Giesbrecht v Prpick, 2024 ABKB 0051

Court of King’s Bench of Alberta Citation: Giesbrecht v Prpick, 2024 ABKB 0051 Date: 20240126 Docket: 1608 00404 Registry: Medicine Hat Between: Randy Giesbrecht, Robert Hazelaar and Shanon Simon Plaintiff - and - Danica Prpick Defendant Corrected judgment: A corrigendum was issued on February 2, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Justice N.E. Devlin _______________________________________________________ I. Overview

[ 1 ] The Town of Redcliff is a small community of approximately 5,000 residents, situated adjacent to the city of Medicine Hat. The Defendant, Ms. Prpick, has had a long-running and litigious dispute with Redcliff, its employees, and its former elected officials. This quarrel stemmed from her resentment over a financially troubled real estate development [“the Debut Project”] and has blossomed into an obsessional quest to expose supposedly wide-ranging wrongdoings in Redcliff’s operations. [ 2 ] In the course of her agitations, Ms.

Prpick sent a letter to the RCMP, copying a lengthy list of public officials and members of the media, headed with the subject line “Organized Crime in Redcliff Alberta” (the “Organized Crime Letter”), alleging a spate of corruption and criminal conduct in Redcliff’s administration. [ 3 ] The three Plaintiffs have all been closely associated with Redcliff in both elected political and public service staff positions. They have sued Ms.

Prpick for defamation, alleging that the allegations of criminality in Organized Crime Letter refer to them, are obviously defamatory, and constitute part of a years-long campaign by Ms. Prpick to smear their reputations. [ 4 ] The Plaintiffs also allege that Ms. Prpick libelled them in an email sent to a lending officer at the Bank of Montreal. This second allegedly defamatory missive (the “BMO Email”) stated that Ms. Simon and the other Plaintiffs had engaged in unethical and illegal conduct that damaged Ms. Prpick and her commercial interests. [ 5 ] For her part, Ms.

Prpick vigorously defends against the claim. She argues that the Organized Crime Letter does not refer to any of the Plaintiffs individually in an identifiable manner, is protected by qualified privilege, was fair comment, and is also true. [ 6 ] For the reasons that follow, the action is allowed, a permanent injunction barring Ms. Prpick from defaming the Plaintiffs further is imposed, and damages are awarded as specified. II. The parties [ 7 ] Randy Giesbrecht has lived in Redcliff since 1980 and worked for the town for nearly 30 years.

His career culminated in a twenty-one-year term as Municipal Manager from 1987 to 2008. He retired a year later. [ 8 ] Robert Hazelaar has lived in Redcliff for almost 60 years. He was an active and well-known businessman in the community and served as a municipal councillor for nine years, before twice being elected Mayor, serving the community in this capacity from 2007 to 2013. [ 9 ] Shanon Simon has lived in the Redcliff area since 1989 and has worked for the town since 1994.

In those 30-years, she has held numerous positions, including Municipal Secretary, Manager of Legislative Services, Director of Legislation and Development, and Acting Municipal Manager. [ 10 ] Danica Prpick was raised in a farming family in Saskatchewan. She attended university in Regina and obtained degrees in the humanities and education. She further completed a Master’s in Administration and holds financial planning designations. It was evident in her testimony that she takes pride in her personal financial responsibility and integrity.

She is an intelligent, hard-working, and entrepreneurial individual. [ 11 ] Ms. Prpick has been married to her husband, an RCMP officer, for 30 years. They have resided in a number of places in Alberta, and have been active members in every community they have called home. They moved to Redcliff when her husband was transferred to the local detachment, where he served for 17 years. In 2005, the couple began the Debut Project. They hoped to complete it in three years, but it ultimately took much longer. [ 12 ] Ms.

Prpick testified that she stopped working after the couple’s third child was born, well into the Debut Project. She testified that she has been unable to work since 2008 as a result of the “exorbitant” amount of time it has taken to deal with the development issues, the Debut Action (as hereinafter defined), and this subsequent defamation action. Her evidence revealed that there has been other collateral litigation regarding the Debut Project. [ 13 ] It is clear that the Debut Project was meant to provide Ms. Prpick’s family with financial security.

