Jordan v Alberta Law Enforcement Response Teams, 2013 ABQB 330

Court of Queen ’ s Bench of Alberta Citation: Jordan v Alberta Law Enforcement Response Teams, 2013 ABQB 330 Date: 20130604 Docket: 1201 05986 Registry: Calgary Between: Shawn Edward Jordan Plaintiff - and - Alberta Law Enforcement Response Teams Ltd, Tony Andrews, Tom McKenzie (Chief of Police), Ted Miles, Ryan Jackson, Diane Colley-Urquhart, Lorne Armstrong, Arlene Yakeley, Donald Johnson, Wayne Ayling and Bill Meade Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] The Plaintiff Shawn Jordan ( “ Jordan ” ) commenced an action on May 11, 2012, by way of a statement of claim (the “ SOC ” ). In the SOC, Jordan alleges that the Defendants, or one or more of them, have defamed him or acted with misfeasance in their

exercise of public office duties. As a result, he claims $5,700,000 in general damages, aggravated damages, interest and costs. [ 2 ] The Defendants bring this application to this Court by way of a special chambers application. In it, they seek

summary judgment dismissing Jordan ’ s claim or, alternatively, striking the SOC. II. Background [ 3 ] Jordan and DJ were in a romantic relationship from about January 2000, to the summer of 2003. They have two children together. [ 4 ] DJ entered into a common law relationship with KB in the fall of 2004. At the time, both DJ and KB were employed as Royal Canadian Mounted Police officers. [ 5 ] In December 2008, Cst Aimee Cowley ( “ Cst Cowley ” ) of the Domestic Conflict Unit, Major Crimes

Section of the Calgary Police Service ( “ CPS ” ), was assigned to monitor "domestic subjects" Jordan and DJ in relation to criminal harassment allegations. [ 6 ] On March 18, 2010, Jordan drafted and sent an email to the Alberta Premier, the Alberta Ministry of Justice, and certain representatives of the Alberta Maintenance Enforcement Program ( “ MEP ” ), with the subject line "MEP / DEAD BEAT PARENTS / SUICIDE WATCH" (the “ Email ” ). The Email reads, in part: We also covered how when MEP makes unrealistic and impossible demands it will begin to cause SUICIDES!

Including MURDER SUICIDES! … If you don't fix MEP's common sense, when it comes to arrangements you are going to have become the 3 people who are DIRECTLY RESPONSIBLE FOR THE SUICIDES and the legacy of costs, of death by MEP in the Province of Alberta! … Contra Preferendum [ sic ] is a simple solution. Much less expensive and painful for children and families than coming home to a DEAD MOMMY OR DADDY … [ 7 ] On or about March 30, 2010, Cst Cowley received a copy of the Email. After speaking to Crown Prosecutor Margot Engley, Cst Cowley was advised to proceed with a criminal harassment charge against Jordan.

On April 12, 2010, DJ requested that the Alberta Law Enforcement Response Teams Ltd ( “ ALERT ” ) conduct a threat assessment as against Jordan. [ 8 ] On or about April 15, 2010, the Plaintiff sent the Email to DJ. [ 9 ] On April 19, 2010, Cst Cowley requested the Integrated Threat and Risk Assessment Centre ( “ I-TRAC ” ) to undertake a threat assessment in relation to the complaint of criminal harassment, which DJ had launched in relation to Jordan.

It should be noted that Jordan had not been charged with anything at this time. [ 10 ] Sgt Tony Andrews ( “ Sgt Andrews ” ) reviewed the materials that Cst Cowley had submitted, and, based on the information that he received, prepared a Domestic Violence Threat Assessment and Case Management Plan (the “ Report ” ). Sgt Andrews prefaced the Report with the caution that “ the accuracy of the threat assessment is dependent upon the completeness and reliability of information submitted for assessment. ”

[ 11 ] Sgt Andrews sent the Report to Cst Cowley and to Cst Cowley ’ s superior, Staff Sgt Patty McCallum ( “ Sgt McCallum ” ), both of the Domestic Conflict Unit, Major Crimes

Section of the CPS, and to I-TRAC management. He did not provide a copy of the Report to anyone else. [ 12 ] On April 22, 2010, Jordan was charged with criminal harassment under Criminal Code s. 264(2)(d). [ 13 ] On May 12, 2010, Sgt Andrews received a History Evaluation Assessment Tool assessment report from Cst Cowley. [ 14 ] The allegations that Jordan makes in his action relate to statements about him in the Report. The Plaintiff first saw a copy of the Report in January 2012.

