Elkow v Sana, 2018 ABQB 1001

Court of Queen’s Bench of Alberta Citation: Elkow v Sana, 2018 ABQB 1001 Date: 20181210 Docket: 0503 13601 Registry: Edmonton Between: Laurie Diane Elkow Plaintiff - and - Najmeya Sana also known as Najmeya Sana Siddiqi also known as Najmeya Siddiqi Sana and Arif Sana also known as Zaeem Arif Siddiqi also known as Arif Siddiqi Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Sulyma _______________________________________________________ Introduction [ 1 ] The events that gave rise to this action occurred between 2004 to 2005 while Ms.

Elkow was the principal of Jackson Heights Elementary School in Edmonton. During that time, Ms. Sana was the mother of four students who attended this school.

[ 2 ] This saga beings with: 1. On April 21, 2004, Mr. Arif Sana (Ms. Sana’s ex-husband) was involved in an altercation with another parent in the parking area in front of the school. The Sanas believed that the altercation had racialized undertones, and both Mr. Sana and the other parent reported the incident to police and the school. While Ms. Elkow would not get involved, Mr. and Ms. Sana developed the belief that she had told the other parent to go to the police, and interpreted this as Ms. Elkow taking sides against them. 2. In late April 2004, Ms. Sana’s daughter reported to Ms.

Sana that while waiting to be picked up after school, it began to rain and the children went inside the school. The children said that they had been told by other staff members (not Ms. Elkow) that they were not permitted to wait inside the school. Ms. Sana believed that this was a message from Ms. Elkow to Ms. Sana, and that she had directed this, with prejudice. 3. There was an interaction between Ms. Elkow and Ms. Sana’s daughter about the rain incident where Ms. Elkow questioned the accuracy of what the children had reported to their mother (about not being permitted to wait inside the school).

There were differing versions about what happened. The daughter claimed that Ms. Elkow spoke to her angrily and suggested she had lied to her mother. Ms. Sana thus developed the belief that Ms. Elkow had “harassed” or “abused” her daughter. [ 3 ] Justice Graesser, in a

summary judgment application, has found Ms. Sana liable for many defamatory publications as alleged in Ms. Elkow’s Statement of Claim. Upon damages being assessed for the publications for which liability has already been found, Ms. Elkow is prepared to withdraw the remaining allegations in her action, or to consent to judgment dismissing the remaining claims. Accordingly, the only issue for determination in this

summary trial is the appropriate quantum of damages. [ 4 ] In Justice Graesser’s decision, he concluded that Ms. Sana maliciously defamed Ms. Elkow in more than 10 publications over more than a year’s time. All were widely distributed and alleged that Ms. Elkow was incompetent, dishonest, ineffective, biased, racist, discriminatory, mentally disabled, abusive, and a criminal who wielded her power unfairly towards children, and particularly minority children, and who conspired with parents to commit crimes against Ms. Sana. Application [ 5 ] The assessment of damages here by a

summary trial procedure is granted and is appropriate pursuant to the present Rules of Court. The Applicant now submits that given the prolonged, severe and malicious nature of Ms. Sana’s conduct, the Plaintiff ought to be awarded a significant amount on account of general, aggravated and punitive damages. Some of the factual findings needed to assess a damages award have already been made by Justice Graesser in his

summary judgment decision. Any remaining facts required by the Court to assess damages are set out in the Affidavit and documentary evidence presented in support of this application. This includes the further Affidavit of Ms. Elkow sworn December 12, 2016. [ 6 ] This action arose out of approximately 20 different letters, emails, statements, signs and leaflets published by Ms. Sana starting in May 2004, continuing to June 2005. Justice Graesser found that while some of the publications were protected by qualified privilege, Ms. Sana was liable for at least 10 discrete incidents of malicious defamation.

He found that by the beginning of June 2004, Ms. Sana’s communications escalated and at that point, her intentions changed and her many publications became motivated by the primary purpose of injuring Ms. Elkow out of malice, spite and animosity. He further found that at this point, Ms. Sana became vindictive and started making a series of publications with the intention of harming Ms. Elkow and her reputation and career. [ 7 ] Justice Graesser goes into great detail of the facts which led him to this conclusion of Ms. Sana’s intentions. He dismissed any allegation by Ms. Sana that Ms.

