Elkow v Sana, 2015 ABQB 803

Court of Queen ’ s Bench of Alberta Citation: Elkow v Sana, 2015 ABQB 803 Date: 20151221 Docket: 0503 13601 Registry: Edmonton Between: Laurie Diane Elkow Plaintiff - and - Najmeya Sana, a.k.a. Najmeya Sana Siddiqi, a.k.a. Najmeya Siddiqi Sana and Arif Sana a.k.a. Zaeem Arif Siddiqi a.k.a. Arif Siddiqi Defendants Corrected judgment: A corrigendum was issued on April 29, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment: A corrigendum was issued on January 22, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________

Table of Contents 1. Introduction . 3 2. Background . 4 3. The Parties’ Positions . 6 4. Procedural History . 8 5. Arguments . 9 A. Ms. Elkow .. 9 B. Ms. Sana . 10 6. Analysis on

Summary Judgment 11 7. Analysis of the Evidence . 14 8. Defences . 15 A. Defamatory Meaning . 16 B. Fair Comment 16 C. Qualified Privilege . 19 D. Malice . 20 E. Responsible Communication . 23 F. Defamation in the context of Education . 23 9. Analysis of Malice . 25 10. Analysis of Impugned Statements . 25 A. Letter by Ms. Sana to Mr. McBeath dated May 6, 2004 . 26 B. Statements at a meeting among Ms. Sana, Ms. Elkow, Kevin Stevenson, a principal in EPS’s Leadership Services department and Joanne Keeler, Ms. Elkow’s administrative assistant, on May 20, 2004 26 C. Letter by Ms. Sana to Mr.

McBeath dated May 28, 2004 . 27 D. Statements made by Ms. Sana to other parents of children at Jackson Heights School on May 28, 2004 27 E. Letter by Ms. Sana to Mr. McBeath dated June 3, 2004 . 27 F. Email dated June 22, 2004 sent by Ms. Sana to Mr. McBeath, copied to Svend Hansen, Chairman of the EPS Board of Trustees and to Jamie Pallett, an administrator in the Leadership Services department 30 G. Letter dated June 24, 2004 from Ms. Sana to Ms. Elkow, copied to Mr. McBeath and the Trustees of the EPS . 31 H. Statements made to a mediator, Sharon Wilson, at a meditation between Ms. Sana and Ms.

Elkow on September 10, 2004 . 31 I. Sign taped onto Ms. Sana’s van which had been parked near the School on September 15, 2004 31 J. Statements made by Ms. Sana to parents and passers-by on September 15, 2004 while in or by the van near the School 32 K. Leaflets distributed in the neighbourhood surrounding the School on September 16 and 17, 2004 (and many days following) 33 L. Letter dated September 17, 2004 from Ms. Sana to MLA Gene Zwozdesky, Minster of Learning 34 M. Statements at the Law Courts on May 26, 2005 by Ms. Sana to passers-by concerning the trial that day 34 N. Statements to parents by Ms.

Sana on May 30, 2005 . 34 O. Letter dated May 31, 2005 from Ms. Sana to Mr. McBeath and Mr. Stevenson and the School, also distributed to teachers at the School 34

P. Letter dated June 17, 2005 from Ms. Sana to Mr. McBeath . 34 Q. Letter dated June 23, 2005 from Ms. Sana to Deborah MacDormand, a teacher at the School 35 R. Letter dated June 24, 2005 from Ms. Sana to Ms. Elkow, copied to Mr. McBeath, Mr. Stevenson and the Minister of Education . 35 11. Conclusion . 35 12. Damages . 36 13. Security and Procedural Orders . 37 14. Action Against Arif Sana . 38 1. Introduction [ 1 ] This is an application for

summary judgment on the Plaintiff’s defamation claim against the Defendant Najmeya Sana. In the alternative, the Plaintiff seeks security for costs and a procedural order relating to the completion of questioning. [ 2 ] The Defendants oppose this application. The Defendant, Arif Sana, seeks

summary dismissal of the claim against him, although he has not specifically applied for this relief. 2. Background [ 3 ] At the relevant time, the Plaintiff, Laurie Diane Elkow, was the principal of Jackson Heights School (the “School”) in Edmonton. The Defendants are the parents of four children who attended the School. [ 4 ] The dispute between the Plaintiff and the Defendants appears to have started on April 21, 2004. The affidavit evidence from all parties indicates that until that time, there were no issues affecting their relationship. [ 5 ] On April 21, 2004, Mr.

Sana was involved in an argument with the parent of another child. The argument occurred while Mr. Sana was dropping the children off at school. He says he spoke to another parent whom he believed to have habitually held up traffic, causing his children to be late for school. [ 6 ] After the argument, the other parent met with Ms. Elkow. Her uncontradicted evidence is that the other parent asked her to call the police because of the incident. Ms. Elkow refused, telling the other parent that the incident had occurred off school property. In her affidavit of April 15, 2015, Ms.

Elkow deposed that she made no report of the incident to the police. [ 7 ] Ms. Elkow deposed that around noon that day, Mr. Sana approached her with concerns about the other parent, requesting that she contact the police about “racist comments” made to Ms. Sana (presumably by the other parent) and asking why Ms. Elkow had told the other parent to complain about him to the police. A memo prepared by Ms. Elkow at the time (April 21, 2004) describes Mr. Sana being angry with her [ 8 ] According to Mr. Sana’s affidavit of May 30, 2014 (filed July 23, 2015), he and Ms. Sana had been separated since the summer of 2002.

He denies any involvement in the dispute described in the pleadings, other than the traffic incident that occurred on April 21, 2004. [ 9 ] He states that at the time of the April 21, 2004 incident, he was living in British Columbia. He came back to Edmonton on a monthly basis to see his children, and while in Edmonton, he would drive them to school. [ 10 ] He deposed that he had a discussion with the other parent while dropping his children off at the School. He deposed that he told the other parent that “I would be speaking to the Edmonton Police Service” about the other parent’s behaviour. [ 11 ] Mr.

Sana did go to the police, and while there, the other parent arrived. He says “the parent told the officer that she had been sent to the police station by the Plaintiff”. [ 12 ] He described the meeting with Ms. Elkow and denies being angry or acting in a threatening manner. He acknowledges asking Ms. Elkow why she had sent the other parent to the police. [ 13 ] He denies any involvement in the events that followed. [ 14 ] Ms. Sana was apparently in the back seat of the vehicle and observed the argument between Mr. Sana and the other parent.

She provided a witness statement to the police concerning the events of that day. Her witness statement says “she (the other parent) said her friends and the principal told her to go to the police station.” [ 15 ] A further incident occurred in late April, 2004. According to Ms. Sana’s daughter (in a letter dated May 10, 2015 attached as an exhibit to Ms. Sana’s affidavit of July 24, 2015) she and her brothers had worn t-shirts to the School one day, but the weather changed. It was raining when they went outside to wait to be picked up after school, but they started feeling very cold.

She, as the eldest, moved them all inside the School, but they were told by two staff members (not Ms. Elkow) to go back outside “because the school carpet would become dirty”.

[ 16 ] According to the daughter, “this incident was some kind of message for my mother, from Elkow”. [ 17 ] Shortly after the “rain” incident, Ms. Sana says that her daughter had become upset because of an interaction between her daughter and Ms. Elkow during a math test. According to the daughter, Ms. Elkow interrupted her during the test, and spoke to her angrily in the hall asking her “why I had told my mother about Elkow treating us so strangely.” [ 18 ] On about April 29, 2004, Mr. Sana entered the school and went into his daughter’s classroom. There are differing versions between Mr. Sana and Ms.

Elkow about what happened; Ms. Elkow describing an angry altercation and Mr. Sana describing an innocuous attempt to have lunch with his daughter. [ 19 ] It is obvious that in the latter part of April, Mr. and Ms. Sana’s attitude towards Ms. Elkow and the school changed dramatically. On April 30, Ms. Sana confronted Ms. Elkow regarding the math test incident. A meeting between them on May 4 resulted in Ms. Sana leaving angrily. According to Ms. Elkow, Ms. Sana sad that “I will make my concerns public”, “I will see Mr.

McBeath (Superintendent of the Edmonton Public Schools) and ask him why he has such a principal in the school”, and “You are not a qualified principal and you will lose your job. I will make sure you are fired”. [ 20 ] Ms. Sana describes the meeting of May 4, 2004 differently. She deposed “the Plaintiff was agitated and yelled at me. The Plaintiff told me I wasted her time and that I was no longer allowed to come to the school”. [ 21 ] There is little dispute over the events that followed. [ 22 ] Ms. Sana began what can be fairly described as a campaign to have Ms. Elkow removed as principal of the School.