It was part of the records that the City of Calgary produced in two actions that Jordan has brought against the City, separate from the within action. [ 15 ] Jordan has commenced 7 other actions against various individuals and organizations, including Nation J. These actions all arise out of the same primary facts, viz , the circulation of the Email, the creation and distribution of the Report, the criminal harassment charges that were brought against him, and Nation J's Order in family court as a result of the Email. IV.

Issues [ 16 ] It is not the responsibility of this Court to weigh the evidence, at this stage. The role of this Court is to determine whether it should grant

summary judgment dismissing Jordan ’ s case pursuant to the Alberta Rules of Court , Alta Reg 124/2010 ( “ Rules ), r 7.3(1) (b), or whether it should strike Jordan ’ s claim as being an abuse of process pursuant to Rule r 3.68. [ 17 ] Of course, this Court must examine the evidence that is before it to determine whether the Defendants have met their onus. However, at this stage, a full analysis of the evidence is not possible. Nor is it required. V.

Discussion ALERT and I-TRAC Background [ 18 ] To understand how this matter unfolded, it is important to understand the reasons why ALERT and I-TRAC exist, and their respective roles in the justice system. [ 19 ] The Government of Alberta established ALERT in 2006. ALERT is an organization of integrated police units that was designed to disrupt and dismantle serious and organized crime across in Alberta. Individuals make up “ teams ” within ALERT. I-TRAC is one of those teams.

I-TRAC integrates of members municipal police, the Royal Canadian Mounted Police and sheriffs, as well as Crown prosecutors, child protection experts, family law experts, and consulting psychologists and psychiatrists who provide intelligence, enforcement, and support services. [ 20 ] I-TRAC ’ s purpose is best described through its website <http://www.alert- ab.ca/itrac> , ( “ Website ” ) which says: Mission Statement I-TRAC provides an informed, non-prejudicial opinion on risk and risk management in the service of protecting victims and the prevention of violence.

Vision Statement "Prevention of violence through research, education and practice" About Us I-TRAC is a joint forces multi-disciplined unit that provides law enforcement and other criminal justice agencies with threat assessment services and proactive approaches to reduce acts of targeted violence within their communities. I-TRAC services include: assessing on the level of risk an individual may pose to commit

an act of targeted violence, providing case management strategies, training, safety planning, and expert testimony, and facilitating access to external agencies including mental health, specialized law enforcement and other criminal justice units. I-TRAC, formerly the Alberta Threat Assessment and Management Initiative (ARTAMI), was established by the Alberta Government in 2007 to expand its threat assessment capability and capacity. ARTAMI was originally created to address threats posed in violent, high-risk relationships and stalking situations - including homicide and suicide.

Domestic violence, criminal harassment and stalking remain I-TRAC's primary focus; however, I-TRAC has expanded its mandate by responding to various threats and acts of targeted violence, including workplace violence, school violence and sexual violence. [ 21 ] Among other things, I-TRAC assesses threats and develops risk reduction plans and threat assessments for the matters within its mandate. [ 22 ] Police services, Crown prosecutors, Correctional Service, or Children and Youth Services are the sources from which I- TRAC receives its projects.

In the Affidavit that he swore on November 28, 2012 (the “ Andrews Affidavit ” ), Sgt Andrews deposed at para 9, Exhibit A at 1, that the source must provide I-TRAC with all of the pertinent information related to its investigation, including: (

a) Copies of all occurrence reports relating to the investigation. This includes all current investigation reports and all related reports about the parties involved. (

b) All checks relating to both the accused and complainant, such as information obtained from the Canadian Police Information Centre, the Police Information Retrieval System, the National Crime Data Bank and others. (

c) Copies of any statements that the accused or the complainant have provided. (

d) Relationship status between complainant and accused, including employment of all parties, names, ages and sex of children, and custody/access information. (

e) Completed copy of the Family Violence Investigative Report form ( “ FVIR ” ). (

f) Completed copy of the History Evaluation Assessment Tool ( “ HEAT ” ). [ 23 ] The Website also states that to ensure the objectivity and integrity of the threat assessment process, I-TRAC is not a first response unit. It does not conduct primary investigations, and it does not meet with offenders, victims, or witnesses. [ 24 ] Once I-TRAC completes its threat assessment, it may distribute the threat assessment only to the requesting police service, Crown prosecutor, Child and Youth Services, probation officer, or parole officer. Exhibit A to the Andrews Affidavit, is a

summary of

the I-TRAC mandate and says that “ The safety of victims and children is paramount; therefore, the case management plans are not ... disclosed beyond these named parties. ”

