Details

Written by Gordon Prentice

Published: 06 December 2018

This afternoon the jury in the Pullano v Hinder trial has been locked away, considering its verdict and going through a list of 24 questions Mr Justice McCarthy asked them to address.

Five jurors out of the six must agree the verdict on each of the questions.  

Question 1: Was there a punch? Yes or no. Everything else flows from this. If there wasn't a punch there is no need to address a bunch of other questions.

After deliberating for hours the six members of the jury want to know the definition of a punch.

At 4.05pm the Court reconvenes and before the jury re-enters Courtroom 402 the Judge invites counsel to address him on this point.

William Reid for Pullano says that Hinder is being accused of the tort of battery which he says is some physical contact or touching without consent. The tort encompasses shoving, punching, poking.

Deborah Berlach for Hinder says the evidence was all about a punch. 

“I don’t know where to go. I don’t know there is a (legal) definition of punch.”

No physical contact beyong the handshake

Reid says Hinder’s evidence states there was no physical contact with Pullano beyond the handshake.

He tells the Judge the jury needs guidance on the law of battery. The Judge disagrees. The first question on the Charge Sheet of 24 Questions simply asks if there was a punch. The Judge says a punch is to strike with a fist. But there is no legal definition of punch. And he is not going to say anything about battery.

Reid says:

“If it is a poke or less than a punch the jury could still find (there was) battery.”

Now the jury files in and Mr Justice McCarthy tells them:

“I am a Judge of the law. Punch is not a legal term. I can’t help you on that. (The lawyers for both sides) are in substantial agreement with that.”

And with that the jury retires, none the wiser.

If they cannot reach a verdict tonight they will reconvene at 9am tomorrow.

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Collins dictionary and the Canadian Oxford dictionary both define a punch as a blow with the fist.

Update: John Abel who gave evidence in the Pullano v Hinder trial on Friday 30 November 2018 collapsed on Sunday 2 December 2018 and, tragically, has since died.

Details

Written by Gordon Prentice

Published: 05 December 2018

We learn today that Steve Hinder is seeking up to $200,000 in damages from Anthony Pullano in a counter claim for defamation. 

Hinder’s lawyer Deborah Berlach tells the jury that her client wants $25,000 - $50,000 for loss of reputation. She says Hinder was so affected by Pullano’s relentless tweeting that he “limited some of his interactions in the community”. Hinder also wants a further $25,000 - $50,000 for aggravated damages and $100,000 in punitive damages for the way in which Pullano used a public forum to attack Hinder “unremittingly”. She tells the jury Pullano published his world view that Mr Hinder was a bully, thug and racist on Twitter.

This is the defamation Hinder complains of. And these are eye watering amounts he claims in damages. 

Hinder and WOPs

In her closing speech to the jury this morning, Hinder’s lawyer says Pullano’s assertion that Hinder mouthed the word WOP is

“completely unsupported by the evidence”

Deborah Berlach is now taking the jury through some of Pullano’s most acidic tweets:

“Magna International thug who hates WOPs”

She says this means to her that Hinder is racist. She pulls up another tweet about WOPs

“There can be no doubt these were intended to lower Mr Hinder’s respect in the community.”

Now she refers to the infamous remark attributed to Hinder:

“If these WOPs get elected we will have to roll up our tents and leave town.”

No evidence?

She tells the jury:

“There is no evidence before you that statement was ever made.”

The evidence from Aurora businessman, Fred Rankel, that he heard Hinder say this was never put to the jury. With the jury absent from the Courtroom, the Judge ruled it would be highly prejudicial to the defence. 

The remark was made by Hinder to former Aurora Mayor Tim Jones in Rankel’s hearing on 10 June 2014. But the Judge ruled that Rankel could only be examined on the affidavit he swore in 2015 which focussed on the events of 20 March 2014 – the night of Jane Twinney’s nomination.