Elkow had practiced discrimination based on race or religion or any other grounds. He stated there was no evidence of such. [ 8 ] Justice Grasser covered in great detail the defamatory statements made and the allegations of Ms. Sana that Ms. Elkow lied under oath to parents and in front of children from the school and in the courtroom. Also that Ms. Elkow had “played with her [daughters] marks and stopped her from going to an enrichment program”. She also claimed a cover-up (my words). He dismissed those allegations. [ 9 ] I pause here. Ms.

Sana has been unrepresented since August 2017 and appeared as a self-represented defendant in this

summary trial assessment before me. It is significant that Justice Graesser stated “To apply further pressure (on Ms. Elkow) Ms. Sana took the dispute public”. He noted that there was never an apology to Ms. Elkow made by Ms. Sana even up to the point of the

summary judgment application and she remained entirely unrepentant before me. There has never been an apology. I must note that during the whole course of the proceeding before me, Ms. Sana did not address the merits of the Plaintiff’s claims for damages under several heads. Rather, she chose to revisit the merits of the liability judgment and insisted in advising me in detail of the lies she states had been perpetrated by Ms. Elkow throughout.

This, despite the very clear judgment of Justice Graesser rejecting that premise and noting that the various communications of untruthful allegations and lying were malicious and defamatory. Ms. Sana maintained her opposition to those findings, which were not appealed, in the proceeding before me. Indeed, her counterclaim was struck by Justice Gill as disclosing no cause of action and her appeal of that order was struck after she failed to provide security for costs. I am, however, satisfied that she was well aware that the issue before me was only that of assessment of damages. [ 10 ] Ms.

Elkow has had a long and distinguished career as a teacher and school administrator. She has been a teacher since 1980. In 1989, she was promoted to assistant principal and promoted to principal in 1994. She worked as a principal until 2007 when she accepted a position as the EPSB Director of Human Resources and Staff Relations. Her affidavit sworn on March 22, 2017, deposes to various concerns for her personal safety that arose during these events including a number of hang-up telephone calls over the years. Not surprisingly, these events impacted her professional confidence and self-esteem.

She states that she thought of these events every day and was fearful that others might suspect that she was professionally incompetent, racially biased, dishonest, unfair or cruel. This led to further stress and emotional difficulties and the perception that her superiors were suspicious of her. She further sustained physical consequences such as loss of sleep and exacerbation of skin conditions, heightened heart rate, tightness in her chest, and neck and back

soreness. She became and felt alone and isolated. These injuries impacted her family life and how she felt others perceived her. She lostmuch of the joy, interest, satisfaction, contentment and ambition in her career as a principal which led her to accepting a position as acentral office administrator. She feels the publications have limited her opportunities for further career advancement while her peers haveadvanced. She worries that people in the community have not forgotten the publications and she has vivid memories of the difficulties atthat time and during the course of this lawsuit.

Indeed, I find all of the Defendant’s actions struck at the very core of who Ms. Elkow wasand all she had worked so hard to achieve. [11] This affidavit evidence was not challenged by Ms. Sana by cross examination or her own evidence or in her appearance beforeme. Indeed, she presented no evidence in this assessment. I find that given that these facts are unchallenged and the only evidence beforeme is the Plaintiff’s description of the effect of the defamatory actions contained within her affidavit. Ms. Elkow’s evidence is un-contradicted and thus true.

I find the consequence of the defamatory action she outlined to be facts for this assessment. Points of Law [12] Counsel for Ms. Elkow prepared a comprehensive and extensive brief of law and argument. The principles that apply are asfollows: As stated by the Supreme Court in Hill v. Church of Scientology, commenting on the impact of publication of a defamatory statement: It would be hard to imagine a more difficult situation for the defamed person to overcome.

Every time that person goes to theconvenience store, or shopping centre, he will imagine that the people around him still retain the erroneous impression that the falsestatement is correct. A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth andspread its cancerous evil. The unfortunate impression left by a libel may last a lifetime. Seldom does the defamed person have theopportunity of replying and correcting the record in a manner that will truly remedy the situation. Hill v. Church of Scientology ofToronto (SCC), [1995] S.C.J.