Her interactions with Ms. Elkow resulted in Ms. Sana being given a “Trespass Notice” under the School Act , RSA 2000, c S-3, on June 2, 2004 barring her from the School and the School grounds. [ 23 ] That bar was extended by Superintendent Angus McBeath on September 16, 2004 to include “any building owned or operated by Edmonton Public Schools” as a result of an incident at Edmonton Public Schools headquarters. [ 24 ] Ms. Sana was charged with trespass on September 15, 2004 arising out of her attendance at the School contrary to Ms. Elkow’s Trespass Notice, and she was convicted of that offence in May, 2005. 3.

The Parties’ Positions [ 25 ] Ms. Elkow’s allegations of defamation arise out of the following: 1. A letter by Ms. Sana to Mr. McBeath dated May 6, 2004; 2. Statements at a meeting among Ms. Sana, Ms. Elkow, Kevin Stevenson, a principal in EPS’s Leadership Services department and Joanne Keeler, Ms. Elkow’s administrative assistant, on May 20, 2004; 3. A letter by Ms. Sana to Mr. McBeath dated May 28, 2004; 4. Statements made by Ms. Sana to other parents of children at Jackson Heights School on May 28, 2004; 5. A letter by Ms. Sana to Mr. McBeath dated June 3, 2004; 6. An email dated June 22, 2004 sent by Ms.

Sana to Mr. McBeath, copied to Svend Hansen, Chairman of the EPS Board of Trustees and to Jamie Pallett, an administrator in the EPS Leadership Services department; 7. A letter dated June 24, 2004 from Ms. Sana to Ms. Elkow, copied to Mr. McBeath and the Trustees of the EPS; 8. Statements made to a mediator, Sharon Wilson, at a meditation between Ms. Sana and Ms. Elkow on September 10, 2004; 9. A sign taped onto Ms. Sana’s van which had been parked near the School on September 15, 2004; 10. Statements made by Ms. Sana to parents and passers-by on September 15, 2004 while in or by the van near the School; 11.

Leaflets distributed in the neighbourhood surrounding the School and elsewhere on September 16 and 17, 2004 (and many days following); 12. A letter dated September 17, 2004 from Ms. Sana to MLA Gene Zwozdesky, Minster of Learning; 13. Statements at the Law Courts on May 26, 2005 by Ms. Sana to passers-by concerning the trial that day; 14. Statements to parents by Ms. Sana on May 30, 2005; 15. A letter dated May 31, 2005 from Ms. Sana to Mr. McBeath and Mr. Stevenson and the School, also distributed to teachers at the School; 16. A letter dated June 17, 2005 from Ms. Sana to Mr. McBeath; 17.

A letter dated June 23, 2005 from Ms. Sana to Deborah MacDormand, a teacher at the School; 18. A letter dated June 24, 2005 from Ms. Sana to Ms. Elkow, copied to Mr. McBeath, Mr. Stevenson and the Minister of

Education; and 19. A letter dated June 30, 2005 from Mr. Sana to Mr. McBeath; [ 26 ] Following these events, Ms. Elkow issued a statement of claim against Mr. and Ms. Sana on August 8, 2005. [ 27 ] After the statement of claim had been issued and served, an “anonymous” leaflet dated August 24, 2005 was circulated in the neighbourhood surrounding the School and elsewhere. Ms. Elkow alleges that the anonymous letter was written by Ms. Sana, or for Ms.

Sana by her daughter. [ 28 ] That letter was delivered to Dynacare Kasper Medical Laboratories in the Tawa Centre, an adult living/seniors’ residence near the School and to private homes and businesses in neighbourhoods other than the one surrounding the School. [ 29 ] Ms. Sana complained about Ms. Elkow, Mr. McBeath and EPS to the Alberta Human Rights Commission on September 15, 2005. That complaint was dismissed by the Chief of the Commission on April 26, 2013. [ 30 ] Ms. Sana also complained about Ms. Elkow to the Alberta Teachers’ Association.

That complaint was dismissed on February 2, 2007. [ 31 ] Para 51 of the Amended Amended Statement of Claim (amended after August, 2005 to add further names for Mr.

Sana and allegations relating to the August 24, 2005 letter and its circulation) states: All the said words set out above in this Amended Amended Statement of Claim are and were defamatory of Elkow and intentionally and maliciously calculated to damage Elkow’s reputation by depicting her to her school staff, other parents, students, community members, the administration and Trustees of Edmonton Public Schools, and M.L.A., the Minister of Education, and the community at large as an incompetent, lying, ineffective, biased, racist, discriminatory, mentally disabled, dishonest, abusive, and criminal principal who wields power unfairly and is insensitive to children’s needs; in particular, minority children. [ 32 ] Ms.

Sana’s Statement of Defence and Counterclaim were filed on October 6, 2005. [ 33 ] Her statement of defence includes truth or justification and what has been described as the “rolled up plea”: that insofar as the words complained of consist of statements of fact, they are true in substance and in fact, and insofar as they consist of an expression of opinion, they are fair comment made in good faith and without malice, upon the said facts which are matters of public interest”. (Roger D. McConchie, Canadian Libel and Slander Actions (Toronto: Irwin Law Inc. 2004) at 384.) [ 34 ] Ms.

Sana’s defence does not expressly plead qualified privilege, but I will nonetheless deal with that as it is implied from the circumstances. [ 35 ] Specifically, Ms. Sana’s defence states: 4. Sana denies that the said words were written or published with the meaning alleged in the Statement of Claim, or that they bear or are capable of bearing the alleged meanings. 5. The words complained of were not in the plain and ordinary meaning defamatory of Elkow. Sana denies acting in any manner to cause harm to the character, person, feelings, and reputation of Elkow.

Sana further denies that she acted in any way which was designed to harass or cause harm or damage to Elkow. 6.

In the alternative, the words complained of consisted of communications to the Edmonton Public School Board, concerned parents, and others and were and are a fair and bona fide comment upon a matter of public interest, namely: the actions of Elkow towards Sana’s children at Jackson Heights School, the actions of Elkow against Sana when she attempted to have the treatment of her children improved, and the actions of the Edmonton Public School Board against Sana when she complained to them about the situation at school. 7.

In the alternative, insofar as the words consist of allegation of fact, they are true in substance and in fact, insofar as they consist of expressions of opinion, they are fair comments made in good faith and without malice based upon the facts as disclosed, which are matters of public interest. 4. Procedural History [ 36 ] Ms. Sana counterclaimed seeking damage for stress and psychological problems resulting from Ms. Elkow’s “ongoing harassment and discrimination” of her children, amongst other complaints. [ 37 ] The counterclaim was struck by Gill J on November 26, 2006: Elkow v Sana , 2006 ABQB 851 .

At para 36, he held: [36] In

summary the Counterclaim in both its original form and as amended does not in its entirety disclose a cause of action and should be struck pursuant to Rule 129(1)(

a) and (b). [ 38 ] While Ms. Sana appealed that decision, she failed to provide security for costs of the appeal ordered by Slatter JA and her appeal was struck. [ 39 ] Costs were ordered against Ms. Sana, and remain unpaid. On June 5, 2009, Master Breitkreuz ordered Ms. Sana to answer questions objected to on examinations for discovery that had been held in August, 2009. Costs of that application remain unpaid. Including the costs of the striking of the Counterclaim, Ms. Elkow says that a total of $3,056 is unpaid.

[40] Further discoveries have been held, but have not yet been completed. Ms. Elkow alleges that Ms. Sana’s counsel has notresponded to requests on April 10, 2013 and February 11, 2014 to

schedule the completion of questioning. [41] A Notice to Admit Facts was filed on October 17, 2014. Ms. Sana’s response, filed November 6, 2014, contains manyadmissions that are relied on by Ms. Elkow for the purpose of this application. [42] In particular, Ms. Sana acknowledges preparing and handing out the leaflets referred to in item 11 above, to various people, onSeptember 16 and 17, 2004. She acknowledges telling Rocky Hansen that Ms. Elkow had abused her children.