Rankel also told the Court he heard Hinder refer to the former Mayor of Aurora, Phyllis Morris, as Syphilis Morris but he was immediately stopped in his tracks by the Judge who asked the jury to leave while he (the Judge) discussed the line of questioning being pursued by Pullano’s lawyer William Reid.

Reid told the Judge getting these statements on the record was vital given Hinder’s counter-claim for defamation which was lodged in 2018.

Deborah Berlach tells the jury that these racial slurs (about WOPs) were designed to diminish Hinder’s reputation in the community.

“If Mr Hinder was a racist you would expect there to be evidence. There is none.”

Just a handshake

Hinder’s lawyer tells the jury that, on the evening of 20 March 2014 at Jane Twinney’s acclamation, Mr Hinder did nothing more than shake Mr Pullano’s hand.

“There was no physical contact of any kind other than the handshake.”

Mr Abel and Mr Desai were close beside and

“Each said clearly and unequivocally there was no more than a handshake.”

Now she hands over to Pullano’s lawyer, William Reid, who reviews the evidence, taking us up hill and down dale. He starts by quoting Webster’s Dictionary’s definition of a bully. He says:

“If (the jury decides) Hinder is a bully the defamation action fails.”

Rehearsed

He tells the jury Pullano’s witnesses are not rehearsed. There are some inconsistencies but this points to greater veracity. Wanda Cena, for example, can’t recall which hand Hinder used to punch Pullano. 

Reid says Hinder’s witnesses are all rehearsed. They remembered the exact words uttered by Hinder when the words (back then) were of no consequence.

Reid tells the jury Magna’s Mark Neeb sat on Pullano’s complaint of 26 March 2014 and did nothing about it until September 2014. 

Now Reid is focussing on Hinder’s memory.

On 22 May 2015 when Hinder gave a full statement on the events of 20 March 2014 he did not mention the second interaction with Pullano.

Hinder says he first became aware of Pullano’s allegations of assault on 22 May 2015. Magna’s Mark Neeb said he told Hinder in September 2014.

Reid says that Hinder was specifically asked if Neeb told him about the assault. Hinder says no.

Memory lapses

Hinder does not recall the encounter when Pullano says to him:

“Listen you fuck I am calling Magna. Tomorrow I am calling…”

Reid closes by summarising the medical evidence. He says the jury must decide on the balance of probabilities if an infection was caused by a punch. He says Pullano had to go through two operations, one to take out the old infected ICD and another to implant a new one. He says Pullano’s heart function has deteriorated. He summarises Pullano’s claim: $100,000 - $125,000 for general damages and a further $50,000 for aggravated damages and $100,000 for punitive damages, deterring others from doing anything similar.

As Reid sits down, Deborah Berlach immediately flags up six concerns about his closing speech. The Judge agrees with Berlach and gives Reid a public dressing down.

The Judge tells the jury to disregard various points because they are irrelevant, inappropriate or are not supported by the evidence. Personally, I think it is all a bit harsh but then what do I know? I am not a lawyer but I do have a very highly developed sense of justice and what is right and wrong.

Reid referred to Hinder as “muscle” who leaned (unsuccessfully) on Chris Ballard’s office to get them to advertise in Aurora Snap’d. We are told that is inappropriate. 

Reid is told he can’t tell the jury that an early apology from Hinder would have sufficed. 

He can’t refer to Fred Rankel’s friend Roy Cohen who was with him at the Jane Twinney acclamation as, perhaps, “another set of eyes” when Cohen was not called as a witness. 

Reid can’t suggest collusion between Hinder and his witnesses although the jury can draw that inference if they are so minded. 

He can’t say Hinder and Neeb got their wires crossed on when Hinder first knew Pullano was claiming there was an assault.

I don’t know how much weight the jury will give to this stuff.

Who is lying?

My advice to the jury (not that they should or will be reading this) is to keep it simple.

Did Hinder punch Pullano? Or was it a handshake?

In other words

Who is lying?

Tomorrow, Thursday 6 December 2018, Mr Justice McCarthy sums up the evidence and gives his directions to the jury.