Summary Judgment: Rules r 7.3(1)(b) [ 25 ] Rules r 7.3(1)(

b) provides: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: ... (

b) there is no merit to a claim or part of it; [ 26 ] In Murphy Oil Co v Predator Corp. , 2006 ABCA 69 , 384 AR 251 [ Murphy Oil ] , the Alberta Court of Appeal summarized the principles that will guide this Court ’ s analysis of this issue. It said at para 27 [citations excluded]: 1. A party bringing a motion for

summary judgment bears the legal onus of showing no genuine issue for trial. 2. There is no onus on the responding party to prove a genuine issue for trial. 3. If the applicant for

summary judgment discharges his/her onus on the material filed, a respondent who does not resist the application through admissible evidence risks judgment against him/her. That is an evidentiary burden. 4. There is no obligation on the respondent to file material. He/she can accept the risk described above. If the applicant fails to discharge his/her legal onus, the application will fail. 5. More commonly a respondent will provide admissible evidence opposing the motion.

In that event, the court will consider all the evidence to determine whether the applicant has shown that there is no genuine issue for trial. [ 27 ] As mentioned earlier, this Court must examine the evidence that is before it to determine whether the Defendants have met their onus to meet the tests that the Rules require. In Canada (Attorney General) v Lameman , 2008 SCC 14 , [2008] 1 SCR 372 [ Lameman ] , the Supreme Court of Canada said at para 10: A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion for

summary judgment must be judged on the basis of the pleadings and the materials actually before the judge, not on suppositions about what might be pleaded or proved in the future. [ 28 ] As well, if the respondent makes mere allegations of fact or raises suspicions without any supporting evidence, this is not enough to show that there is a genuine issue to be tried: Holmes v Bank of Nova Scotia Trust Co , 2006 ABQB 43 , 2006 CarswellAlta 68 at para 26 [ Holmes ] ; Dasilva v McLean , 2011 ABQB 618 , 527 AR 307 at para 19 [ Dasilva ] .

Said differently, by making mere allegations of fact or raising suspicions without any supporting evidence, the respondent will not have met its evidentiary burden. [ 29 ] Jordan argues that the onus is on the Defendants to prove that the statements in issue are not defamatory. That is not law. The

Defendants must show this Court that there is no genuine issue to be tried. Jordan must then provide this Court with admissible evidence to show this Court that on a balance of probabilities there is a genuine issue to be tried.

In this case, he must show on a balance of probabilities that there is a genuine issue as to whether the Defendants have defamed him. [ 30 ] In Grant v Torstar Corp , 2009 SCC 61 , [2009] 3 SCR 640 [ Grant ] , the Supreme Court of Canada at para 28 set out the three elements a plaintiff must prove to have a court find that the plaintiff was defamed: 1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; 2. that the words in fact referred to the plaintiff; and 3. that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

It is only after the plaintiff has met its onus that “ the onus then shifts to the defendant to advance a defence in order to escape liability ” : Grant at para 29 . [ 31 ] Thus, there are various shifting onuses that are before this Court in this case, being: • the Defendants bear the legal onus of showing no genuine issue for trial • Jordan has an evidentiary burden to provide this Court with admissible evidence to show that there is a genuine issue for trial • if Jordan provides such evidence, the Defendants may provide this Court with admissible evidence to show that they have a defence to Jordan ’ s action • if Jordan meets his evidentiary burden, it is this Court ’ s responsibility to consider all the evidence before it to determine whether the Defendants have shown that there is no genuine issue for trial. [ 32 ] In the SOC, Jordan has provided a list of 16 allegedly defamatory statements.

Many of the statements are the result of analysis, and the recommendations based on that analysis. Those statements are not defamatory. As well, many of the statements clearly relate to the Email. Jordan argues that he sent the Email to MEP because of his frustration with having MEP attempt to collect money from him. He, however, authored the Email. Any analysis and recommendations that arise, even in part, from the Email cannot be defamatory.

Jordan authored the Email that refers to “ MURDER SUICIDES. ” He cannot possibly complain if law enforcement takes those types of phrases seriously, especially in the view of the frequency of those events. [ 33 ] It is worthwhile for this Court to consider the reason for, and the way in which, the Report was presented to the other law enforcement agencies.

The reason for this analysis is that even if Jordan can prove on a balance of probabilities that the alleged statements are defamatory, an issue on which this Court has yet to rule, the defamation might fall within an exception that would preclude the Defendants ’ liability: Grant at para 29 . Of course, Jordan can attempt to prove the exception does not apply in this case. [ 34 ] One such exception is that of privilege. In Grant at para 30 , the Supreme Court of Canada said: Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made.