She acknowledges herinvolvement with the Warning to Our Neighbourhood document dated August 24, 2005 and to her involvement in circulating it to varioushomes and businesses in Edmonton, including Dynacare Kasper, the Riverbend Medicentre and many other locations. This leaflet wasgiven wide, indiscriminate circulation. 5. Arguments A. Ms. Elkow [43] Relying largely on Hryniak v Mauldin, 2014 SCC 7 [Hryniak], and Windsor v Canadian Pacific Railway, 2014 ABCA 108[Windsor], Ms. Elkow argues that

summary judgment is appropriate in this case and there is no genuine issue requiring a trial. [44] She argues that the test is now “whether the claim or defence is so compelling that the likelihood it will succeed is very highsuch that it should be determined summarily:” 776826 Alberta Ltd. v Ostrowercha, 2015 ABCA 49 at para 13. [45] Parties faced with

summary judgment are presumed to have put their “best foot forward:” Windsor at para 21. [46] Not all conflicts in the affidavit evidence on a

summary judgment or dismissal application preclude

summary judgment. Asstated in Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101 at para 79: [79] ...Where the judge finds that he or she can make a fair and just determination on the merits of the application, it should proceedwithout oral evidence. This arises where the judge can make the necessary findings of fact and apply the law to those facts. [47] Ms. Elkow argues that the words spoken of her by Ms. Sana are defamatory and cites in particular Hall v Kyburz, 2006 ABQB294, aff’d 2007 ABCA 228 [Hall]. [48] In her argument, she negates the defences of truth, justification and fair comment.

She argues that Ms. Sana acted maliciously. [49] In the alternative, she seeks an order for security for costs of the ongoing action, on the basis that Ms.

Sana has failed to paythe costs ordered against her, as well as procedural orders to manage the action to trial. [50] A large number of authorities supporting her position were cited: Elkow v Sana, 2006 ABQB 851; Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108; Maxwell v Wal-Mart, 2014 ABQB 383;776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49; Sandhu v Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101; GuaranteeCompany of North America v Gordon Capital Corporation, (SCC); Hall v Kyburz, [2006] A.J.

No. 464 (Q.B.); Hall vKyburz, 2007 ABCA 228; Durphy v Mliscögen, 2015 ONSC 3631; Motoretta v Twist & Go Power Sports, 2014 ONSC 2469; 2964376Canada Inc v Bisaillon, 2012 ONSC 3113; Henderson v Pearlman, (ONSC); Hiltz v Seamone Company Limited, (NSSC); Angle v LaPierre, 2008 ABCA 120; KDM Management v Rushton, 1998 ABCA 217; Hamill v Kudryk,2013 ABCA 37; Bull HN Information Systems Limited v L.I.

Business Solutions Inc, 1993 ABCA 176; Emile Labby Trucking Ltd vOption Inc, 2014 ABQB 248; Vaccaro v Twin Cities Power-Canada U.L.C., 2014 ABQB 56; Manson Insulation Products Ltd vCrossroads C&I Distributors, 2014 ABQB 634; Hill v Church of Scientology of Toronto, (SCC), [1995] S.C.J. No. 64;McKerron v Marshall, [1999] O.J. No. 4048; Uppal v Diler [2012] O.J. No. 2713; Matthison v Bradburn (Estate), 2007 ABCA 173,Hur v 726913 Alberta Ltd, 2013 ABQB 208; Laufer v Buclaschuk, [1996] M.J. No. 202; Sperling Estate v Heidt, (SK KB), [1999] S.J. No. 58; Hameed v Hameed, 2006 ONCJ 274 , [2006] O.J.

No. 3109; Kavaner v Jancsurak, 2012 ONCJ543 , [2012] O.J. No. 4040; Mackey v Squair, 2015 ABQB 329; Quinney v 1075398 Alberta Ltd, 2015 ABQB 452; [51] Although a number of authorities supporting her position were cited, I will only deal with the authorities I consider necessaryto determine this application. B. Ms. Sana [52] Ms. Sana argues that while Hryniak has indeed changed the focus on

summary judgment applications, this case isinappropriate for

summary judgment because of the time and money already invested in the action. Further, she argues that

summaryjudgment cannot be granted in whole because the Plaintiff is not pursuing

summary judgment against Mr. Sana. Since that matter muststill be resolved,

summary judgment against Ms. Sana would not bring the action to an end and “is therefore not efficient”. [53] She asserts the qualified privilege defence with respect to all of the allegedly defamatory statements. To the extent that thedefence of qualified privilege is not adequately pled, she applies to amend the statement of defence to specifically plead this defence, andargues that this application should be determined before the

summary judgment application: Elbow River Marketing v Canada CleanFuels Inc., 2011 ABCA 258. However, no specific application has been brought by her. [54] Ms. Sana argues that because of the conflicts in the evidence between her affidavit and Ms. Elkow’s, there exists “evidencethat could be sufficient to defeat the applicant at trial”. The weighing of evidence remains the function of the trial judge: AT Films Inc. v

AT Plastics Inc., 2014 ABQB 422. [55] Ms. Sana argues that Ms. Elkow bears the burden of establishing malice or the absence of good faith on Ms. Sana’s part. Thatis highly fact-specific and is an issue that should be left to be determined at trial, since there are significant credibility disputes betweenthe parties. [56] The essence of Ms. Sana’s argument is that there are significant factual disputes. She argues that: 1. There is evidence (from Mr. Sana) that Ms. Elkow unfairly took sides in the dispute between Mr. Sana and the other parentconcerning the traffic incident on April 21, 2004; 2.

There is evidence that the children were mistreated immediately following the traffic incident, from what Ms. Sana’s daughter toldher and from the letter appended to Ms. Sana’s affidavit of July 24, 2015; 3. Ms. Elkow did nothing to investigate the allegation that the children had been forced to stand out in the rain; 4. Ms. Elkow has admitted on cross-examination on her April 22, 2015 affidavit that she had spoken to the daughter about thedaughter not being truthful to Ms. Sana, and had accused the daughter of lying (referencing what may have been said about the rainincident); 5. Ms.

Elkow does not have personal knowledge of what Ms. Sana said to Leadership Services in her complaint, despite swearing inher affidavit that Ms. Sana had complained that she had ordered two of the children to stand in the rain; 6. Ms. Elkow acknowledged that she refused to meet with Ms. Sana at the School to discuss Ms. Sana’s concerns; 7. Ms. Elkow has not provided evidence that the facts in her letter banning Ms. Sana from the school were true; 8. There is evidence supporting Ms.

Sana’s allegations of discrimination, including a report to Children’s Services, referring to theSana children as “overly obedient, like little robots or zombies”. [57] According to Ms.

Sana’s counsel, “the evidence of all three parties who have submitted Affidavit evidence clashes onmaterial points, and demonstrates that serious credibility issues going to the heart of the contested issues exist which cannot be fairlydetermined without a full trial.” [58] A number of cases are cited in support of her arguments: AT Films Inc v AT Plastics Inc, 2014 ABQB 422; Hryniak v Mauldin, 2014 SCC 7 , [2014] 1 R.C.S. 87; Elbow RiverMarketing v Canada Clean Fuels Inc, 2011 ABCA 258; Hur v 726913 Alberta Ltd, 2013 ABQB 208; Hill v Church of Scientology, (SCC), [1995] 2 S.C.R. 1130; Angle v St Pierre, 2006 ABQB 198; Chohan v Cadsky, 2009 ABCA 334; Robinson vFurlong, 2015 BCSC 1690; Campbell v Jones, 2002 NSCA 128; Kam’s Sand Coating Ltd v Mearford Energy Services Ltd, 2000ABQB 434; Lakeland Chevrolet Ltd v Skwarok, 2014 ABQB 123; Toronto-Dominion Bank v Suitel Canada Executive Suites, 2011ABQB 519. [59] I will only deal with those I consider necessary to refer to for the purposes of this decision. 6.

Analysis on

Summary Judgment [60] I recently dealt with the current state of the law on the availability and appropriateness of

summary judgment in Sticks andStones Communications Inc v Hole’s Greenhouses & Gardens Ltd, 2015 ABQB 774. I need not repeat my analysis and conclusionshere. [61] Parties wait for a long time to have a

summary judgment application proceed. I am told that the Masters are currently bookingsummary judgment special chambers applications into August, 2016. Trials in this court are being booked into 2017 but for one or twoday matters and the occasional cancellation. [62] It is thus important for counsel to ensure that there is a reasonable prospect that the judge hearing the matter will be able tofairly decide the case on a

summary basis. Not all disputes need viva voce evidence and many disputes involving the

interpretation ofdocuments and applying legal tests and standards to largely non-controversial facts involve more argument and decision-making timethan trial time. [63] If the court determines that viva voce evidence is not required, then the court must engage in a six-step analysis to determinewhether a matter is suitable for

summary judgment: Windsor at para 13, Hryniak at para 49, 1214777 Alberta Ltd. v 480955 AlbertaLtd, 2014 ABQB 301, Beier v Proper Cat Construction Ltd, 2013 ABQB 351 [Proper Cat]: 1. The court is to presume that the best evidence from both sides is before the court. (e.g. Canada v Lameman, 2008 SCC 14 ,[2008] 1 SCR 372, at 378 and 382). The decided cases tell us that

summary judgment applications have to be decided on the evidencebefore the court and not on what the evidence might be. Parties are required to put their best foot forward. This reinforces the importanceof treating

summary judgment applications advisedly and with due caution. The only caveat that might apply here is that if the

summaryjudgment application is before a Master and the losing party does not like the Master’s opinion, it is not so difficult to patch up theevidence on appeal. 2. As a corollary to number 1, the court is to ask whether a negative inference can be drawn from the absence of evidence on certainpoints.

