized recording of an NDP caucus meeting may have taken a back seat to Harper's prorogation crisis last month. But it's good to see that the NDP is keeping the issue alive - and the latest reports may only hint at what's coming:

The NDP wants the names of "any and all individuals" involved in the Conservative decision to record and distribute copies of a New Democrat caucus meeting – and it is threatening legal action to get them.

A letter from NDP counsel presses the Conservatives for the information and strongly suggests litigation will follow unless the names are forthcoming.

"Our client will, if necessary, take appropriate measures to protect its interests," says the Dec. 23 letter from lawyer Steven Barrett to Arthur Hamilton, counsel retained by the Conservatives...

The letter from Barrett reveals a Dec. 3 conversation in which Hamilton is said to have told him the Conservatives would stop publicly referring to the recording, and that they were prepared to address NDP concerns.

The letter also notes the NDP's demand for the names of everyone who participated in the recording and distribution of the tape, as well as those involved in the decision.

"Please let us know how you would like this matter to unfold and provide us with the information we have been waiting for, or in the alternative, confirm that you are authorized to accept service on behalf of the Conservative Party of Canada and its various members and employees of any legal proceedings my client may initiate."

Now, it's worth noting that the above paragraphs - especially the last one - suggest that the NDP is doing far more than simply maneuvering to get the names of the Cons involved. Indeed, any attempt to get the names now looks to be merely a means of setting a broader litigation process in motion to claim damages from the Cons for their wrongful taping and distribution.

At this point, the only apparent obstacle to the NDP issuing a claim is that aside from John Duncan's role, it doesn't know for certain who bears responsibility for what.

There are a few ways around that problem. The apparent preferred option is to have the Cons supply that information, which would make it a relatively simple matter to include the relevant names within the original claim and serve it personally on the Cons involved.

Of course, the Cons don't figure to be eager to cooperate, as the list of names and descriptions of actions would have obvious political implications. But there is another equally viable option alluded to in Barrett's letter.

Some of the defendants can be identified only by their actions for now rather than names, so long as the NDP can show that the claim was properly served on those affected. Which is where the request to have Hamilton accept service on behalf of all Con members and employees becomes significant: if he agrees, then the NDP won't need to worry about the names for now, and can fill in the blanks based on information which the Cons would be required to provide as the litigation proceeds.

If the Cons aren't willing to cooperate even to that extent, then the final recourse would be to seek a court's approval to serve the unnamed defendants through another means. I'd have to think the Cons would think twice about going down that route, since the NDP could frame a request to involve putting public notices in newspapers about the Cons' wrongdoing at their own expense. But if the Cons are determined to obstruct as much as possible, that would be the fallback option.

Again, the important point is that the NDP looks to have everything in place for a claim against the Cons except a means of determining who it needs to serve and how. And the fact that the Cons have already tried to "address NDP concerns" in a likely attempt to minimize the eventual damages suggests that they fully expect the end result to be in the NDP's favour - meaning that there's every reason to look forward to what will happen with the claim.