Lawsuit Arguments continue today on preliminary motions in pension case

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SAINT JOHN - John Ferguson lost his bid to return to the common council horseshoe this week, but the defamation lawsuit against him for comments made about the city's pension board at earlier council meetings was back in court Thursday.

During his first two years as a city councillor Ferguson, who finished second in the mayoralty race in Monday's municipal election, made a number of statements about the pension plan and the way it was managed. They only stopped when members of the board started a civil action alleging he had defamed them.

In May 2007, Court of Queen's Bench Justice Hugh McLellan dismissed the case before it got going, ruling that the defence of qualified privilege protects statements made by municipal councillors so strongly that the pension board members had no chance of winning.

Two months ago, McLellan's decision was overturned by the New Brunswick Court of Appeal and a new trial was ordered. Ferguson's application to the Supreme Court of Canada to overturn that decision was turned down.

In July 2006, after Ferguson had made a number of allegations of wrongdoing revolving around the pension plan, council passed a motion demanding that he present any information he had to back up his claim.

A few weeks later he made a public presentation to council during which he said the pension board's actions had cost the city an extra $5.9 million per year from unwarranted disability pensions and that he had raised that with a senior pension board member, asking if it was illegal.

Ferguson told council the pension board member said, "yes it is, but so is drinking and driving, and people do that every day."

He also said that disability pensions were granted to people simply on the basis that they couldn't get along with their supervisors. He also said a person on disability received 80 per cent of their salary and that there were 169 similar cases.

Later that summer a presentation to council by the pension board and city manager Terry Totten refuted the assumption used by Ferguson to calculate his figures. Council was told there were only 99 people on disability and two-thirds of them were also receiving Canada Pension Plan disability payments. Council was also told that the maximum pension was 60 per cent of salary.

Ferguson refused to identify who from the pension board made the statement about illegal activity and all members of the board have denied it.

The new trial is being heard by Justice Peter Glennie of the Court of Queen's Bench.

Thursday was taken up with preliminary motions from Ferguson's lawyer David Rogers and pension board lawyer Barry Morrison that have the potential to limit or even end the case again.

The court also watched several hours of videotape of council meetings from 2006. The viewing was requested by Rogers so the judge could see the context in which Ferguson made the statements that are the subject of the lawsuit.

Rogers is also arguing to have certain sections of the pension board's lawsuit excluded in an attempt to limit the case.

Although the decision from last May to throw out the whole case was overturned by the court of appeal, Rogers says the rules of court allow him to argue that specific sections of the statement of claim should be excluded.

Only after the judge rules on the motions from the lawyers can a date be set for the trial.

Arguments continue today.