Rizvi v Syed, 2016 ABQB 400

Court of Queen ’ s Bench of Alberta Citation: Rizvi v Syed, 2016 ABQB 400 Date: 20160713 Docket: 1301 08053 Registry: Calgary Between: Shabbir Rizvi, Mansoor Naqvi, Khurram Raza, Agha Suhail Haider, Syed Ali Zulqarnain Baqar and Hussaini Association of Calgary Plaintiffs - and - Naweed Imam Syed, Hassan Nawab Rizvi, Jamal Kazmi and Sadaqat Hussain Shafi Defendants _______________________________________________________ Reasons for Judgment of J.T.

Prowse , Master in Chambers _______________________________________________________ [ 1 ] The plaintiffs (the “Rizvi Group”) claim damages for defamation against the defendants (the “Syed Group”) arising from events involving the Hussaini Association of Calgary (the “Association”).

[ 2 ] The Rizvi Group says that they were defamed by comments contained in: (

i) the affidavit of Imam Syed filed in an earlier lawsuit between the parties (the “Syed Affidavit”) and, (ii) two emails authored by the defendant Hassan Rizvi (one of the Syed Group). [ 3 ] The defendants have brought applications for

summary dismissal pursuant to Rule 7.3 of the Rules of Court. [ 4 ] The defendants argue that the statements contained in the Syed Affidavit are protected by the absolute privilege accorded to pleadings filed in a lawsuit. [ 5 ] With respect to the Hassan emails, the defendants argue that they are protected by qualified privilege. Additionally they say there is no evidence that the emails were published. [ 6 ] For the reasons that follow, I decline to summarily dismiss the action.

Chronology of events [ 7 ] The Hussaini Association was founded in 1982 and has been active in both the Islamic and the general Calgary community since that time.

The Association is a benevolent organization and a registered charitable society with aims and objectives designed to promote the teachings of Shia Islam and further fellowship and foster respect toward other religious organizations. [ 8 ] The Association is governed by its constitution and by-laws which outline how the Association is to be governed, how its trustees and executive members are to be elected, and the powers and duties of both bodies. [ 9 ] The Syed Group were trustees of the Association in 2010.

They purported to resign at that time but say that they withdrew their resignations when the then chairman of the board of trustees refused to accept them. They assert that, as there was no valid election of other trustees since then, they remained trustees during the events leading to this litigation. [ 10 ] The Rizvi Group were executive members of the Association. In early 2013 they called elections for the positions of trustees and of executive members. [ 11 ] The Syed Group objected to the upcoming elections and commenced a Queen's Bench Action (the “first action”) seeking: (

i) a declaration that the members of the Syed group were the current trustees of the Hussaini Association. (ii) a declaration that the executive comprised of the Rizvi group was validly dissolved as of January 13, 2013. (iii) an order that the Rizvi Group immediately surrender to the Syed Group any and all keys and materials which are the property of the Association and cooperate with the Syed Group in the transfer of the control of the accounts of the Association to the Syed Group. (iv) a declaration that any election occurring on January 27, 2013 would be invalid. (

v) A ruling that the Syed Group is entitled to call an election for a new executive. [ 12 ] On January 24, 2013, the Syed Group obtained an ex-parte order to prevent elections that were scheduled to be held on January 27, 2013. [ 13 ] This ex parte order was subsequently stayed on the application of the Rizvi Group on January 28, 2013. Following this the Rizvi Group rescheduled the elections to take place on February 24, 2013. [ 14 ] On February 22, 2013 the Syed Group brought another injunction application on notice to the Rizvi Group.

This injunction application was dismissed. [ 15 ] New elections took place on February 24, 2013 and a new board of trustees was elected. Two of the four members of the Rizvi Group were elected to continue in executive roles. [ 16 ] On April 3, 2013 the Syed Group filed another injunction application in the first action seeking to prevent the Rizvi group from managing the Association. In support of that application they filed the Syed Affidavit. Here is the portion of that affidavit which the Rizvi Group says is defamatory: 15.