3. Next, the court should look at the complete package and ask whether all of the evidence is admissible. Rule 13.18 (3), for example,tells us that we can’t use hearsay for a final application. 4. Next, the court should ask whether there is a conflict in the evidence and, if so, whether, (

a) the conflict has been resolved on crossexamination: Janvier v 834474 Alberta Ltd., 2010 ABQB 800, or, (b), whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported: Guaranty v. Gordon, (SCC), [1999] 3 SCR 423. Self-serving evidence does notgive rise to a triable issue. 5. The next step is to examine the evidence. As Master MacLeod said in the Pammett decision: [28] There are subtle distinctions here. The court may assess the sufficiency of the evidence admissibility of evidence and reliabilityof evidence without access to enhanced fact finding powers.

The court may also apply the law to the facts without deciding a genuinequestion of law. Assessing the sufficiency of the evidence will also involve considering whether the issue can fairly be decided on the factual recordbefore the court (Tottrup v. Clearwater Municipal District (99) (2007) 2006 ABCA 380 , 68 Alta L.R. (4th) 237 at 242and Gayton v. Lacasse, 2010 ABCA 123at para. 11). 6.

Having performed that evidentiary exercise, as Master MacLeod further says in the Pammett case: (and see Proper Cat at paras. 61-64, 69): [31] A plaintiff will be entitled to judgment if the plaintiff can prove all elements of the cause of action and the defendant either has nodefence or is missing critical elements of proof necessary to maintain that defence. A defendant will be entitled to judgment if theplaintiff cannot prove an essential element of its cause or if the defendant has a complete defence. (1214777 Alberta Ltd at para 17.) [64] The law on

summary judgment now encourages

summary judgment wherever it is reasonably possible. That is the obviousresult of the enormous costs of litigation and the private and public resources necessarily employed to hold a trial. [65] This case has gone on for more than ten years. The costs to the parties have been enormous and yet questioning is still notcomplete and a trial would be well more than a year away. [66] The question for me is whether this is a matter that can be fairly determined summarily, without the necessity of a trialinvolving viva voce evidence. [67] One factor in this case that supports the appropriateness of

summary judgment is Ms. Sana’s affidavit of July 24, 2015. Atpara 3 she states: As the events giving rise to this application occurred approximately 11 years ago, my memory about these events is not perfect. Myrecollections as outlined below are set out to the best of my ability and recollection today. [68] Ms. Norheim argues against

summary judgment on the basis that Mr. Sana’s claim will not be dealt with here, which indicatesa need for all issues to go to trial. She also references the large amount of time and resources the parties have put into this case to thepresent time as a reason to allow this matter to proceed to trial. She suggests that otherwise, the large efforts of the parties will essentiallybe wasted. [69] Neither argument is compelling.

Summary judgment is available on individual claims within a lawsuit, and it has always beena legitimate objective of

summary judgment to deal with individual claims and individual parties if reasonably possible. That will havethe benefit of simplifying the case, especially where one party can be extricated. Here, there are no cross-claims or notices ofcontribution between Mr. Sana and Ms. Sana, such that both would be left in the lawsuit in one way or another regardless of the outcomeof

summary judgment. [70] As for the sunk costs argument, that is exactly why there are

summary judgment processes: once the parties have enoughinformation and have defined the real issues between them, they should look for the most efficient and expedient way of resolving theirdispute. Trials are almost always inefficient, expensive and slow. [71] Conducting a Proper Cat analysis, I conclude:

a) There is sufficient evidence to determine almost all of the issues;

b) I am able to and do draw a negative inference against Ms. Sana relating to the absence of evidence denying involvement in theAugust 24 leaflet (discussed below);

c) The necessary evidence is admissible, although the absence of direct evidence makes it inappropriate to deal with a small numberof the Plaintiff’s defamation claims on a

summary basis; and

d) There are no essential contradictions in the evidence that would be aided by viva voce evidence. [72] That leads me to the next step of examining the evidence. 7. Analysis of the Evidence [73] This is indeed an unfortunate situation. Ms. Sana has put forward evidence of personal difficulties at the time of the incidents:recent separation, limited English skills, and depression following the birth of a child in 2004.

[ 74 ] As an overview, it appears that the problems that ensued between Ms. Sana and Ms. Elkow were the result of a massive over- reaction to the traffic incident. That incident – between Mr. Sana and another parent on the road in front of the school - appears to have had racist overtones. While Mr. Sana saw fit to go directly to the police himself to report the incident, he and Ms. Sana interpreted Ms. Elkow’s telling the other parent that she would do nothing about it herself, but that the other parent should report it to the police, as Ms.

Elkow “taking sides”. [ 75 ] That impression, in turn, coloured all further dealings between Ms. Sana and Ms. Elkow. [ 76 ] It is clear from cases such as Proper Cat that the courts will approach

summary judgment on the basis that the parties have put their best evidence before the court. Wakeling J, as he then was, noted that the non-moving party has no burden to discharge. However, “in some circumstances, the non-moving party may be at risk of losing the

summary judgment application if it fails to present a version of the facts which is inconsistent with the facts which is inconsistent with that relied on by the moving party” (at para 67). [ 77 ] With the new approach mandated by Hryniak , there is little if no benefit to keeping powerful evidence in reserve. There are so few trials that actually proceed, such that holding back the “smoking gun” is almost always a poor and wasted strategy. [ 78 ] Here, it is telling that Ms. Sana does not deny involvement in the August 24, 2005 “anonymous” letter and its wide circulation. She argues that it is up to Ms.

Elkow to prove her authorship and participation. [ 79 ] In the absence of any evidence to the contrary and no specific denial from Ms. Sana or any of her children (I note that her daughter is now an adult and university graduate), I am entitled to and do draw the inference that Ms.

Sana was involved in both the writing of the August 24, 2005 letter and its distribution. [ 80 ] A reading of that letter makes it highly likely that it was written by a family member with close involvement in the events, and that it is highly unlikely that a stranger to the family would get so heavily involved in the dispute between Ms. Sana and Ms. Elkow. [ 81 ] Otherwise, Ms. Sana admits writing the letters and making the statements attributed to her in the Amended Amended Statement of Claim and Ms. Elkow’s affidavit. 8. Defences [ 82 ] Ms.

Sana’s defence rests on truth, justification, qualified privilege and fair comment. [ 83 ] Truth and justification depend on the factual accuracy of any statements of fact. Beyond that, this case involves two potential areas of defence: qualified privilege and fair comment. [ 84 ] Truth or justification was described by Erb J in Hall at paras 25-26 : [25] The Respondent has also raised the defence of justification based on the truth of the statements. The Law of Defamation discusses the principles at issue in

chapter 10, page 2: Justification or the truth of the matter asserted is a complete defence to an action for defamation. The published material must be false. What is true cannot be defamatory. No one can be heard to complain if only the truth is published about him. A plaintiff has no right to have his or her character or reputation free of an imputation that is not false. The defence of justification is of ancient origin.

The reason most often advanced in support of this defence is that “the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess. If the accusation is true, the plaintiff suffers no legal harm, it is damnum obsque injuria . And at page 17, 18, 19: A person cannot escape liability by prefacing his or her accusations in the form of rumours or reports originally circulated by someone else. A defendant will succeed on a plea of justification only if he or she can prove that the content of what is reported is substantially true.

The defendant’s liability does not depend on the adoption or reaffirmation of the defamatory comment. He or she cannot report a defamatory remark by one person about the plaintiff and justify it by proving that the other person said it; the substance of the remark which has been reported must be proved. It is not a sufficient justification to prove that the source of the information actually said what the defendant repeated. No one is justified in stating false facts about another merely because someone else has done so.

The sting of the words is in the defamatory information about the plaintiff, and that is what must be justified. Those who give currency to a defamatory report are responsible for its truth. The act of publication is an adoption of the original calumny, which must be defended in the same way as if invented by the defendant. And at page 20: The state of mind of the defendant is not relevant to the defense of justification.