Instead, it became a financially devastating legal nightmare that has profoundly impacted her emotional well-being. At some point after 2011, Ms. Prpick began to be convinced that many things were amiss in Redcliff. She has spent more than a decade trying to investigate, publicize, and litigate the nebulous state of wrongness in Redcliff that she holds responsible for the difficulties that she and others have experienced. Everything that has occurred leading to this lawsuit is a product of this mindset, which has become troublingly intense and conspiracy based. III. Background to the defamation claim [ 14 ] Ms.

Prpick and her husband undertook a residential development project in Redcliff in the mid-2000s. Operating through their company, Debut Developments, they acquired land, proceeded through the development process, and built two multi-unit residential townhouse complexes that faced each other on the 100 block of 3 rd Street NE. While the Debut Project was completed and sold, it resulted in significant losses. Debut Developments filed suit in 2011 against Redcliff, along with Messrs. Hazelaar and Giesbrecht, over the project’s difficulties (the “Debut Action”). [ 15 ] Around this time, Ms.

Prpick also took an intense interest in the municipal affairs of Redcliff. She either commenced or was actively involved in a number of public campaigns on various issues, which culminated in her disseminating widespread allegations of incompetence and malfeasance in the town administration. Through the course of this trial, it became apparent that she had conducted an exhaustive examination and audit of town records, including Council meeting minutes, over a prolonged period of time.

[ 16 ] Ms. Prpick also made two reports to the RCMP about the Plaintiffs, one before and one after the Organized Crime Letter. She subsequently launched complaints about those investigations and, in one instance a complaint about a complaint investigation, all of which have been resolved against her position. [ 17 ] Subsequent to delivery of the Organized Crime Letter and the BMO Email, the Plaintiffs launched this action, which was joined for procedural purposes with the Debut Action. [ 18 ] When the matters came to trial in November 2022, Ms. Prpick, on behalf of Debut Developments, sought an adjournment.

The adjournment was denied and the Debut Action consequently dismissed for reasons reported at Debut Developments Incorporated v the Town of Redcliff , 2022 ABKB 809 . The defamation action proceeded to trial. It was heard over eighteen days between November 2022 and October 2023. Ms. Prpick has been self represented throughout. Acting with her husband’s assistance, she proved to be an effective and able participant in the litigation process. IV. The Allegedly Defamatory Correspondence [ 19 ] Despite this dispute having a broad and complex genesis, the basic facts are simple. Ms.

Prpick is being sued over two pieces of correspondence. A. The Organized Crime Letter [ 20 ] The first allegedly defamatory publication was the Organized Crime Letter written by Ms. Prpick and sent on January 27, 2015. It was addressed to the RCMP Southern Alberta District and copied to the Premier, the Minister of Municipal Affairs, the Town Manager of Redcliff, and reporters at the CBC, Medicine Hat News, Cypress Courier, and CHAT TV – a local cable access channel. [ 21 ] The subject line of the Organized Crime Letter read: “RE: Organized Crime in Redcliff Alberta”.

It began as follows: A group of citizens and business owners in Redcliff have uncovered what appears to be an organized crime [sic] occurring in Redcliff. Evidence includes a double set of books; an illicitly obtained revenue stream from public coffers; false registries at land titles; forgery; creating false documents; misappropriation of public money; misappropriation of grant money (both federal and provincial); third party land sales/registries; and other fraudulent activity. Those who been involved in perpetrating these violations are public officials in the Town including administration and councillors.

These infractions date back as far as three decades and amount to millions of dollars in missing public funds. .… [ 22 ] The Organized Crime Letter went on to note that a ministerial inquiry was conducted into Redcliff’s affairs but dismisses it as insufficient and ineffective. It then notes that a group of citizens took some of the evidence earlier mentioned to local RCMP, seeking an investigation by the RCMP’s Financial Integrity division. The Organized Crime Letter further states that: The sheer magnitude of documents and evidence supporting criminal activity is massive.