Some "occasions", like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or credit

reports, enjoy "qualified" privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice ... Thedefences of absolute and qualified privilege reflect the fact that "common convenience and welfare of society" sometimes requiresuntrammelled communications ...The law acknowledges through recognition of privileged occasions that false and defamatoryexpression may sometimes contribute to desirable social ends. [Citations excluded]. [35] What are the “occasions” to which the Supreme Court of Canada referred?

In Adam v Ward, [1917] AC 309 (HL) [Adam],Lord Atkinson said at 334: … a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social or moral,to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. Thisreciprocity is essential.

See also Botiuk v Toronto Free Press Publications Ltd, (SCC), [1995] 3 SCR 3 at para 78 [Botiuk]; Hill v Church ofScientology of Toronto, (SCC), [1995] 2 SCR 1130 at para 143. [36] The Alberta Court of Appeal said in Prefontaine v Veale, 2003 ABCA 367, 339 AR 340 [Prefontaine] that public officialsmight have to communicate with other public officials and persons outside their offices in performance of their duties. In those cases, thecommunications are privileged: Prefontaine at para 21.

If the public official makes the communication to a non-public official, it is stillclothed with privilege, provided the public official makes the communication in good faith: Prefontaine at para 22. It went on to providethe example of a police officer being protected by privilege when the officer makes statements to appropriate parties during the course ofan investigation: ibid. The Alberta Court of Appeal went on to say that “[i]t is the very essence of a police officer's function to investigatecrimes”: Prefontaine at para 20. See also Chopra v T Eaton Co (1999), 1999 ABQB 201 , 240 AR 201 (QB) at para 209.

Thisis so even if it is later shown that the accused was not guilty of the alleged crime after all: Brule v Chmilar, 2000 ABQB 9, 256 AR 168at paras 61-62. [37] If the defendant establishes a qualified privilege, the defendant is presumed to be acting in good faith and is "free to publish,with impunity, remarks which may be defamatory and untrue about the plaintiff": Hill at para 44.

The defendant, however, must exercisecaution even in the face of this presumption, as it might lose its ability to rely on its privilege if it made the statement maliciously: Grantat para 30; Botiuk at paras 79-80. [38] In this case, Cst Cowley requested I-TRAC to provide the Report as part of an investigation into the alleged criminalharassment that Jordan was committing against DJ. Cst Cowley’s concerns were reinforced by the Email.

According to I-TRAC'smandate, Sgt Andrews had a duty to prepare the Report, and to provide a completed copy to the requesting police officers, Cst Cowleyand Sgt McCallum, who had a corresponding duty to receive it. All those involved, being the Report’s author, Sgt Andrews, and theReport’s recipients, Cst Cowley and Sgt McCallum, are police officers who were performing their public duty to investigate suspectedcrimes.

Under these circumstances, the Report is protected by qualified privilege. [39] Even if the officers were not investigating the alleged criminal harassment complaint, they would still have a duty toinvestigate Jordan in the view of the Email, inasmuch as I-TRAC’s predecessor’s mandate, which remains a mandate of I-TRAC is to“address threats posed in violent, high-risk relationships and stalking situations - including homicide and suicide.” One could go so far asto say that the police officers and I-TRAC would be negligent in their duty if they did not investigate such situations. [40] In the SOC, Jordan refers to the Email as being “polemic” and says the following: a.

The discourse was well within the spirit of the law, in Canada, which specifically protects: i. Legitimate criticism of government policies including the pointing out of a rise of concern which may produce, or tend to produce,feelings of hostility or ill-will amongst members of Her Majesty’s citizenry and the various ranks of classes of persons who areemployed as civil servants.

SOC, para 15. From this Court’s perspective, Jordan might have intended the Email to be polemic. If, for example, his position were presented in theAlberta Legislature by a politician who had no direct vested interest in the topic, but was merely criticizing a government stance, onecould say that even though the comments are insensitive (without statistical validation), they are polemical. In this case, however, we aredealing with an individual, Jordan, who is directly involved in the various issues that he raises in the Email. In this Court’s view, thismoves the Email from the polemic to a potential threat.

MEP, Cst Cowley and Sgt McCallum had every right, and a duty, to take theEmail seriously, and refer the matter to I-TRAC. [41] The next question is whether I-TRAC loses its ability to rely on privilege as a result of malice.