It will not avail a defendant to show that he honestly and reasonably believed in the truth of his assertions or that, on the contrary, he disbelieved the reports and told people so, and disclosed the sources, if in fact the subject-matter of the information turns out to be false. [26] The test for justification is the “substantial truth test” as referenced in The Law of Defamation

chapter 10 page 28. “The defendant must establish that the whole of the defamatory matter is substantially true. This includes the specific charges that are made and any inferences of fact flowing from those charges.

A. Defamatory Meaning [85] Not all untrue statements are defamatory, so the plaintiff needs to establish that the words published about him or her were notonly untrue but “tend to lower a person’s reputation in the estimation of ordinary, reasonable members of society generally, or to exposethe person to hatred, contempt, or ridicule”: Chernesky v Armadale Publishers Ltd., (SCC), [1979] 1 SCR 1067 at p1079 [Chernesky]. [86] I need spend no time here analyzing whether the words complained of here had a defamatory meaning.

Allegations ofcriminal behavior, racial discrimination, lying and abusing children all bear a defamatory meaning and tend to lower any person’sreputation. That is especially so in the context of a school principal. B. Fair Comment [87] Ms. Sana raises fair comment as a defence, suggesting that her speech was protected because she was simply exercising herright of free speech. That defence is articulated in Chernesky, where Martland J writing for the majority stated at p 1072: I thought I had better put that on the record, gentlemen, so that my position is clear and the reason for my ruling is clear.

The reason for the existence of the defence of fair comment in a suit for defamation, and the nature of that defence, are stated in Salmondon Torts, 17th ed., p. 180, as follows: A fair comment on a matter which is of public interest or is submitted to public criticism is not actionable. This right is one of the aspectsof the fundamental principle of freedom of expression, and the courts are zealous to preserve it unimpaired. It must not be whittled downby legal refinements. The jury are the guardians of the freedom of public comment as well as of private character.

It is only on thestrongest grounds that a court will set aside a verdict for a defendant when fair comment is pleaded. Comment or criticism must be carefully distinguished from a statement of fact. The former is not actionable if it relates to a matter whichis of public interest; the latter is actionable, even though the facts so stated would, if true, have possessed the greatest public interest andimportance.

Comment or criticism is essentially a statement of opinion as to the estimate to be formed of a man's writings or actions.Being therefore a mere matter of opinion, and so incapable of definite proof, he who expresses it is not called upon by the law to justify itas being true, but is allowed to express it, even though others disagree with it, provided that it is honest. Freedom to express an opinion on a matter of public interest is protected, but such protection is afforded only when the opinionrepresents the honest expression of the view of the person who expresses it.

This requirement is stated in the passage quoted above.Gatley on Libel and Slander, 7th ed., p. 308, says: Comment must be published honestly in that it is the expression of the defendant's real opinion. [88] Fair comment was well dealt with in Hall at paras 21 and 22: [21] Fair comment, absent malice, is available as a defence where the following elements have been proved: i. The words are comment and not a statement of fact; ii. There is a basis of fact for the comment contained or referred to in the manner complained of; and iii. It is a matter of public interest. [22] In Raymond E.

Brown’s The Law of Defamation in Canada Vol. 1, Chap. 1, page 35, fair comment is described this way: Fair comments made honestly and in good faith on matters of public interest are protected against an action for defamation, unless theyare made maliciously. The statement must be one of comment and not of fact, and in order to be fair, it must be an honest expression ofopinion on facts which are true and known to the persons to whom the comment is made.

Where the comment imputes evil, base orcorrupt motives, it must also be shown that such imputations are warranted by the facts, and could be drawn by a reasonable person.

Thepublic interest may be shown by the importance of the person about whom the comment is made, or because of the interest generated bythe event, occasion or circumstances giving rise to the comment. [89] What is most important with the defence of fair comment is to distinguish between comment and statements of fact. [90] That issue is dealt with in Barltrop v Canadian Broadcasting Corp., (1978), (NS CA), 86 DLR (3d) 61(NSCAD), leave to appeal to SCC denied (1978), 23 NR 447, where MacKeigan CJNS stated at paras 31-34: [31] I respectfully fear that in dealing with the defence of fair comment the learned trial judge not only too narrowly construed thedefamation, but also misconceived the nature of that defence.

The defence of fair comment on matters of public interest has been rightlytermed "a basic safeguard against irresponsible political power" and "one of the foundations supporting our standards of personal liberty"(Fleming on The Law of Torts (4th Ed.), p. 511). [32] To be comment, fair or unfair, a statement must be a statement of opinion and not a statement of fact. It must be an expression ofopinion about facts which must have been presented to the readers or listeners, or be well known to them, and which must themselves besubstantially true.

Such comment, with such a base, may then be excused even though it is defamatory, if it was a fair and honestexpression of opinion on a matter of public interest.

Fleming, supra, pp. 512 - 513. Gatley, supra, paras. 711 - 714. [33] The vital distinction is pointed up by Ferguson, J., in Myerson v. Smith's Weekly (1923), 24 S.R.(N.S.W.) 20, at p. 26, quoted byFleming, supra, at p. 512: "To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things andthat his conduct was dishonourable is a statement of fact coupled with a comment." [34] Gatley, para. 713, quotes the following example, referring to and quoting from Popham v.

Pickburn (1862), 7 H.& N. 891: "Thus where the defendant published in his newspaper a report of a medical officer of health, which asserted that the plaintiff, a chemistand druggist, had given false medical certificates, and advised that he should be prosecuted for forgery, it was held that such report[*page 658] could not be justified as fair comment. 'It was contended that this libel might be justified as a matter of public discussion ona subject of public interest. The answer is this: This is not discussion or comment. It is a statement of fact.

To charge a man incorrectlywith a disgraceful act is very different from commenting on a fact relating to him truly stated - there, the writer may, by his opinion, libelhimself rather than the subject of his remarks." [91] In general, fair comment has little application here as Ms. Sana was almost invariably expressing facts, not making commentson facts. [92] What Ms.

Sana did in almost all of her communications was to state her opinions or her conclusions as matters of fact, insteadof laying out the provable facts and commenting on those. [93] The essence of fair comment is that the reader or listener will be able to form his or her own conclusions from the facts statedand is not presented with the maker’s opinions as statements of fact. C. Qualified Privilege [94] Where defamatory words are published, there is a presumption that the words were spoken with malice. Qualified privilegeoperates to rebut this assumption.

The privilege is “qualified” or “limited” as the defendant’s privilege will be defeated where malice wasthe dominant motive for publishing the defamatory statements. [95] If qualified privilege applies, the law presumes that there was a different, innocent motive for publication, which is to promotethe defendant’s cause and interest by others in the cause.

These are all principles expressed in Hill v Church of Scientology of Toronto(1995), (SCC), 2 SCR 1130 [Hill]and Botiuk v Toronto Free Press Publications Ltd., (1995), (SCC), 126 DLR (4th) 609 [Botiuk]. [96] The defence is a complete bar to liability unless the plaintiff can demonstrate that the defendant abused the occasion, and thewords were spoken with malice, or that the limits of the defendant’s interest have been exceeded. [97] Qualified privilege arises where publication is made in a reasonable manner and for a proper purpose.

That is, where “theperson to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views aredefamatory of someone else and cannot be proved to be true”: Reynolds v Times Newspapers Ltd., [1999] 4 All ER 609 at 615 (HL)quoted in Chohan v Cadsky, 2007 ABQB at para 258, aff’d 2009 ABCA 334, leave to appeal dismissed (2009), SCCA No 496[Chohan]. [98] The basis for the defence of qualified privilege is that in some circumstances, the public interest outweighs the need to protecta person’s reputation.

The defence serves to protect those who honestly communicate what turns out to be misinformation to ensure thatthe free flow of uninhibited, accurate communications are protected. It is not necessary to show that the public generally has an interestin the particular communication, however, the defendant must demonstrate that the communication was made for the general good of thecommunity.

There is no requirement that the communication was beneficial to the public interest – only that the public had an interest inthat subject matter: Chohan at para 259. [99] Qualified privilege attaches to the occasion upon which the communication is made and not to the communication itself. Thecourts will consider a number of factors in determining whether the occasion is privileged, Raymond E.

Brown, The Law of Defamationin Canada, 2d. ed., looseleaf, (Toronto: Thomson Canada, 1999) vol. 2, at 13-34: 1) The nature of the alleged defamatory publication; 2) The persons by whom and to whom it is made; and 3) The circumstances under which it was published. [100] Whether this privilege applies depends on the subject matter and the circumstances of the publication, and not on the subjectivestate of mind of the defendant.