There are many citizens and business owners who are in possession of such materials and the numbers appear to be mounting. [ 23 ] The Organized Crime Letter indicates that this group was “disgruntled” at the RCMP’s conclusion that the matter would not be criminally investigated because it is in the nature of a civil dispute. The Organized Crime Letter notes that neither the Constable with carriage of the matter, nor the local Crown Attorney’s office, requested additional information despite only being provided with a “small sampling of evidence”.

The Organized Crime Letter mentions that the matter had been deemed insufficient to proceed with by the police. [ 24 ] The Organized Crime Letter then notes that a complaint was filed with the RCMP Commissioner in regard to the investigating constable and his supervisor.

It goes on to state that “the confidence of the local RCMP to do an impartial and thorough investigation has been shattered.” Purportedly speaking on behalf of “the group”, the Organized Crime Letter requests that a member of the Financial Integrity division be assigned to take statements from the members of the group and review the evidence. [ 25 ] The Organized Crime Letter is signed solely by Ms. Prpick, lists her email for contact, and has her return address on it. Ms. Prpick agrees that she wrote and sent the Organized Crime Letter to the individuals listed. [ 26 ] Ms.

Prpick campaigned actively in 2015 for further investigation into the misfeasance she perceived in Redcliff. This included writing to a Professor of Psychology at York University, who apparently had appeared in a Fifth Estate documentary about individuals who had difficulty with their local municipalities. In that letter she stated that there “are dozens of us that can provide documents which can substantiate the claims of criminal code defences and or municipality, but no one will listen.” [ 27 ] In September 2015, she wrote to the Hon.

Kathleen Ganley, then Minister of Justice for Alberta, requesting that the Minister review her allegations of criminal misconduct against the Redcliff municipal administration and councillors. That letter stated that “there is a large body of evidence that supports criminal misconduct in the municipal administration Council, and any attempts to uncover such misconduct have been thwarted by the RCMP.”

B. The BMO Email [ 28 ] During this period of time, Ms. Prpick had ongoing difficulties and disagreements with her bank, the Bank of Montreal, stemming from her personal commitments backing the Debut Project. In May 2016, she wrote by email to a Regional Vice President of the Bank of Montreal in regard to these issues (the “BMO Email”). In the BMO Email, she attributed her difficulties with the bank to actions and statements of the Plaintiffs, and Ms. Simon in particular. She specifically alleges, and states as fact, that Ms.

Simon misled Debut’s lawyers and agents, and states that this “may represent fraud and criminal prosecution could follow.” [ 29 ] The BMO Email went on to state that Ms. Simon “fabricated” documentation, and that Ms. Simon may have “manipulated” Debut’s account manager at the bank. Ms. Prpick concludes by writing that it has “taken me 11 years to unravel this mess. Those who caused it, including Mrs.

Simon, had a great deal to gain by making Debut lose its property”, alleging that “those who did this were going to cause the Town of Redcliff to recover Debut’s Townhouses....and rent [them] to foreign worker...” She went on to allege that Messrs. Giesbrecht and Hazelaar had “done this” to other property owners. [ 30 ] Importantly, the BMO Email came to light only when it was produced to the defendants in the Debut Action (including two of the Plaintiffs in this action) pursuant to Debut’s discovery obligations. C. Further public statements against Redcliff by Ms. Prpick [ 31 ] Ms.

Prpick’s crusade against Redcliff continued into 2017. In October of that year, just prior to a municipal election, she prepared and circulated two open letters, one to all sitting councillors, and the other to members of the public. The former was 21 pages long. It suggests that the councillors may have been “deceived into passing bylaws, budgets, resolutions, tendering and fraudulently billing taxpayers for the 100 and 200 blocks of 3 rd St.

NE road paving...”. [ 32 ] The balance of the letter was a lengthy screed detailing a litany of allegations against the Plaintiffs in relation to their dealings with Debut and their conduct of this defamation action. In the course of this, Ms. Prpick wrote: [i]t is hard to be repeatedly victimized, defamed, financially raped, ignored by the very authorities who are supposed to be there to help, etc. in an attempt to correct a wrong. It takes strength of character to stand up to bullies and not give in to their malevolent ways... [ 33 ] The letter circulated to residents the same day was a single page.

