Bob Mackin
A B.C. Supreme Court judge has thrown out a retired mining tycoon’s defamation lawsuit against a charity watchdog.
Former HDI Mining executive Scott Cousens sued Vivian Krause over three letters she published on her Fair Questions blog in 2021. Krause cast doubt over Cousens’ $23 million in donations to the 2013-opened Fortius Sport Centre in Burnaby. Cousens laid claim to the single, largest philanthropic gift in Canadian sports history.
Vivian Krause (Fair Questions)
After Fortius announced it would close at the end of 2020, due to the effects of pandemic restrictions, City of Burnaby paid $25.8 million for the complex. It was renamed the Christine Sinclair Community Centre in September 2023 for the Burnaby-born, former Canadian national soccer team star.
Krause claimed that Cousens “became the front man of an elaborate scheme that involved loans, not true gifts” in her letters to Cousens, charity lawyer Blake Bromley, B.C.’s Auditor General, RCMP and Burnaby civic officials.
Through her research of public records, Krause claimed that the total amount of gifts from Cousens’ private foundation to Fortius totalled just $130,000.
After Cousens sued, Krause successfully applied for the case to be dismissed under the Protection of Public Participation Act, the formal name for B.C.’s anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation.
Justice Kevin Loo heard arguments on May 13 after the hearing was postponed in December and February due to a shortage of judges.
Loo’s July 15 written decision found that Cousens failed to demonstrate that Krause’s letters were not protected by the defences of justification and fair comment. Loo also rejected Cousens’ contention that Krause acted with malice.
“Proof of overzealous conduct does not establish malice,” Loo said.
Krause alleged a “series of circular, self-cancelling transactions” took place involving $74.7 million gifted to Fortius by Bromley-created CHIMP and that the money was used to repay five other Bromley-created charities, which then made gifts back to CHIMP. Loo said it was beyond the scope of Krause’s application for him to decide the legitimacy of the transactions, but he noted that Cousens “does not appear to deny the basic facts underlying Ms. Krause’s allegations.”
Scott Cousens (Amarc)
Instead, Cousens accused Krause of misunderstanding because the Fortius funding model was based on accounting advice.
Loo said Cousens deposed that his relationships with others had been affected by the publicity, but he did not provide specifics. Loo said he may be shunned for other reasons, such as a 2018 Globe and Mail exposé on Bromley that identified Cousens as a client.
“The harm Mr. Cousens likely suffered, or will likely suffer, as a result of Ms. Krause’s expression is not serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression,” Loo ruled.
Loo also pointed out the disparity between the plaintiff and defendant, and suggested that Cousens could have countered Krause’s allegations elsewhere.
“Mr. Cousens acknowledges that he has substantial financial means at his disposal. He has sufficient resources to dispute Ms. Krause’s allegations in the ‘court of public opinion’ if he wishes to do so,” Loo wrote. “Although Ms. Krause has been raising funds for her defence through a ‘GoFundMe’ webpage, it is clear that she does not have the resources that Mr. Cousens has.”
Krause raised more than $31,000 through GoFundMe and the judge awarded Krause some costs. She said that will not be enough to pay her lawyer, Dan Burnett, who she called wise and compassionate.
“This is a wake-up call for the [Canada Revenue Agency] and for all British Columbians, all Canadians because the issue at the heart of this is the sad truth that some of the largest charitable donations in Canadian history are a sham,” Krause said.
Cousens has not immediately responded for comment.
CRA revoked the Fortius Foundation’s charitable registration in July 2022. An audit found it was not operated exclusively for charitable purposes, and it failed to maintain adequate records, properly provide donation receipts or file an information return.
A Federal Court of Appeal judge rejected the Fortius appeal in October 2022. In May 2023, the Supreme Court of Canada dismissed Fortius’s application for an appeal.
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