The test is whether a reasonable person, having regard to the relationship of the parties and thesurrounding circumstances, as a matter of public policy, should be entitled to speak in the way in which he or she did. [101] Whether the defendant honestly believed in the truth of his or her assertions is irrelevant in assessing whether the occasion wasprivileged. However, the defendant must have honestly believed in the truth of the statements in order for the communication to beprivileged: B(

P) v E(RV), 2007 BCSC 1568 citing Brown at 13-41 to 43.

[102] The burden is on the defendant to show that qualified privilege applies, on a preponderance of the evidence relating to all factsand circumstances regarding the existence of qualified privilege.

If the defendant establishes privilege, then the bona fides of thedefendant and his or her honest belief in the statements is presumed, and the plaintiff bears the burden of rebutting the presumption:Botiuk at para 70. [103] The defendant is not entitled to the privilege if the plaintiff proves: 1) The defamatory remark was communicated to a person not entitled to receive it; 2) The defamatory remark was in excess of or unrelated to the occasion; or 3) The defamatory remark was motivated by actual or express malice.

Hill at paras 147, 149, 150, Botiuk at paras 79-80, Brown at 13-145. [104] In other words, “the information communicated must be reasonably appropriate in the context of the circumstances existing onthe occasion when that information was given...”: Hill at para 147. [105] This defence is commonly raised in complaint situations, such as complaints about an employee to the employee’s superior, orabout a professional to his or her professional body, or to a tribunal such as the Human Rights Commission.

Whistle-blowers may alsobenefit from this privilege. [106] In such circumstances, the law recognizes that there is a public interest in such communications being encouraged and protectedfrom defamation claims. However, the communication must not be motivated by vindictiveness or some other desire to harm theplaintiff, and it must be made without malice. D. Malice [107] Once the occasion on which the words were published is found to be one of qualified privilege, the onus is not the plaintiff toprove actual malice.

Recklessly made statements can be deemed to be malicious in appropriate circumstances. [108] Only those publications made on the occasion of qualified privilege need to be scrutinized for malice. If a communication is inexcess of or not connected to the privilege, the court need not consider malice as the defence is not made out. [109] The Court of Appeal clarified the test for malice in Teamsters Local Union 987 v O’Halloran, 2005 ABCA 263, stating that theplaintiff must establish that the defendant acted in bad faith or had malicious intent.

The Court then set out five principles in determiningwhether malice defeats qualified privilege: 1. The defence of qualified privilege is not absolute. 2. If actual or express malice is the dominant motive for publishing the statement, the privilege is defeated. 3. If the occasion is shown to be privileged not all statements made on the occasion will be protected by the privilege. 4. A statement which is not reasonably appropriate in the context of the circumstances existing on the occasion will, if defamatory,not be protected by the privilege.

A statement will not be reasonably appropriate if it is the product of indirect motive or ulterior purposeor if it conflicts with the sense of duty or the mutual interest that the occasion created. 5. If the defendant is acting in accordance with a sense of duty or in a bona fide desire to protect his own legitimate interests,knowledge that publication of the statement will have the effect of injuring the defendant is insufficient, standing alone, to destroy theprivilege. [110] In Hill, the Supreme Court held at para 145 that malice is not limited to proof of ill-will or spite.

Malice defeats qualifiedprivilege where the plaintiff proves that the defendant knew the statements were not true, or made them with reckless disregard for thetruth, or where the defendant had “any indirect motive or ulterior purpose that conflicts with the sense of duty or the mutual interestswhich the occasion created: [145] Malice is commonly understood, in the popular sense, as spite or ill-will.

However, it also includes, as Dickson J. (as he thenwas) pointed out in dissent in Cherneskey, supra, at p. 1099, "any indirect motive or ulterior purpose" that conflicts with the sense ofduty or the mutual interest which the occasion created. See, also, Taylor v Despard, (ON CA), [1956] O.R. 963(C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for thetruth.

See McLoughlin, supra, at pp. 323-24, and Netupsky v Craig, (SCC), [1973] S.C.R. 55, at pp. 61-62. [111] The British Columbia Court of Appeal noted four ways of establishing malice in Smith v Cross, 2009 BCCA 529 at para 34[Smith]: [34] In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at 299, R.D. McConchie and D.A. Potts reduce thisstatement to a helpful framework for the categories under which a finding of malice can be made. A defendant is actuated by malice if heor she publishes the comment:

i) Knowing it was false; or ii) With reckless indifference whether it is true or false; or

iii) For the dominant purpose of injuring the plaintiff because of spite or animosity; or iv) For some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose notrelated to the occasion. [112] The plaintiff bears the burden of proving malice, however it is difficult to prove. In Korach v Moore (1991), (ON CA), 1 OR (3d) 275 (ONCA), leave to appeal to SCC denied, [1991] SCCA No 30, the Ontario Court of Appeal held at paras 23 –26: [23] Malice, in this branch of the law of defamation, means either (

a) lack of honest belief in the truth of the libellous statements; or(

b) use of the privileged occasion for an improper purpose: W.V.H. Rogers, Winfield and Jolowicz on Tort (London: Sweet & Maxwell,1979) 11 ed, at p 329. In either event, the defendant has abused the privilege and is, therefore, not entitled to claim the benefit of it. [24] The trial judge found that there was "no direct evidence of vindictiveness, dislike, revenge or improper motive". Indeed, there isno evidence that Moore had any animus or ill-will toward the plaintiff when he wrote the letter. There is a complete absence of anyevidence that Moore published his defamatory statements for an improper purpose.

The case turns, therefore, on whether Moore lackedan honest belief in the truth of what he wrote. [25] Evidence of malice may be extrinsic or intrinsic. Extrinsic evidence is evidence of surrounding circumstances. Intrinsic evidenceis the wording of the document itself. The wording may be so violent, outrageous or disproportionate to the facts that it furnishes strongevidence of malice: Spill v Maule (1869), LR 4 Ex 232, 38 LJ Exch. 138, 17 WR 805 (Ex Ch). Here the letter of October 3 was notviolent, outrageous or disproportionate.

In the circumstances, I do not believe that there is any intrinsic evidence of malice. If there ismalice in this case, it must be found in extrinsic evidence. [26] Extrinsic evidence that the defendant made the defamatory statements knowing them to be untrue will ordinarily be conclusiveevidence that the defendant lacked an honest belief in the truth of what he wrote. But the evidence need not go that far. If the defendantwas reckless in making the statements, that will be sufficient.

"Recklessness" in this branch of the law means indifference to the truth orfalsity of what was said: Horrocks v Lowe, [1975] AC 135, [1974] 1 All ER 662, [1974] 1 WLR 282 (HL), at p 153. [113] Ultimately, the Court of Appeal allowed the appeal, holding at para 47: [47] In my opinion, the speech of Lord Diplock correctly states the applicable law. I agree with Grange J.A. that carelessness ornegligence in forming an honest belief is not sufficient to constitute malice. Here Moore was undoubtedly careless in writing the letter ofOctober 3. He arrived at his conclusions on inadequate evidence.

If he had reviewed the troublesome student reports, he likely would nothave made the allegations that he made in the letter of October 3, but his carelessness or negligence is not sufficient for a finding ofmalice. The trial judge erred in basing his finding of malice on Moore not having "reasonable grounds" for believing that what he wrotewas true. [114] Erb J dealt with malice in Hall at para 23: [23] A Defence of “Fair Comment” can be defeated where “Malice” is demonstrated. Malice is discussed in The Law ofDefamation

Chapter 1, page 36: The malice necessary to sustain a cause of action in defamation is presumed from the very nature of the defamatory statement. . . Aninference of malice may be drawn from the unnecessary violence or intemperance in the language used, or by circumstances apart fromthe statement, such as the nature and character of the relationship between the plaintiff and defendant, the mode and extent of thepublication and the conduct of the defendant in publishing it. E.

Responsible Communication [115] I do not view the facts of this case as involving the new “responsible communication on a matter of public interest” defence setout in Grant v Torstar Corp., 2009 SCC 61 [Grant]. That is a defence available to the media. I recognize that “media” is to be given abroad

interpretation and includes bloggers and other commentators. [116] I do not think that the “responsible communication” defence is intended to afford protection to an individual reporting on eventsinvolving that individual. [117] Grant significantly changed the law of defamation in favour of extending protection to public communicators.

Speaking for themajority (of 8), the Chief Justice stated at para 65: [65] Having considered the arguments on both sides of the debate from the perspective of principle, I conclude that the current lawwith respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value offree expression. While the law must protect reputation, the level of protection currently accorded by the law — in effect a regime ofstrict liability — is not justifiable.

The law of defamation currently accords no protection for statements on matters of public interestpublished to the world at large if they cannot, for whatever reason, be proven to be true. But such communications advance both freeexpression rationales mentioned above — democratic discourse and truth-finding — and therefore require some protection within thelaw of defamation.