It opened with an unqualified allegation that the 100 and 200 blocks of 3 rd St NE had been “illicitly paved”, and councillors had been deceived into unauthorized payment for this work, with the funds in question being “misappropriated” and then billed to residents. It analogized this to a “Ponzi Scheme”. [ 34 ] This letter then stated that the present town council had been given evidence of this wrongdoing, and threatened civil and criminal liability against incoming councillors if they took no action on the situation. [ 35 ] Ms.

Prpick signed the publicly circulated letter and admitted to producing and circulating the one sent to incumbent councillors. [ 36 ] This evidence was led to show the scope and persistence of the defamation and Ms. Prpick’s specific intent to identify the Plaintiffs in the Organized Crime Letter, and to support the Plaintiffs’ claim for injunctive relief. D. History of Police Complaints [ 37 ] The Organized Crime Letter was only one part of Ms. Prpick’s campaign to make the Plaintiffs subject to criminal inquiry. In October 2013, Ms.

Prpick and two of her followers went to the RCMP in Redcliff and made videotaped statements alleging various wrongdoing by Redcliff officials. Barely a month later, Ms. Prpick and the other two complainants rescinded their statements and Ms. Prpick refocussed her complaint on the single issue of the supposed forgery of a Service Agreement between Debut and Redcliff. The RCMP investigated. [ 38 ] Meanwhile, Ms. Prpick swore an affidavit in the Debut Action in support of an attempt to add Ms. Simon to that proceeding.

That affidavit repeated the same laundry list of allegations ultimately contained in the Organized Crime Letter. Fairly shortly thereafter, the RCMP met with Ms. Prpick, told her they had sought advice, and told her that this is not a case in which criminal charges were warranted and that the matter was closed. This immediately prompted Ms. Prpick to file a complaint against the RCMP alleging their initial investigation had been improper and insufficient. [ 39 ] Ms. Prpick sent the Organized Crime Letter on January 27, 2015.

In May 2015, the RCMP provided a detailed response to her complaint about the Redcliff detachment’s investigation of her 2013 complaint, concluding that it had been properly carried out and concluded. Again dissatisfied, Ms. Prpick launched a further complaint to the Civilian Review and Complaints Commission of the RCMP. On December 16, 2015, the Commission issued a 10-page review and found her complaint about the investigation of the alleged forgery to be unsubstantiated. [ 40 ] Ms.

Prpick never advised any of the recipients of the allegedly defamatory letters that her complaint had been investigated and dismissed by the police, the investigation of her complaint investigated and dismissed, and that subsequent investigation of the investigation reviewed at the highest level of federal civilian police oversight, and that this too resulted in her complaints being deemed unfounded. [ 41 ] Ms. Prpick returned to the RCMP in December 2017, alleging new evidence and requesting re-opening of the 2013 file.

In June 2019, she was informed that the investigation was complete, and the file was again being concluded without any charges. Ms. Prpick once again filed a complaint about this second investigation which was, in turn, investigated and dismissed in a comprehensive

review provided to her on June 9, 2020. V. Issues [42] This case requires determination of the following issues: A. Should the Plaintiffs be able to use the BMO Email? B. Did the Defendant defame the Plaintiffs? C. Is the Organized Crime Letter defamatory? D. Are the defamatory statements true? E. Does qualified privilege apply to the Organized Crime Letter? F. Was the Organized Crime Letter fair comment? G. If defamation is proven, what damages were suffered by the Plaintiffs? A.

Should the Plaintiffs be permitted to rely on the BMO Email? [43] The BMO Email came into the Plaintiffs’ possession through document production in the Debut Action. Ms. Prpick objects toits admission as evidence in this defamation action on the basis that such use would breach the implied undertaking rule.

The Plaintiffsreply that the implied undertaking rule is not absolute and that the Court may grant dispensation from it where appropriate, relying onOchitwa v Bombino, (AB KB), [1997] 210 AR 259 (QB) at para 34. [44] The analysis of whether the BMO Email properly may be used as evidence to advance the defamation claim begins with Rule5.3(3) of the Rules of Court, which codifies the common law implied undertaking rule that “information acquired through the discoveryprocess shall not be used for any purpose which is ulterior or collateral to the lawsuit”: Kang v MB, 2019 ABQB 246 at para 139.