Lutz J described malice inAmalgamated Transit Union v Independent Canadian Transit Union, (AB KB), [1997] 5 WWR 662, 49 Alta LR(3d) 1 (QB) [ATU] in the following manner at paras 71-73: I accept that where a defendant establishes the defence of fair comment, or establishes that a defamatory comment was published on aprivileged occasion, the burden is on the plaintiff to show that the statement was made with actual or express malice (Brown, The Law ofDefamation In Canada, p. 948): Malice may be shown either from the nature, character and relevance of the words used or from evidence as to the behaviour, motive andknowledge of the defendant when publishing them, or in defending the action, or in failing to take appropriate steps in correcting,retracting or apologizing for the defamatory remarks. (Brown, The Law of Defamation in Canada, (Calgary: Carswell, 1987) p. 918).

I note that while the burden of proving malice is normally on the plaintiff, in certain circumstances "the affirmative evidence of malicemay be sufficiently cogent to require the Defendant to answer it or stand condemned" ... There are a number of factors that can indicate the presence of malice. For example, malice can be found where the published statementsare false, and are known to be false by the Defendant. In addition, the conduct of the parties, or the manner of use of the words canindicate the presence of malice ...

In addition, "[m]alice may be shown by the constant repetition of the same or similar remarks ...

Theevidence is admissible even though the subsequent words may be independently actionable" (Brown, The Law of Defamation in Canada,p. 946-7). [Case citations excluded]. [42] Jordan argues that “the defamatory words ... stem from a group of police persons who took the law into their own hands andran amok with it, to the detriment of the Plaintiff.” He goes on to argue that Sgt Andrews “did not have enough knowledge to be able toauthor [the Report] ...” and that within the Report there is repetition of “the most atrocious kind,” used “to prop up a criminal charge thathad no tangible inculpatory evidence to support its validity.” [43] Lutz J in ATU went on to summarize the law in relation to malice at paras 74-76, when he said: The Plaintiffs rely heavily on Brown's text The Law of Defamation in Canada in their argument, and I reproduce some of the helpfulsections below.

According to Brown, the evidence necessary to establish malice may be either intrinsic or extrinsic. He looks first at theintrinsic evidence of malice: Malice may 'be inferred from the terms of the defamatory statements themselves.' Thus, the court will look to the 'mode and style' of thepublication, or the language which the defendant 'has chosen to couch the communication,' to see if there is unnecessary violence ofexpression or intemperance in language.

Words exhibiting an 'unwholesome virulence' or exaggeration, or which are 'couched in termsstronger than necessary to gain the object in view', or are 'entirely disproportionate to', or 'beyond the absolute exigence' of, or utterlybeyond and disproportionate to, the facts or circumstances of the occasion, may give rise to an inference of malice. This is particularlytrue where the violence or intemperance is the product of deliberation. However, violent language may be more expectable wheresomeone is responding to a personal attack.

For that reason, it may be inappropriate to find malice merely in the way in which thedefendant has framed his response. (Brown, The Law of Defamation in Canada, pp. 948-9) [Emphasis added.]

He then turns his mind to the extrinsic evidence of malice. In proving actual malice it is appropriate for the plaintiff 'to interrogate as to the steps or precautions taken, the inquiries made, and the information obtained by the defendant before publication.' Evidence of malice may be found in the conduct of the defendant throughout the course of events, both before and after the publication of the defamatory remarks, including the course of the judicial proceedings (pp. 950-1). The motives of the Defendant are relevant.

The court will receive evidence of any spite or ill-will on the part of the defendant which may have motivated him to speak and from which malice may be inferred. Therefore, the intent with which the defendant published the defamatory statement is relevant on the issue of malice. The court will search for evidence of personal animosity, threats, rivalry, or squabbles, hostility or bitterness between the parties. It is relevant to inquire whether or not the defendant had previously waged a personal vendetta against the plaintiff, or harboured ill feeling or a grudge against him.

Evidence that the defendant belonged to a dissenting group within an organization to which the plaintiff belonged, engaged in any prior altercations, quarrels or litigation with him, acted out of irritation, or previously exchanged heated or defamatory words, is also relevant to the issue of malice. Thus malice may be found in evidence that the defendant had systematically libelled the plaintiff over a period of several years ... (pp. 951-2).

By the same token, the defendant may introduce evidence that he and the plaintiff were never previously acquainted, or that they knew each other for only a short period of time, in order to show that he could not have harboured any personal animosity against the plaintiff or that he did not act maliciously .... He may also show lack of malice by evidence demonstrating that the plaintiff was treated no differently by the defendant from other persons in the same position (p. 952). The Defendant must have known the words were false, have not believed in their truth, or have been reckless as to their truth.