When proper weight is given to the constitutional value of free expression on matters of public interest, the balancetips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know. [118] The Supreme Court expressly declined to extend the sort of protection available in the United States when speaking aboutpublic officials under New York Times Co. v. Sullivan, 376 US 254 (1964) (as it had done fourteen years earlier in Hill) and insteadfollowed the Commonwealth approach of “shifting in favour of broader defences for press defendants” (at para 68).

[ 119 ] When one is promoting one’s own cause, as was the case with Ms. Sana, one is not able to avail him or herself of the “responsible communication” defence. F. Defamation in the context of Education [ 120 ] In the context of education, courts have recognized that parents and residents of a school district have a duty, and therefore the privilege, in appropriate cases to inform the proper officials of the habits or bad character of a teacher, or to request his or her removal.

A parent has a right and arguably a duty to report concerns about a teacher to the teacher’s principal, superintendent or to the school board. [ 121 ] In Gibbs v Jalbert (1996), BCCA 302, Prowse JA stated at para 21: [21] It is not disputed that members of a community have an interest in the integrity of the education system and the fitness to teach of those working within that system. More specifically, they have an interest in protecting their young people from mistreatment at the hands of their teachers.

It is in accordance with that interest that parents and other community members are permitted to raise with the proper authorities their honestly held concerns about alleged mistreatment of students by teachers. Communications made within that context are properly regarded as communications made on an occasion of qualified privilege which are entitled to the protection of the privilege, unless defeated by express malice. [ 122 ] There, the Court allowed the appeal and dismissed the action, holding at para 26: [26] Accepting that the further incidents referred to in the last paragraph of Ms.

Jalbert's letter were relevant, I am unable to find that her use of the words, "loathsome", "abhorrent" and "unprofessional" could, in themselves, support a finding of actual malice in this case. They are strong words arising from strong emotion, but must be viewed in light of Ms. Jalbert's honest belief that Mr. Gibbs had behaved unprofessionally towards students on many occasions such as to deserve these epithets. Absent the erroneous finding of the trial judge that Ms.

Jalbert knowingly referred to irrelevant information in her letter, the evidence does not support the conclusion that the language used by her arose primarily from vindictiveness or self-interest, as opposed to a genuine interest in protecting other children from a teacher she honestly, albeit mistakenly, perceived to be unprofessional. [ 123 ] In Angle v LaPierre , 2006 ABQB 198 , aff’d 2008 ABCA 120 , the defendants published cease and desist letters received from the Alberta Teacher’s Association on a website devoted to critiquing public education in Alberta.

The Court of Appeal held that publication on the internet was in excess of any occasion of qualified privilege. Furthermore, the cease and desist letters made clear that the parents were at liberty to pursue any other lawful remedies, and that repeated publication would result in an action for tortious defamation. [ 124 ] The circumstances in McKerron v Marshall (1999), OJ No 4048 (SCJ) [ McKerron ] are strikingly similar to this case. The defendant had a dispute with a teacher at his son’s school as a result of his son’s poor performance in class.

The defendant wrote multiple letters to the school board, launched a number of complaints to the principal and to the school board, and distributed defamatory letters at a school board meeting. Further, his campaign against the teacher was the subject of media coverage in the press, causing further public libel. The defendant attended at the school on multiple occasions in breach of a no trespass order, and also posted a defamatory sign for all to see on school property.

The plaintiff alleged two incidents of defamation relating to the letters distributed at the meeting and the sign posted outside of the school. [ 125 ] With respect to the first incident, the Court recognized the parent’ privilege to speak out regarding his concerns to the school principal and appropriate authorities. The occasion gave rise to privilege, even if the communication was untrue.

However, his conduct at the meeting was so reprehensible, and his personal campaign so palpably obvious, that the evidence of malice was overwhelming. [ 126 ] In addition, the blatant display of a defamatory banner to the world at large on school property was not protected by qualified privilege as the display was not connected to the occasion of the privilege. His motive in posting the sign was irrelevant. In that case, the defendant could not make out the other defenses of truth or justification, and was therefore liable for defamation. 9. Analysis of Malice [ 127 ] Ms.

Sana was initially acting out of concern for her husband, whom she believed had been the victim of racist comments by another parent. She was present at the “traffic” incident and was an eye witness to what went on there. Her witness statement to EPS dated April 22, 2004 is in evidence. She believed from learning that Ms. Elkow had told the other parent to go to the police with any concerns that Ms. Elkow had unfairly and improperly taken sides. She believed that her children had been wrongly forced to wait for her in the rain as they had not been allowed to remain in the school. She had no information that Ms.

Elkow had anything to do with that incident, but was aware that Ms. Elkow had done nothing to investigate it or to reprimand the School employees who had made the decision. She also believed that the interaction between Ms. Elkow and her daughter, where her daughter was accused of lying, was inappropriate and was abusive of her daughter. [ 128 ] Ms. Sana attributed any conduct of Ms. Elkow’s that she disagreed with to racism on Ms. Elkow’s part. There is nothing in the evidence that substantiates in any way Ms. Sana’s beliefs in that regard, but there is also no evidence to suggest that Ms.

Sana’s belief, however wrong, ill-informed and misguided, was not honestly held. [ 129 ] With that background, Ms. Sana had some legitimate concerns about Ms. Elkow’s actions, which could also relate to Ms. Elkow’s fitness as a principal. Principals are not immune from criticism, and even sharp criticism. 10. Analysis of Impugned Statements

[ 130 ] I do not intend to analyze the various statements in detail. I will simply pick out the allegedly offensive words from each of the communications complained of and determine if I can conclude on the basis of the evidence before me: (

a) Whether the words were spoken or published by Ms. Sana to third parties; (

b) Whether the words refer to Ms. Elkow; (

c) Whether the words are capable of a defamatory meaning; (

d) If the words were true; (

e) Or, if not true, whether they were spoken or published: a. On an occasion of qualified privilege; and b. Whether Ms. Sana acted without malice; (

f) Or if they are fair comment, they: a. Are statements of comment, not fact; b. Are based on true facts which must be made known to the recipient; c. Are comments any person might honestly express on the proven facts; and d. Were made without malice. [ 131 ] I will deal with each of the statements in turn. A. Letter by Ms. Sana to Mr. McBeath dated May 6, 2004 [ 132 ] The letter alleged that Ms.

Elkow had written a false statement to the police, had put her children under extreme psychological pressure, had verbally abused her daughter and was an abusive principal and not qualified for her job. [ 133 ] That letter was written on an occasion of privilege. Mr. McBeath was the Superintendent of EPS and would logically be a person to whom one might complain about the actions of a school principal. [ 134 ] On the evidence before me, there was no basis for Ms. Sana to allege that Ms. Elkow had written a false statement to the police. That was simply not true. There was no basis for Ms.

Sana to believe that. [ 135 ] Nevertheless, I am not satisfied that at this time, Ms. Sana was acting maliciously. There had been an altercation on April 21 between Mr. Sana and the other parent, Ms. Elkow had discussions about that incident with both Mr. Sana and the other parent, the “rain incident” had occurred, her daughter had reported a conversation with Ms. Elkow where Ms. Elkow had accused the daughter of lying and there had been an incident involving Mr. Sana going to his daughter’s classroom. [ 136 ] While Ms. Sana had no basis on which to accuse Ms.

Elkow of involvement in the children being kept out in the rain as that had clearly been a decision made by other School staff, in the context of the other events it is not entirely unreasonable to hold a principal of a school accountable for the actions of the teachers and staff reporting to her. [ 137 ] Ms. Sana was at this stage acting and speaking based on her understanding of what had occurred and what she had been told by her daughter. [ 138 ] On the evidence before me, I do not find this letter defamatory as it occurred on an occasion of qualified privilege. B. Statements at a meeting among Ms. Sana, Ms.

Elkow, Kevin Stevenson, a principal in EPS’s Leadership Services department and Joanne Keeler, Ms. Elkow’s administrative assistant, on May 20, 2004 [ 139 ] Ms. Sana met with Ms. Elkow, Ms. Keeler (her administrative assistant) and Kevin Stevenson, a representative of the EPS Leadership Services department to discuss the complaints Ms. Sana had expressed to Mr. McBeath in the May 6 letter. Ms. Sana repeated the allegations in the May 6 letter, and accused Ms. Elkow of lying. [ 140 ] This appears to me to be an occasion of qualified privilege. It was still early days in the dispute, and I am not satisfied that Ms.