No. 64 at paras 165-166 [13] Defamation and a finding of defamation means that the defendant has intentionally published injurious, false statements.Serious defamation touches the core attributes of the plaintiff’s personality. The court should strive to achieve restitution in integrum. Adamages award should provide solatium, vindication and compensation.

Rutman v Rabinowitz, 2016 ONSC 5864, at para 220, Hill,supra at para 170, Best v Weatherall, 2010 BCCA 202 at paras 45-46. [14] Damages for defamation are designed to serve as an outward and visible sign of vindication, with a view to restoring thePlaintiff’s reputation. Further, the plaintiff should be compensated for the wrong suffered and the award should take into account thedistress, hurt and humiliation which the defamatory publication has caused.

Raymond E Brown, Brown on Defamation, at 25.1 –25.3(1). [15] In Hill, the Supreme Court of Canada outlined the general legal principles that apply in determining damages for defamation,including general damages, aggravated damages, and punitive damages. [16] In Hill, the Supreme Court directed that the following factors be taken into account in assessing general damages:

a) The plaintiff s position and standing;

b) The nature of the libel;

c) The mode and extent of the publication;

d) The possible effects of the libel statement upon the life of the plaintiff; and

e) The absence or refusal of an apology. Hill, supra at para 182. [17] These factors may have differing weight depending on the nature of the case: Rutman, supra at para 216. [18] Here, the Plaintiff, at the time of these events, had a solid public professional stature. Justice Graesser referred to the factshere as being strikingly similar to those in McKerron v Marshall, [1999] OJ No. 4048 (Sup.

Ct.), in which the court explained: One of the evils of defamation is that even with objective reporting there are those readers who will give some credence to theaccusation even if it is entirely without foundation Even fair minded parents who are told that the teacher who is responsible for theirchildren has been accused of being incompetent, unstable and abusive will have some concern about the classroom environment about arisk their children may be subject to. Indeed I am convinced that is what happened in one or more cases in the present situation.

As several of the professional educators who testified at trial told the Court, in any given year in any given class there will be studentswho will have problems. In most cases parents will have faith and trust in the teacher and parents and the teacher will work together toattempt to resolve these problems. However, if the parents have been told that that teacher is incompetent, unstable and abusive therelationship of trust and confidence will be shaken or completely broken.

There may then be an understandable though unjustifiedconclusion on the part of the parents that the problems being experienced by the student are in fact the fault of the teacher. The temptation to place credence in falsehood will be all the greater when the issue involves children, children who are alleged to be atrisk, and when the speaker of the falsehoods appears on the surface to be an intelligent, community spirited and well motivated parentwho would seem to have no reason to dissemble and nothing personal to gain from his defamation Such may have appeared to be thecase even to a fair minded observer....

McKerron v Marshall. [1999] O.J. No. 4048 (Sup. Ct.) at paras 80-82. [19] It is no small matter that the false allegations involved allegations of impropriety against children. This by an individualwhose life work was to be an educator of children. Without doubt, the malicious defamatory campaign tarnished her reputation and the

Plaintiff remains severely affected by these actions. [ 20 ] The defamatory campaign was sustained, long lasting and severe. The content of the defamatory publications were egregious and included baseless allegation of dishonesty, discrimination, racism, child abuse, mental disorders, incompetence and criminality. These statements were widely published as her campaign involved communications to individuals, households and businesses in the vicinity of the Jackson Heights School and Ms. Elkow’s home. Such publications were also sent to Ms.

Elkow’s superiors on multiple occasions and displayed on a busy, public roadway in front of the school. I consider her conduct at the time to have been aimed at obtaining the widest publication of her libel and to cause the gravest harm. These are three of the factors that I must consider as directed by Hill . The fourth, I have already found as a fact. That is the effects of the libels on the Plaintiff. Finally, the fifth is the absence and refusal of an apology, which I have already stated lasted from the beginning of this litigation to her submissions before me recently. This, in the face of the denials of Ms.

Elkow of these allegations and the very clear judgment of Justice Graesser, in which he found numerous defamatory acts. [ 21 ] The Plaintiff submits that on these Hill factors, the award of general damages should be high. He notes that the award in McKerron for general damages was $100,000 and submits that a similar general damage award of at least $100,000 to $150,000 is entirely appropriate. [ 22 ] Ms. Sana made no representations regarding the law that applies to an assessment of damages or on facts that related to the five Hill factors other than as I’ve described above.

