Elkow v Sana, 2016 ABQB 235

Court of Queen ’ s Bench of Alberta Citation: Elkow v Sana, 2016 ABQB 235 Date: 20160428 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 _______________________________________________________ 2 nd Supplemental Reasons for Judgment of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] This is a decision following an application to settle the terms of the judgment granted by me on December 21, 2015 ( Elkow v Sana , 2015 ABQB 803 ), as amended by my first supplemental decision in this matter ( Elkow v Sana , 2016 ABQB 59 ). That supplemental decision removed a damage assessment and award. [ 2 ] The parties are unable to agree on two issues:

1. Ms. Sana objects to my having issued the first supplemental decision, arguing that the assessment of damages should not have been removed; and 2. Ms. Sana argues that the formal judgment should make it clear that the claims I did not grant

summary judgment on should be expressly dismissed. Preliminary matter [ 3 ] Ms. Norheim submitted that I had erred in concluding that Ms. Sana had admitted responsibility for the distribution of flyers in August, 2005. I noted in my decision that Ms. Sana had, by a response to a notice to admit facts, accepted responsibility for distribution, but that she had withdrawn that admission in argument. [ 4 ] On reviewing the original notice to admit and the response, I realize that I had misread the response to notice to admit, and that Ms. Sana had in that document denied such responsibility.

She had initially admitted responsibility in her statement of defence, but that admission was expressly withdrawn and ultimately ordered withdrawn by Master Smart many years ago. [ 5 ] Mr. Taylor very fairly confirmed that I had erred in this regard. [ 6 ] I am accordingly issuing a corrigendum that will remove paragraph 217 from the decision filed January 22, 2016 and will renumber subsequent paragraphs. There will also be wording changes to existing paragraph 218. My comments in the following paragraphs in that

section of the decision should be read in the context of the misunderstanding I had at the time concerning Ms. Sana’s acceptance of responsibility for the leaflet. [ 7 ] I appreciate Ms. Norheim pointing out this misunderstanding to me. Neither she nor her client reneged on anything. I apologize to them for this error. [ 8 ] Mr. Taylor argued on this application that there was a deemed admission of responsibility because the Reply to Notice to Admit Facts contained only a bare denial. Rule 6.37(3)(

a) requires a denial to “set out in detail the reasons why the fact cannot be admitted”. [ 9 ] This is a technical argument, but a fair one. However, in this case, I do not see it appropriate to determine issues of defamation and malice on the basis of a deemed admission resulting from imperfect compliance with the Rules regarding notices to admit. First Supplemental Decision [ 10 ] Ms. Norheim argues essentially that I got it right the first time by assessing damages. She pointed out that Ms. Elkow’s Notice of Application for the

summary judgment application sought “an order granting

summary judgment, in whole or in part, against the Defendant, Najmeya Sana”. [ 11 ] I note as well that the special chambers brief filed on Ms. Elkow’s behalf seeks: 126 An order granting

summary judgment in favour of the Plaintiff, with respect to liability; 127 An order, pursuant to Rule 7.3(3)(b), determining the amount of damages payable by the Defendant, or alternatively, referring the amount of damages for determination by a referee. [ 12 ] Despite that request, there were no arguments in the Plaintiff’s brief concerning damages, and no damage cases submitted, other than in relation to the Plaintiff’s alternate argument concerning security for costs. [ 13 ] Ms. Norheim’s brief on behalf of Ms.

Sana did contain argument on damages and provided several cases on damages. [ 14 ] However, it is clear that there was no argument at the application itself with respect to the quantum of damages. [ 15 ] When initially preparing my decision, I had reference to the pleadings and the briefs as well as my notes from the argument. I did not have the benefit of a transcript of the application, nor did I review the recording of it. [ 16 ] When Mr.

Taylor wrote me regarding the assessment of damages, he provided portions of the transcript, and I was satisfied from the discussion at the application that I had not been asked to assess damages, and the application was proceeding on the assumption that if

summary judgment on liability were granted, an assessment of damages process would subsequently take place. [ 17 ] Ms. Norheim did not weigh in following Mr. Taylor’s letter, but in fairness to her, I did not specifically seek her input before issuing the first supplemental decision. [ 18 ] Despite able argument by Ms. Norheim, I am satisfied that I was correct in opening up my previous decision on damages and continue to agree with Mr. Taylor’s submission that I proceeded to assess damages in error. The application itself was heard on October 6; my decision issued on December 21, 2015.

