Durkin v. Marlan: How a Journalist’s Article Landed Her in a Legal Battle

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March 15, 2022

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Journalism, Law & Justice

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(SOOKE, British Columbia) — For the first time in Tori Marlan’s journalistic career, she found herself the subject of a lawsuit after covering the story of a couple who sold their hotel to an alleged American fugitive. 

Writing for the Victoria news website, Capital Daily, Marlan had chronicled the case of Frederique and Sinclair Phillips, the former owners of the Sooke Harbour House, whose ownership of the hotel was challenged in court by a man named Timothy Durkin. He later sued Marlan for defamation and privacy tort. 

The Sooke Harbour House was built, owned, and managed by the Phillips’ for 35 years. The hotel once stood as a mecca for curated luxury and a farm-to-table restaurant. It was sold in 2012. 

In March 2014, Durkin, at the time an alleged fugitive accused of fraud with an indictment in America, and his business partner Rodger Gregory, offered to buy the hotel under Durkin’s company SHH Holdings Limited. 

In court records, it was claimed that the Phillips’ dealings with Durkin were a “six-year odyssey of lies, excuses [and] threats.” Durkin sued the Phillips’ in 2020 under his companies SHH Holdings Limited and SHH Management Limited to gain ownership over the hotel.

Marlan, a journalist of 30 years, covered the lawsuit and the 56-day trial in her article, “The man who stole a hotel: How Timothy Durkin took control of Sooke Harbour House,” on April 22, 2021. Durkin filed a lawsuit for defamation and privacy tort on Sep. 13, 2021. 

“I’d expected it — I had good reason to believe Mr. Durkin was litigious — but it still felt horrible. I’d made it pretty far into my career without getting sued, and even though I knew his claims were baseless, you can never predict the outcome of a court case. So I felt a mix of dread and anxiety.” Marlan said via e-mail. “My reputation and that of my publication were at stake. Defending the lawsuit also would be expensive, and I didn’t know if the legal bills would run Capital Daily into the ground. It felt like a lot of jobs were at risk.”

Though other publications, such as the CBC and the Sooke News Mirror, had reported on the Phillips’ case, they did not face legal action. Durkin sued Marlan and her editor Jimmy Thomson, Capital Daily, and Overstory Media Group, the parent company for Capital Daily. He also sued Farhan Mohamed, the co-founder & CEO of Overstory Media Group, and Andrew Wilkinson, a tech-investment funder for Capital Daily and co-founder & executive chairman of Overstory Media Group. 

“I found it curious that [Durkin] named Andrew Wilkinson in the lawsuit. Andrew has a lot of money, but he has nothing to do with our editorial decisions,” Marlan noted. 

Marlan’s defense attorneys applied for a dismissal order, arguing that the article was a matter of public interest and that Durkin had not established the three statutory conditions required by law to permit the proceedings from continuing. Durkin had to establish that his allegations had substantial merit, prove that there were no valid defenses available, and show the harm to him outweighed the public interest of the article. Justice Thomson’s ruling favored the defense. Though Justice Thomson stated that Marlan’s article “probably” paints Durkin as a thief, the case was dismissed on Feb. 7, 2022, and the defense was awarded a full indemnity. 

 “The Article is the product of much research and consultation with a variety of sources. Mr. Durkin was given every reasonable opportunity to participate in the investigation leading to the publication of the Article. I find that the motivation behind writing and publishing the Article was to provide an accurate and thoroughly investigated report on matters of public interest,” Thomson stated in court records.

Marlan said she was “relieved” when she heard the case was dismissed and that it was “a giant headache,” preparing all her source material for her affidavit.

During an interview with The Click, Josh Bloomenthal, who represented the Phillips’ in the original lawsuit, said that the case against Marlan was “laughable,” and his experiences with Durkin have been “almost consistently unpleasant.” 

Bloomenthal and Marlan both said they believed authorities should have properly investigated Durkin and his finances.

“Like what Mr. Durkin put together, which was papered, you know, and had sort of an air of reality to it in various different ways, even though it was ultimately totally fake. You know, it’s difficult for the [Royal Canadian Mounted Police] to find, I guess, according to them anyway, to find the resources and personnel to actually get to the bottom of it,” Bloomenthal said. 

Although the Phillips’ won their lawsuit, they received none of the damages. 

“So yes, at the end of the day, we had several million dollars in damages. And in a perfect world, you would have that order against, you know, a large corporation or a person of means where you could enforce it and satisfy the judgment. But in cases like this, we’re dealing with people who are what’s called ‘judgment proof.’ Basically, they don’t own anything,” said Bloomenthal.

The Phillips’ also failed to recover damages from Gregory.

Durkin could not be reached for comment.

“And he’s still publicly taking the position that everything that was said about him is wrong and inaccurate,” Bloomenthal said. 

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