Recently, and specifically over the last couple of years, I have become more and more concerned with the direction the Executive as elected in October 2010, being the named individual Respondents in these proceedings, have taken the Association. There is a strong belief held by myself and a large number of other founding and senior members, that the Association is straying from its mission statement and fundamental "Aims and Objectives" as set out in Articles 2 and 3 of the Constitution.

We believe that it is in danger of becoming much more radical, extremist and intolerant to both its own, more moderate members, and to the community at large. 16. Over the past two years, the executive members have intentionally invited speakers who incited hatred towards other communities and have attempted to force our local community members to adopt Sharia Law - inconsistent with our Canadian multicultural values and the law of the land.

Moreover, these speakers on numerous occasions have promoted foreign terrorist organizations from the pulpit in attempts to instill extreme Jihadi ideology in our youth's mind. These values are inconsistent with our constitution and in contrast to widely held views of our community members. Moreover, many of the members are of the view that the Respondents and their supporters are promoting "Jihadi ideology" among youth.

The Respondents and their supporters have been holding camps for our youth in the mountains with "foreign trained" preachers and are preparing a large contingent of youth to spend several summer months in Iran.

[ 17 ] The next communications which the Rizvi group say are defamatory are two emails authored by the defendant Hassan Rizvi, an individual aligned with the Syed group. The Syed Group says that Hassan was a trustee of the Association at the time. Those emails stated as follows: In the May 26, 2013 email of Hassan: Regarding inviting the police or law enforcement agencies to the center, we are glad that they are finally paying attention to our concerns towards the rise of hardliner tendencies in our community.

The Kubza Group who claimed to be followers of our beloved Imam (AS) should see for themselves how they have captured Hussaini through unlawful and bogus election. We are not sure whether it is the guilty conscious or is meant to cover up their tracks, it is nevertheless a good step. We live in Canada and will do everything to protect and safeguard our beloved country from the insult of hardliners: This is always good to nip it in the bud before an unfortunate incidence happens to haunt our community and the society as a whole.

We urge everyone in our community to be vigilant to ensure that we do not breed and feed a ‘lone wolf'. We too will keep the law enforcement agencies abreast with all those activities, which we deem to be inconsistent with our Canadian values. In the June 2, 2013 email of Hassan: Regarding the usage of Term ''Terrorism" - this word has never been mentioned or described by anyone except the Kubza group. They have played this trumpet for a few weeks to misguide and mislead a few naive members of our community but enough already. Such was the politics of Muawiya, and it is he who they follow and not our Imams (AS).

They are the one who have coined this term for "themselves". Frankly, anyone who terrorizes our women, children and other fellow members of the community and uses abusive language and demeanor, "hijacks" the community center etc. deserves to be defined as a "terrorist". Congratulations to you the Kubza group - from now onwards, we shall address you with your preferred title of the "Terrorists". [ 18 ] On July 3, 2013 the Plaintiffs commenced this action, which asserts that the Syed Affidavit and the Hassan emails quoted above are false, malicious and defamatory. The

summary dismissal application regarding the Syed Affidavit [ 19 ] The Syed Group submits that the part of the action based on the Syed Affidavit should be summarily dismissed because the contents of the Syed Affidavit are subject to absolute privilege.

The defence of absolute privilege [ 20 ] The Syed Group submits that the common law defence of absolute privilege provides complete immunity for defamatory expression and that this defence applies to all pleadings and evidence produced for proceedings before a regularly constituted judicial tribunal, including a court of superior jurisdiction such as the Court of Queen’s Bench of Alberta. [ 21 ] The Rizvi Group replies that there is a limitation to absolute privilege expressed in the following quotation from Liboiron v.

Majola , 2007 ABCA 18 at para 10 : Even if a statement is defamatory, it may be protected by absolute privilege. For absolute privilege to apply, the statement must "take place during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings": Raymond E. Brown, The Law of Defamation in Canada , 2nd ed., looseleaf (Scarborough: Carswell, 1999) vol. 2 at para. 12.4(1). See also Patrick Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander , 9th ed. (London: Sweet & Maxwell, 1998) at para. 13.1.