To prove malice it is not sufficient merely to show that the words are false and defamatory. The plaintiff must go further and introduce evidence that the words were false to the knowledge of the defendant at the time he published them, or that the defendant did not believe they were true, or that be recklessly published that which was untrue, or had absolutely no foundation for his charge .... (pp. 952-3). "Malice may also be shown if there is evidence that the Defendant acted out of 'gross and unreasoning prejudice', vindictiveness, intemperance, or in the heat of unreasoning anger" (p. 953).

Repetition of defamatory remarks is another relevant factor. Malice may be shown by evidence that the Defendant had previously published the same defamatory remarks, or had repeated or recirculated the defamatory charges after the original publication, or had asserted that the charges were true, or that the defendant encouraged needless publication by others, or had continuously alluded to the trial of the action for defamation and attacked the plaintiff. Thus it has been said that 'however late anything takes place, it may be evidence of a previous intention as to a previous fact.' ...

Malice may be shown by evidence that the defendant unnecessarily published the defamatory information in the presence of persons who were not otherwise entitled to receive the information .... (pp. 953-5). [ 44 ] Sgt Andrews reviewed various written materials that he listed in the Report. The materials that he reviewed included those that he received from the CPS: Andrews Affidavit paras 9-10. He did not interview Jordan, DJ or DJ ’ s spouse: Andrews Affidavit para 11. [ 45 ] The Andrews Affidavit para 13 is important for this Court ’ s analysis. It says:

There is no basis for any suggestion of any wrongdoing, intentional or otherwise, on my part or the part of the I-TRAC in connection with the preparation of the [Report]. As I note in the [Report], “ the accuracy of the threat assessment is dependent upon the completeness and reliability of information submitted for assessment ” . In preparing the [Report], I consistently note the source of the information presented. The [Report] was prepared for Constable Aimee Cowley to assist her with managing the case. [ 46 ] This statement is uncontradicted. For that reason, it carries some weight.

However, the court must be cautious when it relies on a self-serving statement. It must look to other information that might corroborate the statement of the affiant. When one looks at the methodology that I-TRAC uses when researching and preparing its threat assessment reports, however, it is very important to note that the author seeks to maintain integrity and objectivity when preparing the report. That is the reason why Sgt Andrews did not meet with the parties and prepared his report based on the written materials that he reviewed.

Part of his role is not to assess the credibility of the parties, or become embroiled in the issues among them. His role is to do a threat assessment based on the written history of the parties. [ 47 ] As an interesting aside, had DJ, a police officer, prepared the I-TRAC report, this Court could find malice, based on the factors outlined in ATU . However, it was Sgt Andrews, not DJ, who prepared the Report. [ 48 ] Sgt Andrews cautions the reader about the accuracy of the threat assessment and provides the source of his information. Sgt Andrews is not conducting an investigation.

He is providing an investigatory tool. It is up to those who are conducting investigations to determine the accuracy of, for example, statements that a complainant provides. That was the role of Cst Cowley, who, along with Sgt McCallum, requested the Report in the first place. We must remember that statements from complainants and other information, such as the FVIR, are based on information that complainants provide. Thus, it was not improper for Sgt Andrews to rely on such materials.

However, his caution that “ the accuracy of the threat assessment is dependent upon the completeness and reliability of information submitted for assessment ” required the investigating officers to confirm the completeness and reliability of that information. That is their role. [ 49 ] When one looks at the alleged defamatory statements, many are conclusions and recommendations that Sgt Andrews reaches. These conclusions and recommendations are based on multidisciplinary studies that analyze behaviours that the subject exhibits. [ 50 ] Sgt Andrews did not have a “ vested interest ” in this matter.

He had not interviewed the parties. Nor was he involved in any investigation involving them. The statements he made in the Report were not false to his mind, as they were based on the materials he reviewed. As well, it appears that the Report was balanced in the sense that it stated that Jordan presents as being a low risk for future violence against DJ. Had there been any malice, he could certainly, based on some of the other factors, said that Jordan presented as being a high risk in this regard. [ 51 ] There is no intrinsic evidence of malice.

The words that Sgt Andrews used do not fall within any of the stylistic descriptors that Lutz J used in ATU . For example, Jordan complains that the following is defamatory: As mentioned earlier in this report, Jordan is reported to be employed as a security guard at SAIT. Jordan argues that this statement is “ defamatory and untenable ” as “ it triggers innuendo into the mind of the reader to effect that the Plaintiff works at or is interested in military-esque, or dangerous, activities. ” Frankly, this Court sees no such innuendo with respect to the brave men and women who act as security guards.