Sana was acting or speaking with malice, although there does not appear to be any basis at all for Ms. Sana to be accusing Ms. Elkow of lying. Falsely calling someone a liar is defamatory, but here, Ms. Sana is in my view saved by her qualified privilege defence. C. Letter by Ms. Sana to Mr. McBeath dated May 28, 2004 [ 141 ] Ms. Sana writes to Mr. McBeath saying that Ms. Elkow is blaming her and her children “to cover her abusive actions” and that “I am not the only (parent) to raise her voice to protect her children from an abusive and unqualified principal”.

[ 142 ] The letter only went to Mr. McBeath, who was Mr. Stevenson’s superior. The letter follows an obviously unsatisfactory meeting with Ms. Elkow and Mr. Stevenson, and in my view still qualifies for the qualified privilege defence. D. Statements made by Ms. Sana to other parents of children at Jackson Heights School on May 28, 2004 [ 143 ] I am of the view that qualified privilege attaches to these statements. Ms. Sana was at this stage expressing her concerns about the School principal’s actions.

As noted above, qualified privilege may attach to communications to parents and teachers concerning activities in the school the teachers teach in and the parents’ children attend. [ 144 ] There was apparently no factual context given to Ms. Sana’s comment that Ms. Elkow was incompetent as a principal. There was no evidentiary basis for Ms. Sana to state that Ms. Elkow was dishonest. Statements as to Ms. Elkow “abusing her children” have some slim evidentiary basis in the context of Ms. Elkow accusing the daughter of lying, and the “rain” event, for which Ms.

Elkow may have some vicarious responsibility for the actions of her staff and might be criticized for not following through with any investigation and discipline. [ 145 ] These were clearly defamatory comments. I need not spend any time discussing whether calling someone dishonest, abusive and incompetent is defamatory, subject to justification or other defences. [ 146 ] At this stage, however, I am satisfied that Ms. Sana was not acting maliciously. Her correspondence to Mr. McBeath had not resulted in actions satisfactory to her; the meeting with Ms. Elkow and Mr.

Stevenson had not gone well, and she was now starting to ramp up her complaints by widening the circle to teachers and parents at the School, but not beyond. [ 147 ] As a result, the defamatory comments made were covered by the qualified privilege enjoyed by Ms. Sana at that time. E. Letter by Ms. Sana to Mr. McBeath dated June 3, 2004 [ 148 ] This letter is obviously in response to Ms. Elkow’s letter of June 2, 2004 banning her from the School. [ 149 ] In the June 2 letter, Ms. Elkow referred to the May 20, 2014 with Ms. Elkow and Mr. Stevenson.

For the purposes of this decision, it is useful to quote the entire letter, as it puts context on most of the events that followed. [ 150 ] The letter stated: Dear Ms. Sana: This letter summarizes our meeting of May 20, 2004. The purpose of the meeting was to bring resolution to concerns that you shared verbally between April 21, 2004 and May 20, 2004, and in your letter of May 6, 2004. This meeting followed our meeting of May 4, 2004 that was unable to bring closure to your issues. The agenda for the meeting focused on your concerns as stated in your letter of May 6, 2004.

All of these concerns were responded to. You expressed satisfaction in those responses. In addition, I outlined for you expectations for bringing concerns to school staff, and for expected parent behaviours as related to the school and the staff. We reviewed those conditions, you acknowledged these, and you expressed willingness to abide by them. I was encouraged by your statement that you trusted me to treat your children well and that you, Mr. Sana, and your children are very happy with our school and would never leave it. The meeting ended on a positive note.

Subsequent to the meeting, you refused to meet with your son’s teacher, Mr. Lester, as another staff member was present to take notes of your meeting. You agreed to this condition at our May 20 meeting. It has come to my attention that since late April, including following our meeting of May 20, you have been making statements to other parents about my incompetence as a principal, my lack of honesty, and my abuse of your children. It has also come to my attention that you have more recently been trying to rally other parents to start a petition to remove me from this school.

At the May 20 meeting, you agreed to stop making defamatory comments about me. In attempt to resolve your concerns or to respond to queries, you hung up on me during telephone calls on May 6, May 12, and May 26. Your tone was confrontational during these contacts. On May 4, you left a meeting in anger before it was concluded. Earlier this year, you expressed anger inappropriately to another parent driver while picking up your children. Your angry gestures, including “giving the finger”, were observed by me. A complaint of a similar incident had been brought to my attention previously.

Your behaviour is unacceptable and this has left me with no alternative. From this date forward, you are not permitted to enter the school or school grounds without my permission. If you are at any time present in the school or on the grounds without my permission, you will be considered a trespasser and I will immediately contact the police. This restriction includes the drop-off lane in front of the school. Be advised that section 27(1) of the School Act provides as follows: No person shall (

a) disturb or interrupt the proceedings of a school, (

b) disturb or interrupt the proceedings of a school meeting or board meeting, or

(

c) loiter or trespass in a school building or on property owned by a board.

Section 277 of the School Act provides that any person who contravenes

section 27 is guilty of an offence and liable to a fine of up to $1000. Any further contact with school staff or with me will be in writing or through scheduled appointment, arranged by telephone. [ 151 ] It is obvious from Ms. Sana’s affidavit of July 24 that she has a very different memory of the meeting of May 20. She also disputes the factual allegations relating to telephone hangups and incidents alleging that Ms. Sana had “given the finger” to other parents when picking up her children. [ 152 ] In her letter to Mr. McBeath, Ms.

Sana refers to this June 2 letter as containing “too much lies and untrue allegations”. [ 153 ] Ms. Sana now refers to Ms. Elkow’s actions as being “a crime toward our kids” and putting “our kids’ life in danger”. She threatens demonstrations in front of the school and getting help from the media (National Television). [ 154 ] This letter is strong evidence of malice on Ms. Sana’s part. [ 155 ] At this stage, the “facts” are that: (

a) Ms. Elkow had told the other driver to go to the police arising out of the traffic incident, under circumstances where Mr. Sana had already gone to the police himself and Ms. Elkow had refused to call the police herself. Ms. Elkow was obviously trying not to get involved in something that had occurred off School property; (

b) The Sana children had been told to wait to be picked up after school outside the School and in the rain. That was a poor decision on the part of the staff who made that decision, but there is no evidence at all that Ms. Elkow was involved in that decision or was even aware of it until told about it by Ms. Sana; (

c) Ms. Sana’s daughter had been accused of lying to her mother about what had happened relating to the “rain” incident; and (

d) Ms. Sana was of the opinion, based on information from her children, that they were subjected to differential treatment by Ms. Elkow. [ 156 ] There are certainly factual issues about who said what to whom in meetings, whether Ms. Sana had hung up the phone on Ms. Elkow and whether Ms. Sana had ever given another driver “the finger”. [ 157 ] But to escalate the dialogue by stating to Mr. McBeath that “Ms.

Elkow not only covers her abusive behaviour and her crime toward our kids and she wants to keep me away from the school and she is putting me under extremely pressure, she also puts our kids life in danger” is simply over the top. Alleging criminal behaviour and that the children’s lives are in danger has no foundation in any of the facts or even Ms. Sana’s

interpretation of the facts. Those statements had no factual basis to them and were recklessly made. [ 158 ] The communications and the circumstances surrounding this exchange satisfy me that at least two of the tests for malice listed in Smith have been met by the Plaintiff, that that statements were made: ii) With reckless indifference whether it is true or false; or iii) For the dominant purpose of injuring the plaintiff because of spite or animosity. [ 159 ] At this stage of the decision, it is necessary to comment on Ms.

Sana’s evidence of the stresses she was under at the time because of her recent separation, her health issues resulting from the stresses and untreated depression and her lack of English skills. [ 160 ] None of these issues has any bearing on whether she defamed Ms. Elkow. Her intentions (except as they relate to a determination of the presence or absence of malice) are irrelevant. Any honest but mistaken belief in the facts she spoke or wrote about does not assist her.

Her state of mind, state of health, or lack of English skills do not excuse defamatory statements. [ 161 ] This is where apologies are so important. A sincere and full apology for a defamatory statement goes a long way towards mitigating any damages the defamer may otherwise be liable for. But here, there has been no apology whatsoever. [ 162 ] Indeed, Ms. Sana’s affidavit of July 24, 2015 is entirely unrepentant. She swears in para 10 that “everything I stated in that letter (the letter of May 4, 2004 to Mr. McBeath) is true.” An honest belief in the truth does not assist her. [ 163 ] While Ms.

Sana was undoubtedly upset by the ban place on her relating to her attendance at the School, her response by threatening demonstrations in front of the school and involving the media satisfies me that at this stage, Ms. Sana moved from being a parent concerned about her children’s treatment at school to someone acting vindictively towards Ms. Elkow with the intention of harming her

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