The purpose of the absolute privilege defence is to ensure that those involved in the administration of justice, including litigants, witnesses, advocates and judges, can speak freely without fear of an action in defamation; it is not intended to protect those who have made malicious statements : Brown at para. 12.4(2); M. (M.J.) v. M. (D.J.) , 2000 SKCA 53 , 189 Sask. R. 303 (Sask. C.A.) at para. 6 ; Dechant v. Stevens , 2001 ABCA 39 , 281 A.R. 1 (Alta.

C.A.), at para.33. (emphasis added) [ 22 ] The underlined portion of the above quote is not as broad as it might seem at first glance. [ 23 ] Generally speaking, absolute privilege does protect those who make malicious statements in court proceedings. See paragraph 12.4(1) of Raymond E.

Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Scarborough: Carswell, 1994) vol. 2, cited in the Liboiron decision, which states that absolute immunity applies to statements made in judicial proceedings and: … it makes no difference that the words may be totally and knowingly false and spoken mala fide and with actual malice [ 24 ] What the underlined portion of the above quote is meant to remove from the protection of absolute privilege are statements which are malicious in that, while they may have been made in the context of litigation, were not made during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings. [ 25 ] A hypothetical example of this more narrow type of malice is in the following quote from the judgment of Lord Cockburn in Seaman v.

Netherclift , (1876), 2 C.P.D. 53, where, after noting that absolute privilege applies to statements notwithstanding that they may be malicious, he observed: Or if a man when in the witness-box were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked.: Were you at York on a. certain day? and he were to answer: Yes, and A.B. picked my pocket there; it certainly might well be said in such a case that the statement was altogether dehors the character of witness, and not within the privilege. (emphasis added) [ 26 ] And so statements of a witness may be malicious and still be subject to absolute privilege, provided they are made in circumstances connected with the advancement of the litigation.

[ 27 ] The Seaman case is quoted with approval by the Saskatchewan Court of Appeal in Duke v. Puts , 2004 SKCA 12 , where the narrow exception to absolute privilege was expressed to apply to “statements not made with reference to the person being complained of, but gratuitous irrelevant statements against a third party”. [ 28 ] Again, another example of a statement made in the context of legal proceedings, but not in fact intended to advance those proceedings, is found in in the Liboiron decision itself. [ 29 ] In Liboiron an RCMP officer stopped the defendant for speeding and issued a voluntary payment ticket.

When the defendant made payment (effectively a guilty plea) he enclosed a letter to the Clerk of the Provincial Court implying that the RCMP officer was acting out of racial bias in issuing the ticket to him. The RCMP officer sued for defamation and was successful at trial.

On appeal the defendant argued that the trial judge erred in failing to consider that the letter was sent in the context of a judicial proceeding, Majola's guilty plea to the speeding charge, and was therefore protected by absolute privilege. [ 30 ] The Court of Appeal observed that to qualify for absolute privilege the letter must fall within a recognized step of the judicial proceeding.

It held that “in other words, it must take place during, incidental to, and in the processing and furtherance of the proceeding” and that: To enter Majola's guilty plea under s. 36, the court clerk needed only the offence notice and payment. Majola's letter was not required, did not directly or indirectly fit within the process prescribed by s. 36, and did not further the proceedings. Nor can the letter be characterized as an essential step, as it was not necessarily incidental to the process prescribed by s. 36.

Consequently, the letter is not protected by absolute privilege. [ 31 ] A case cited with approval in Liboiron is M.(M.J.) v M. (D.J.) , 2000 SKCA 53 , where the Saskatchewan Court of Appeal allowed a husband’s defamation claim to proceed to trial notwithstanding his wife’s claim of absolute privilege. [ 32 ] In M. (M.J.) , supra , the wife had complained to the Law Society about the conduct of her husband’s lawyer, but had included in that complaint letter an irrelevant allegation against her husband (that he had sexually assaulted their son). [ 33 ] Is the Syed Affidavit protected by absolute privilege, or was it intended for a purpose other than advancing the first action? [ 34 ] The Rizvi Group argues, in essence, that the Syed Group did not intend to use the Syed Affidavit to advance the first action.