Nonetheless, this statement does not exhibit malice. It simply states a fact that was reported to Sgt Andrews; nothing more. [ 52 ] There is no evidence before this Court that exhibits any extrinsic malice. Sgt Andrews gathered information, reviewed it and presented the Report. He provided an appropriate caution to the reader concerning the accuracy of the statements he makes in the Report.

Furthermore, there is no evidence before this Court that Sgt Andrews had any history with Jordan including any “ personal animosity, threats, rivalry, or squabbles, hostility or bitterness between the parties. ” Sgt Andrews had never even met the parties. This Court finds that Sgt Andrews ’ motives for preparing the Report were salutary.

[ 53 ] There is no evidence that Sgt Andrews had previously published the same allegedly defamatory remarks or had repeated or recirculated them. He simply completed the Report and provided it to Cst Cowley. [ 54 ] This Court finds that Sgt Andrews acted with no malice when he prepared and released the Report. [ 55 ] In Hill at para 146 , the Supreme Court of Canada, quoting Adam at 320-21, said: Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.

If this were the case, the Supreme Court of Canada said, “ the limits of the duty or interest have been exceeded ” : ibid . [ 56 ] We must remember that it is Jordan who must prove on a balance of probabilities that Sgt Andrews has exceeded the limits of his duty or interest. Jordan has not provided this Court with evidence that the contents of the Report are irrelevant to Sgt Andrews' duty to provide an independent threat assessment.

In fact, based on the evidence that is before this Court, it finds that Sgt Andrews had a duty to prepare the Report and the content of the Report is relevant and pertinent to that duty. [ 57 ] Sgt Andrews did not widely disseminate the Report and provided it only to the persons who requested it, viz , Cst Cowley and Sgt McCallum, each of whom had a duty to receive it: Adam at 334. This was a “ limited audience ” : Chohan v Cadsky , 2009 ABCA 334 at para 108 ; 464 AR 57.

As mentioned earlier, had Sgt Andrews not prepared the Report on Cst Cowley ’ s request that he prepare it, Sgt Andrews might be found to be derelict in his duties as a police officer and, in particular, his duties as a member of the I-TRAC team. [ 58 ] The CPS subsequently provided the Report to the Crown and relied on it the prosecution of Jordan ’ s criminal harassment charges (as the Jordan alleges). That communication is protected by absolute privilege.

Absolute privilege attaches to "communications which take place during, incidental to, and in the processing and furtherance of judicial or quasi-judicial proceedings": Prefontaine at para 10 . During the Defendants ’ questioning of Jordan, the following exchange took place: Q And you have no information as you sit here today; you may get it, but you have no information, as you sit here today, that [KB or DJ] have ever seen a copy of the [Report]? A Yeah. No, I don ’ t know that for certain.

Transcript of questioning of Jordan, October 10, 2012, p 509, ll 13-17 [ 59 ] Based on the foregoing discussion, this Court finds that the alleged statements that Jordan submits are defamatory are not defamatory at all. They do not “ lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule ” : Botiuk at para 62 . Even if this Court found that the statements in the Report were defamatory, they are protected by qualified privilege and absolute privilege.

In the case of the qualified privilege, Jordan has not met his evidentiary burden of showing that Sgt Andrews prepared the Report maliciously, or used words that show malice. As well, Sgt Andrews did not exceed the limits of his duty. [ 60 ] Accordingly, the Defendants have met their onus of showing no genuine issue for trial and Jordan has not met his evidentiary burden to provide this Court with admissible evidence to show that there is a genuine issue for trial.

On that basis, this Court grants the Defendants ’ application dismissing Jordan ’ s claim. [ 61 ] Although this deals with the matter, this Court feels duty-bound to comment on other arguments that Jordan has made concerning this matter. He pleads misfeasance in public office on Sgt Andrews ’ part. Although the SOC goes on at length concerning Sgt

Andrews role in the alleged defamation, Jordan’s claim concerning Sgt Andrews’ alleged misfeasance is best encapsulated in SOC para43, where it says: Moreover, as a result of the defamation and negligence by Andrews being conflated with his deliberate and excessive misuse of power,office, and authority, the Plaintiff has been greatly injured in his character, credit and reputation in the community, and has been held upto public scandal, ridicule, and contempt. [62] Misfeasance in public office was recognized in Roncarelli v Duplessis, (SCC), [1959] SCR 121.