I have considered those factors and am struck that each of those factors here carry great weight as affecting the Plaintiff’s position and standing. I have considered the nature and extent of the publications and the effects of the libel upon the Plaintiff and the refusal of apology throughout this long litigation. In my view, a significant general damages award is warranted and I find the appropriate quantum of general damages is $150,000. [ 23 ] Ms. Elkow further claims aggravated damages in the range of $50,000 to $100,000.

As stated by the court in Hill , the following factors are relevant to this head of damages: There are a number of factors that a jury may properly take into account in assessing aggravated damages. For example, was there a withdrawal of the libellous statement made by the defendants and an apology tendered? If there was, this may go far to establishing that there was no malicious conduct on the part of the defendant warranting an award of aggravated damages.

The jury may also consider whether there was a repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, a prolonged and hostile cross-examination of the plaintiff or a plea of justification which the defendant knew was bound to fail. The general manner in which the defendant presented its case is also relevant. Further, it is appropriate for a jury to consider the conduct of the defendant at the time of the publication of the libel.

For example, was it clearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the plaintiff? [emphasis added]. Hill , at paras 183, 189 and191 . [ 24 ] As summarized in Hill , aggravated damages “represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant”. Rutman; Hill . [ 25 ] Justice Graesser has already found as a fact that this Defendant was motivated by actual malice and continued throughout to allege that her publications were truthful and the Plaintiff lied.

She not only has not apologized or expressed remorse, she has continued to the point of this hearing to maintain that her allegations and publications were true and that Ms. Elkow and others were lying. Justice Graesser found that Ms. Sana maliciously defamed Ms. Elkow on more than 10 discrete occasions, over a period of more than a year. Ms. Sana persisted for more than a decade in pursuing a plea of truth or justification, and Ms. Sana’s counsel subjected Ms. Elkow to prolonged questioning for discovery in an attempt to support that unfounded plea. Ms.

Sana has never retracted or apologized for her defamatory publications. These are clearly aggravating factors and in my view, an aggravated damages award of $100,000 is appropriate. [ 26 ] The last head of damages sought is that of punitive damages. Punitive damages are appropriate where the defendant’s misconduct is “so malicious, oppressive and high-handed that it offends the court’s sense of decency.” While general and aggravated damages focus on the harm caused to the plaintiff and the plaintiff’s losses, punitive damages focus on the character of the defendant’s conduct.

Hill at para 196 ; Rutman at para 213 . [ 27 ] Such damages are not compensatory in nature, but are designed to punish the defendant and operate as a deterrent to the defendant and others from future similar conduct.

They are appropriate where general and aggravated damages would not serve to sufficiently achieve the goals of punishment and deterrence alone: Hill at para 196 . [ 28 ] In order to effectively protect a person's reputation from the publication of false and injurious statements, punitive damages may be required: “[t]he most effective means of protection will be supplied by the knowledge that fines in the form of punitive damages may be awarded in cases where the defendant’s conduct is truly outrageous”: Hill at para 199 . [ 29 ] Punitive damages permit a court to censure a defendant’s conduct in strong terms, to send a message to others who may try to take a similar path: Rutman at para 272 . [ 30 ] I am obliged to focus on the character of the Defendant’s conduct.

I am of the view that her misconduct was so malicious, oppressive and high-handed that it offends the Court’s sense of decency. [ 31 ] In my view, this statement applies to each one of her actions as identified by Justice Graesser and the whole of her conduct throughout. I am of the view that the general and aggravated damages I have ordered would not serve to sufficiently achieve the goals of punishment and deterrence alone and that punitive damages are required to censure Ms. Sana, provide an effective deterrent to her and others that such conduct is unacceptable.

I take into account the value of damages I have awarded above and Ms. Sana’s own statements of impecuniosity and award punitive damages in the sum of $10,000. [ 32 ] Costs may be spoken to. Heard on the 20 th day of April, 2018.

Dated at the City of Edmonton, Alberta this 10 th day of December, 2018. D.A. Sulyma J.C.Q.B.A. Appearances: Jeremy L Taylor of Field LLP for the Plaintiff Najmeya Sana, Self-Represented