Instead, they argue, its purpose was simply to be used as a vehicle to shelter defamatory comments about them. [ 35 ] In support of this argument the Rizvi Group points out that the pending injunction application, for which the affidavit was ostensibly filed, was adjourned sine die and has not proceeded for the last 38 months. [ 36 ] Applications are often abandoned. The party bringing the application may have second thoughts, either about the chances of success or whether it is financially prudent to proceed.

I do not think one should remove the cloak of absolute privilege from an affidavit filed in support of an application, just because the application did not proceed. [ 37 ] Another potential argument which could be advanced that the statements were not in furtherance of judicial proceedings is that the challenged paragraphs in the Syed Affidavit dealt not so much with the dry technical aspects of the litigation (what the constitution said about elections, whether the Syed Group trustees had resigned or not resigned) but rather were focussed on what the Syed Group considered to be the underlying merit and public policy behind their efforts to prevent the election of unsuitable candidates to the leadership of the Association (and I make it clear here that I am making no comment on the suitability of any of the prospective candidates). [ 38 ] It is very common in pleadings and evidence for parties to put forward what they perceive to be the public policy reasons behind the justness of their claims, and provided those assertions do not wander into completely extraneous matters, they are covered by absolute privilege. [ 39 ] The general topic of the paragraphs complained of in the Syed Affidavit is the subject of the first action, namely the proposed upcoming elections scheduled by the Rizvi Group and the suitability of candidates for the leadership of the Association.

On the face of it, the statements contained in the Syed Affidavit were intended for the purpose of advancing the first action, and therefore not ‘malicious’ within the meaning of the exception to privilege set out in the Liboiron decision. [ 40 ] However, the Rizvi Group has a third argument. They ask how the Syed Affidavit was being used in the processing and furtherance of the first action by being sent to members of the Association.

The absolute privilege afforded to pleadings can be lost if they are used outside of the litigation. [ 41 ] In G.(R.) v Christison , 1996 CarswellSask 666 (Q.B.) a mother was seeking custody, and falsely accused the father’s new wife of abusing the children. The mother’s counsellor supported the allegations in reports filed in court or prepared for use in court. The absolute privilege accorded to these reports was lost when they were sent to others, such as the police, social services department and certain doctors.

The court observed at para 66: Insofar as the first two of [the counsellor’s reports] were tendered in Unified Family Court variation hearings, and the other two were prepared in contemplation of using them in future hearings, [the counsellor] unquestionably enjoyed an absolute privilege. On the other hand, it is also absolutely inarguable that the privilege was lost when [the counsellor] published them outside the boundaries of the court proceedings. [ 42 ] Further examples of the loss of absolute privilege through publication outside of the legal process are found in Raymond E.

Brown, Brown on Defamation, 2nd ed., looseleaf (Scarborough: Carswell, 1994) vol. 3 at para. 12.4(4)(d)(iii)(

B) as follows: Privilege was lost when a copy of a complaint against a specific defendant was posted on a law firm’s website

The privilege covering a letter sent to opposing counsel advising of an intended motion and the reasons for it was lost when copies weresent or shown to persons who had no direct interest in the litigation [43] The Rizvi Group asserts that immediately prior to serving the Syed Affidavit on the plaintiffs’ counsel, the Affidavit wasdistributed to members of the Association by the defendants. [44] The Syed Group responds that Syed did not distribute a copy of his Affidavit, in whole or in part, to any person. [45] It is not my function to make a final ruling on the issue of absolute privilege, but simply to ascertain whether the Rizvi Grouphas an arguable claim that the Syed Affidavit was published outside of the first action for reasons not directly related to the furtheranceof the first action.

In my view, the Rizvi Group has such an arguable claim. In other words, I am unable to state that the Syed Group ishighly likely to have the action based on the Syed Affidavit dismissed under the doctrine of absolute privilege. [46] Consequently, I decline to dismiss the action insofar as it is based on the Syed Affidavit. Qualified privilege as it pertains to the Hassan emails [47] In my view, the question of whether the Hassan emails are protected by qualified privilege is not suitable for

summarydetermination. [48] The doctrine of qualified privilege was described in Hill v. Church of Scientology of Toronto, (SCC), 1995CarswellOnt 396, [1995] 2 S.C.R. 1130 at para.146 , as follows: Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. As LordAtkinson explained in Adam v.