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Details

Written by Gordon Prentice

Published: 04 December 2018

Tomorrow (Wednesday) the jury of four women and two men in Courtroom 402 of the Superior Court of Justice in Newmarket will hear the closing arguments from the lawyers from both sides in Pullano v Hinder.

Anthony Pullano who says he was punched in the chest by Hinder using a closed fist. And Hinder who denies this. It was just a handshake.

I have been reflecting on the evidence and what I’ve heard in the Courtroom. Of course, I know things that were kept from the jury because I was listening to the legal arguments put by both sides to the Judge when there were matters of contention. The jury had to leave.

I struggle to keep up. I am not a lawyer. Nor a pretend lawyer.

Like everyone else in the public gallery I couldn’t see the exhibits that were shown to the jury on a big TV screen. I had to use my mind’s eye as best I could.

I believe Anthony Pullano is telling the truth when he says he was punched in the chest on his ICD. I believe Steve Hinder when he told us he didn’t know it was there. I believe on the basis of the medical evidence that the infection was caused by a punch. Throughout this whole business I have asked myself why Pullano would invent the assault and stick with the story for four years. 

What kind of person is Steve Hinder?

He can be charming, I’m sure. During his first day on the stand the Court clerk rose to help him find tab 8 in a huge bundle of documents. He finds the tab before she gets to him and I see him smile at her and wink.

But is there a darker, aggressive side to Hinder? 

It’s my money!

On Tuesday 27 November 2018 Brian Morris gave evidence. Morris worked for former MPP Chris Ballard and had signing authority for the MPP’s office budget which included advertising events that the MPP wanted to promote such as the Leading Women and Girls’ Awards.

This included advertising in Aurora Snap’d, a newspaper jointly owned by Hinder and Melanie Bell. 

Morris tells the Court he didn’t feel that Ballard was getting enough bang for the buck and stopped advertising in Snap’d Aurora though he continued to advertise in Snap’d Newmarket.

In May or June 2016 Hinder called Morris about buying advertising saying loudly:

“It’s my money!”

Morris corrected him saying it was the taxpayers’ money not his.

“It sounded as if he was demanding money from our budget.”

“Not quite yelling but close to it.”

According to Morris, Hinder said “It’s my money!” three times, quite aggressively.

Hinder’s memory

And how good is his memory? He can remember some things that happened on 20 March 2014 with crystal clarity. But other things are just a big blur. 

On the first day Hinder gave evidence there was a curious moment when we all saw him answer “yes” to a question while shaking his head from side to side. I remember thinking at the time, how strange.

And after Hinder allegedly shook Pullano’s hand (the famous “and who are you supporting tonight?” moment) he tells us he walked towards the stage.

“I probably said hello to Frank Klees…”

I think I’d remember. Hinder told us one of the main reasons for going to Jane Twinney’s acclamation meeting was to hear what Frank Klees had to say. Klees who was standing down as an MPP was a man he respected.

Hinder was asked if he supported any candidate in the 2014 election financially. He tells the Court that if he did it was Mayor Dawe.

From time to time I make political donations and I always remember who I’m giving money to. If you are making zillions of donations you can be forgiven for forgetting. But Hinder can’t remember his one donation. If, indeed, he made one.

Why is this kind of stuff important? Because the jury is trying to assess the truthfulness of the witnesses. 

WOPs

We know from Fred Rankel that Hinder said they’d have to roll up the tents and leave town if the WOPs got elected. The Judge said this evidence was inadmissible and would be severely prejudicial to the defence. Fair enough. (The jury is instructed to stay well clear of social media during the trial.) Yet why would Rankel invent such a story? 

We know Rankel is a man who is comfortably well off. He said as much in answer to a question from Pullano’s lawyer. He had known both Hinder and Pullano for about 15 years and was beholden to neither. 

Earlier Pullano had told the Court:

“Fred Rankel is a self-made man. He owns half of Aurora real estate. But if you meet him he looks like the maintenance man.”

Not quite. But we all know what Pullano meant.