Therelatively recent Supreme Court of Canada case of Odjavji Estate v Woodhouse, 2003 CarswellOnt 4851, 2003 SCC 69, [2003] SCR 263[Odhavji, cited to CarswellOnt] provides us with a roadmap on how courts must analyze cases involving the alleged tort of misfeasancein public office. The Supreme Court of Canada held that the tort can arise in one of two ways, which it referred to as “Categories.” It saidat para 22: Category A involves conduct that is specifically intended to injure a person or class or persons.

Category B involves a public officer whoacts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. [63] The court went on to say that in either case, the plaintiff must prove each of the tort’s constituent elements: ibid. It explainsthose elements in para 23, as follows: First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, thepublic officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff.

Whatdistinguishes one form of misfeasance in a public office from the other is the manner in which the plaintiff proves each ingredient of thetort. In Category B, the plaintiff must prove the two ingredients of the tort independently of one another. In Category A, the fact that thepublic officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to thefact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming amember of the public.

In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconductis likely to injure the plaintiff. [Emphasis added]. [64] Misfeasance in public office is an intentional tort. The misconduct must be deliberate in the sense that it consists of anintentional illegal act, and an intent to harm an individual or class of individuals: Odhavji at para 25.

As well, the public official must beaware that their conduct is unlawful, which requires an element of bad faith or dishonesty: Odhavji at para 28. [65] As mentioned earlier, the actions that Sgt Andrew undertook were in compliance with his duties. He received a request fromCst Cowley, collected information, and prepared the Report using the protocols that had been established for him to maintain objectivityin his preparation of the Report. The fact that the Repot concerned Jordan as the subject might be adverse to Jordan, but is not enough tofind that Sgt Andrew committed misfeasance.

As the Supreme Court of Canada said in Odhavji at para 28: In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certaincitizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. [66] There is no evidence before this Court to show that there is a genuine issue for trial on the basis of a misfeasance of publicoffice.

Striking the Claim: Rules r 3.68 [67] Finally, the Defendants have argued an alternative basis on which this Court might consider dealing with the matter before it.They ask this Court to strike Jordan’s claim pursuant to Rules r 3.68, on the basis that Jordan’s claim is vexatious. Inasmuch as this Courthas granted the Defendant’s application for

summary judgment dismissing Jordan’s claim, it see no useful purpose in addressing thisissue in any great detail. As well, Jordan did not present this Court with argument concerning this alternative form of relief that theDefendants seek. Because the Defendants raised it, however, this Court feels duty-bound to address it.

[ 68 ] As mentioned earlier, Jordan has commenced 7 other actions against various individuals and organizations, including Nation J. These actions all arise out of the same primary facts, although additional facts have arisen along the way, viz , the circulation of the Email, the creation and distribution of the Report, the criminal harassment charges that were brought against him, and Nation J's Order in family court as a result of the Email.

The way in which Jordan has approached these matters by alleging malice on the part of peace officers and defamation is very similar to the approach that Greg McMeekin took in the matters that Shelley J and Marceau J heard. In McMeekin v Alberta (Attorney General) , 2012 ABQB 456 , Shelley granted

summary judgment dismissing McMeekin ’ s claim, finding that the alleged defamatory statements were protected by absolute privilege and that the evidence before her did not support the plaintiff ’ s allegations of malicious prosecution. McMeekin also sued various lawyers and others who were involved in the action.

In McMeekin v Alberta (Attorney General) , 2012 ABQB 144 , Marceau J struck McMeekin ’ s statement of claim as being frivolous and vexatious, and as disclosing no reasonable cause of action. [ 69 ] This Court adopts and applies the reasoning that Shelley and Marceau JJ took when they were analyzing McMeekin ’ s approach to the matters before them. Jordan has taken a similar, if not the same, approach. Accordingly, although this Court has granted

summary judgment dismissing his claim, it would also strike his claim pursuant to Rules r 3.68. VI. Conclusion [ 70 ] For the foregoing reasons, this Court grants

summary judgment in favour of the Defendants dismissing Jordan ’ s claim in its entirety or, alternatively, striking his claim. Heard on the 24 th day of April, 2013. Dated at the City of Calgary, Alberta this 4 th day of June, 2013. K. D. Yamauchi J.C.Q.B.A. Appearances: Shawn Edward Jordan Self-represented person Louise Novinger Grant Burnet, Duckworth & Palmer LLP for the Defendants/Applicants