Ward, [1917] A.C. 309 (H.L.), at p. 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 so made has a corresponding interest or duty to receive it.

Thisreciprocity is essential. [49] Assuming Hassan was a trustee at the relevant time, the question of whether a trustee at an association such as the Associationhad a moral duty to communicate to members of the Association on topics such as those contained in the Hassan emails, and whether themembers of the association had a duty to receive such communications is a difficult, intricate and subtle enquiry suitable for trial but notfor

summary determination. [50] The enquiry will be based not merely on written documents such as the constitution and bylaws of the Association, but also onthe past conduct and practices of trustees of the Association and its members. [51] Further, Hassan’s argument for qualified privilege is based on his status as a trustee of the Association when the emails weresent. That status is not clear and needs to be resolved at trial.

There is not sufficient evidence before me that I can conclude that it is‘highly likely’ that Hassan will be found to be a trustee at the relevant time. [52] Finally, even if qualified privilege exists, it is subject to be defeated if the statements in question were made maliciously. Thatinquiry as well is complicated and nuanced and suitable for determination at trial, and not for

summary disposition. The evidence beforeme is not sufficiently clear that I can arrive at a ‘highly likely’ conclusion with respect to malice. [53] Consequently, I decline to dismiss the action based on the Hassan emails based on qualified privilege. Publication of the Hassan emails [54] Hassan argues that the action based on the Hassan emails should be dismissed due to lack of proof of publication. I will quotefrom his argument in that regard: Specificity in pleadings in defamation actions is particularly important. The requirements for defamation pleadings were reviewed byRawlins J. in Cooper v.

Hennan, 2005 ABQB 709 at paragraphs 18 and 19. Material facts in a defamation action must contain the details of the publication, the words published by the defendant, the time, placeand manner of publication, and to whom the publication was made. To plead publication effectively, the statement of claim must allegepublication of the defamatory expression to at least one named or identifiable person other than the plaintiff. Evidence that an email was sent does not establish receipt by the parties concerned and does not constitute evidence of publication fromwhich a jury could find that publication had occurred.

Gaskin v. Retail Credit Co., (ON CA), 1963 CarswellOnt 239,43 D.L.R. (2d) 120 (Ont.C.A.) [55] Hassan argues, since there is no evidence of publication, and in particular no evidence to whom the emails were sent andreceived, the claim against him based on his emails should be summarily dismissed pursuant to Rule 7.3. [56] The statement of claim asserts that the emails were published by being sent to a large number of the members of theAssociation, without naming the recipients by name. [57] In Hassan’s affidavit in support of his

summary dismissal application, Hassan says that “he did not send the emails out on

behalf of anyone other than myself” which is arguably an acknowledgment that he sent them out, but he does not identify to whom they were sent. [ 58 ] So far as naming the recipients, Hassan’s authorities themselves state that the recipients must be at least one named “or identifiable” person, so that a name is not necessary. I believe that the reference in the statement of claim to a large number of the members of the Association is sufficient, but even if it is not, Hassan has not brought an application to strike without evidence under Rule 3.68. [ 59 ] Hassan’s application is a

summary dismissal application under Rule 7.3 and he has not provided evidence that the emails were not published. Hence no onus is placed on the Rizvi Group to prove publication in order to defeat the

summary dismissal application. [ 60 ] Accordingly I decline to allow Hassan’s application to summarily dismiss the action insofar as it relates to the emails due to alleged lack of proof of publication. Conclusion [ 61 ] For the reasons set out above, I decline to summarily dismiss the action. Costs [ 62 ] If the parties cannot agree with respect to costs flowing from this decision they may approach me for a ruling in that regard. Heard on the 23 rd day of June, 2016. Dated at the City of Calgary, Alberta this 13 th day of July, 2016. J.T. Prowse M.C.C.Q.B.A. Appearances: Byron W.

Nelson McGuigan Nelson LLP for the Plaintiffs/Respondents John C. Anderson Dawe Law Office for the Defendants/Applicants