Magna’s Mark Neeb

Last Friday, Mark Neeb took the stand. He is Chief Human Resources Officer for Magna. He is responsible for compensation, employment law and labour relations and other matters. But he has no formal training in law. He was the Chief Administrative Officer for the Town of Aurora from 1995-98. 

Neeb was not at the Jane Twinney nomination meeting.

He is confident and commanding in the witness box. Neeb speaks loudly and clearly in precise paragraphs with perfectly formed sentences. The contrast between him – all rectitude and order - and the rambling Pullano is profound.

“I first met Mr Hinder informally right from when I arrived in town. He was identified as a possible citizen of the year. And he was (subsequently) chosen.”

Neeb considers Hinder a friend.

The March 2014 conversation

Pullano called Neeb on 24 March 2014 and spoke to Neeb’s executive assistant. Neeb says he returned Pullano’s call within 24 hours and they spoke for about 15 minutes.

Neeb must have taken a note of that call or else he has perfect recall. He tells us the conversation touched on three things.

Pullano spoke to Neeb about his wife and son. He then talked about his (Pullano’s) desire to run for Council in 2014. He wanted to know what was going on in Aurora and what impact rules and regulations had on Magna. He then talked about the car industry. And then he said he was contemplating running for Mayor rather than standing for councillor.

Neeb says Pullano never told him he had been punched by Hinder.

Neeb says that if he had done so Magna would have followed the protocols and launched an investigation. 

The September 2014 meeting

On 16 September 2014 Pullano had a meeting with Neeb that lasted for about 45 minutes.

Neeb says Pullano talked about the issues facing the town and tested some campaign slogans on him. Pullano then raised the issue with Steve Hinder. Pullano said Hinder assaulted him, punched him. He wanted an investigation.

“I told him for sure we would. We had a protocol in place.”

“(But then) he indicated he was taking legal action. I was very clear to him things would go in a different direction.”

Neeb tells the Court he didn’t make a note of that meeting but went straight to his legal people and told them what had happened.

How Magna decides on political donations

Neeb explains how Magna deals with donations to politicians and those running for office. At no stage did Pullano ask Magna for money. Possible donations are reviewed by Magna’s Social Responsibility Committee and are ultimately approved by Neeb. We learn there are very strict protocols in place.

“I am not a bagman. I find that offensive.”

Neeb tells the Court Hinder would be consulted about donations to candidates and asked for his recommendations.

When he gave evidence on Wednesday 28 November 2018 Hinder told the Court:

“I make representations… It is my responsibility to understand what the needs are in the community.”

Pullano’s lawyer is stopped in his tracks by the Judge when he tries to ask Neeb about Magna International’s $125,000 interest free loan to Bryan Cousineau, the then Chief of Police of York Region. Cousineau resigned and pleaded guilty in 1998 to breach of trust charges. 

Neeb says he has no knowledge of any of that which was before his time.

Pullano’s lawyer puts it to Neeb:

“Your plan was to defend Mr Hinder. Not investigate.”

Neeb replies:

“I completely disagree.”

The medical evidence

The Court heard from three doctors, two called by Pullano and one by the defence.

The key issue here is causation. 

Was the infection of Pullano’s ICD caused by the alleged punch on the chest (which Pullano insists was caused by Hinder’s closed fist) or was there a pre-existing condition which only manifested itself after 20 March 2014?

Personally, I found the evidence presented by Dr Andrew Morris very persuasive. He is the expert’s expert on infectious diseases and how to treat them. He told the Court firmly and without any hesitation that the infection which showed in Pullano after 20 March could not have been there at the time his ICD was inserted the year before. There was no latent infection.

Pullano’s cardiologist at Southlake, Dr Alfredo Pantano, was the doctor who removed the ICD “because it was infected”.

The Court is taken through a detailed chronology of when Pullano went to Southlake and its ICD clinic. In June dark brown spots are discovered on Pullano’s chest and on 26 June 2014 the ICD is removed. 