In the interval between hearing the matter and rendering my decision, I assumed incorrectly that the parties had left the assessment of damages to me. [ 19 ] As a result, I decline to rescind the first supplemental decision.

Dismissal of claims for which

summary judgment not granted [ 20 ] Ms. Norheim argues that the formal judgment should recite that the claims for which I did not grant

summary judgment (on liability) should be expressly dismissed. [ 21 ] She argues that parties are obliged on

summary judgment applications to “put their best case forward”. That principle was reflected in my analysis of

summary judgment in the decision at paragraph 63. [ 22 ] She argues further that it is clear from cases such as Pioneer Exploration Inc. (Trustee of) v Euro-Am Pacific Enterprises Ltd., 2003 ABCA 298 , that “the plaintiff bears the evidentiary burden of proving its cause of action on a balance of probabilities. Each and every fact necessary to support the claim must be proven...”. [ 23 ] This is not a case where the plaintiff sought

summary judgment and the defendant cross-applied for

summary dismissal. Here, the plaintiff sought

summary judgment and the defendant resisted, arguing that there were triable issues and the entire matter should go to trial. [ 24 ] I note that the recent Court of Appeal decision in Pyrrha Design Inc v Plum and Posey Inc , 2016 ABCA 12 upheld the chambers judge’s decision to dismiss the applicant’s

summary judgment application and dismiss the action, despite there being no cross- claim for

summary dismissal. [ 25 ] In that case, the majority noted at paragraph 27: [27] This is a prime example of a case with no genuine issue requiring trial because the

summary process: (1) allowed the chambers judge to make the necessary findings of fact; (2) allowed the chambers judge to apply the law to the facts; and (3) was a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak at para 49. The chambers judge in this case was confident that a

summary determination on the existing record allowed for a fair and just adjudication, and it was therefore the proportionate way to resolve the dispute: Hryniak at para 50. [ 26 ] I do not think the case stands for the proposition that if a plaintiff seeks

summary judgment and fails, the action will be dismissed. Here, I dismissed

summary judgment on some claims on the basis of the evidence before me. I went through a detailed analysis of all of the allegations of defamation and made various findings. [ 27 ] For example, in paragraph 138 I held: On the evidence before me, I do not find this letter defamatory as it occurred on an occasion of qualified privilege. [ 28 ] I did not address my mind at the time, nor do I now, as to whether there may be additional evidence that might be adduced at trial.

That was specifically addressed in Pyrrha at paragraph 26: [26] Although counsel for the appellant strenuously suggested on appeal that there might have been additional evidence brought out in a trial, or that experts at trial might have illuminated the deliberations, submissions of counsel are simply not evidence. The appellant conceded that it marshalled its best evidence on the

summary judgment application, and there is no substantiation of any additional evidence or argument that could have been put forward at trial. As noted by the Supreme Court, “[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”: Lameman at para 19. [ 29 ] This is a different case altogether, and I am of the view that, generally speaking, a plaintiff who brings a

summary judgment application and fails is not at risk of the action being dismissed any more than a defendant who brings a

summary dismissal application and fails will have judgment entered against it. Pyrrha gives an example of an exceptional circumstance to that general principle. [ 30 ] As such, I do not think it is appropriate for me to “dismiss” the claims that I did not grant

summary judgment on. If the plaintiff elects to proceed further with respect to those claims, she may well face a res judicata argument, unless there is different or additional evidence placed before the trial judge. [ 31 ] However, that is an issue for the trial judge, and not for me. [ 32 ] Accordingly, I conclude that the form of judgment roll prepared by Mr. Taylor is appropriate, although it could at Ms. Norheim’s option note that: The Plaintiff’s application for

summary judgment with respect to paragraphs 12, 13, 15, 16, 19, 20, 22 and 23 of the Amended Amended Statement of Claim is dismissed. [ 33 ] I trust the formal judgment can now be finalized. Heard on the 14 th day of April, 2016. Dated at the City of Edmonton, Alberta, this 26 th day of April, 2016.

Robert A. Graesser J.C.Q.B.A. Appearances: Jeremy Taylor Field Law LLP for the Plaintiff Erika Norheim Barrister & Solicitor for the Defendant (Najmeya Sana)