The medical notes

A huge amount of time is spent going through the medical notes. Dr Pantano wants to supplement with his own views the information in the medical notes. The Judge will not allow this. He rules that in giving evidence Dr Pantano must only comment on the notes as written up at the time and not make any other observations. The Judge says the doctor must stay within the “four corners” of the clinical notes. 

As a lay person, I can see why the rules of evidence do not allow for this – to prevent subsequent embellishments. Dr Pantano was not allowed to fill in the blanks.

In cross examination for the defence, Hinder’s lawyer makes much of the fact that in the clinical notes – on the clinical examination dates specified by her – there is no mention of a punch. 

Dr Eugene Crystal

On Thursday 29 November 2018, Hinder’s lawyers called Dr Eugene Crystal, a cardiologist and an expert in electrophysiology. He knows a lot about ICDs. This is the first time he has been called as an expert witness.

As the questions unfold I marvel at the skill of the lawyers on both sides who navigate their way through unfamiliar medical terminology and ask insightful and penetrating questions.

Hinder’s lawyers have asked Dr Crystal to review all the clinical notes and provide “opinion evidence”.

Dr Crystal tells the Court:

“Mr Pullano suffers from a slow manifesting infection of the device caused by the contamination of the pocket at the time of implantation.” (The pocket is the hole made in the chest to take the device.)

Dr Crystal says he is not an expert on infectious diseases and having read Dr Morris’s report he tells the Court:

“I deeply disagree with Dr Morris.”

Dr Morris had said there was no evidence of infection before 21 March 2014.

Dr Crystal describes the infection as slow and “indolent”.

Dr Crystal mistakenly thinks Pullano was on blood thinners prior to 20 March 2014. 

He is asked if it would take a lot more force to damage the ICD without blood thinners being present.

“Yes. The premise is correct. My conclusion is incorrect. I was misinformed.” 

Now we are hearing about blood tests, nurse qualifications and whether antibiotics work for indolent infections. Now we are hearing about bacteria becoming resistant to drugs.

“I am not an expert to the level of Dr Morris.”

I put down my pen.

At last, something I fully understand.

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Details

Written by Gordon Prentice

Published: 04 December 2018

Newmarket Mayor John Taylor and Regional Councillor Tom Vegh said yesterday they would not be voting for Mario Racco for Regional Chair if he throws his hat into the ring on Thursday evening. 

Taylor is unequivocal:

“I think it is highly unusual of him to indicate he will only run and provide an address at the meeting outlining his positions and vision if he is guaranteed a win. This is not an approach I can support.”

Tom Vegh says:

“He (Racco) told me that he will only be submitting his name for Regional Council Chair if he has a guarantee of 11 or more committed votes… I told Mr Racco that I am satisfied with the leadership provided by Chair Emmerson and will be supporting him.”

Racco complains of backroom deals being part and parcel of the process of selecting the Chair of the Regional Council. On that I agree with him.

But, perversely, his own campaign now smacks of the very thing he is complaining about – backroom deals.

Racco is absolutely right to meet members of the new Regional Council and canvass their support in any way he thinks fit. But – always assuming he has someone to nominate and second him -  he must have the courage of his convictions and follow through. 

Willing to wound and yet afraid to strike

He should address the Regional Council on Thursday evening at its inaugural meeting, setting out his stall.

He should tell us why is he running. And what will he do as Chair that Wayne Emmerson won’t do.

Racco will, of course, be putting himself in a very exposed position. What if he fails to win? Or loses badly?

When Newmarket’s John Taylor was a candidate for Regional Chair in 2014 he received 4 votes out of 20. A handful of people saw the vote as a huge humiliation.

On the contrary, in my eyes it enhanced Taylor’s reputation and did him no harm whatsoever, either in the short or long term.

If Mario Racco is serious about becoming the indirectly elected Chair of York Regional Council he should turn up and make his pitch.

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Update on 6 December 2018. This evening Wayne Emmerson was acclaimed as Chair of York Regional Council. There were no other candidates.