Rule5.33 places explicit statutory limits on the collateral use of otherwise private materials produced involuntarily through the civil discoveryprocess: Confidentiality and use of information 5.33(1) The information and records described in subrule (2) must be treated as confidential and may only be used by the recipient of theinformation or record for the purpose of carrying on the action in which the information or record was provided or disclosed unless (

a) the Court otherwise orders, (

b) the parties otherwise agree, or (

c) otherwise required or permitted by law. [45] Both the common law and Rules-based iterations of this principle derive from the quid pro quo of complete evidentiaryopenness in litigation counterbalanced by security that what is produced will be held confidential: Lac d'Amiante du Québec Ltée v2858-0702 Québec Inc, 2001 SCC 5 at para 60; Juman v Doucette, 2008 SCC 8 at paras 3-32; Wirth Ltd v Acadia Pipe & Supply Corp(1991), (AB KB), 79 Alta.

L.R. (2d) 345 (QB) at para 47. [46] The rationale underlying this principle was well articulated by Fruman J (as she then was) in LSI Logic Corp of Canada vLogani, 2001 ABQB 710 at para 94: [this] rule springs from the requirement that one party in litigation is compelled to provide disclosure to the other. The disclosing party’sprivacy rights give way to the need to do justice between the parties in the litigation pending between them.

However, the rule protectsthe confidentiality of the disclosed information and limits the invasion of privacy by confining the use of the disclosed information to the“litigation then before the court between those parties and not for any other litigation or matter or any collateral purpose.” [Citations omitted] [47] Therefore, use of documents produced in one lawsuit to advance another is a prima facie infringement of r. 5.33 and requiresexpress permission of the Court.

Relief from the strictures of r. 5.33 is the exception, and the party seeking to use the protected discoverydocument bears a “heavy burden” of satisfying the Court that a collateral use should be allowed: Secure Energy Services Inc v CCSCorporation, 2014 ABQB 107 at para 13. [48] The factors to be considered in deciding whether to grant relief from an implied undertaking – which I find apply equally to aninquiry under r. 5.33(1)(a) – were helpfully summarized by Slatter J (as he then was) in Iozzo v Weir, 2004 ABQB 259 at para 9. Thosefactors include: (

a) the importance of maintaining the integrity of the pre-trial disclosure process; (

b) the presence of fraud or criminal wrongdoing; (

c) whether the information could have been obtained from other sources;

(

d) whether third parties are involved; (

e) whether the new proceedings involve the same or similar parties or issues, and whether they arise out of the same series of events; (

f) whether the injustice that might arise from disclosure outweighs the injustice that might arise from enforcing the undertaking. [49] Applying the factors enumerated in Izzo, I find that the first three weigh against the Plaintiffs’ use of the BMO Email.Permitting the Plaintiffs to use the BMO Email would strike at the very heart of r. 5.33 and the implied undertaking it codifies. Ms.Prpick, as the directing mind of Debut, honoured her disclosure obligation by authorizing the production of a private banking record withthe potential to prejudice her personally. This was a purely private correspondence, which Ms.

Prpick directed her company to producedespite the jeopardy it posed to her. Outside the discovery process, the BMO Email would have been unobtainable and remainedunknown. Ms. Prpick’s production of the BMO Email is a prime instantiation of the “disclosure honesty” the rule is designed to foster. [50] The document was not part of any fraud or criminal conduct and was vested with a high degree of privacy, being a personalletter to one’s banker addressing circumstances of financial distress. [51] Moreover, the exemption for use sought in this case implicates third-party rights. While Ms.

Prpick is the operating mind ofDebut, and she was closely connected to the events in the Debut Action, the use contemplated for this document is against herpersonally. Contrary to what was held in Ochitwa, prejudice to a third party will generally worsen rather than minimize the harm done byan abrogation of the rule, as this instance illustrates. [52] On the other hand, there is a close relationship between parties and events in the two actions. Mr. Giesbrecht and Mr.Hazelaar were parties to both actions. Ms. Simon and Ms.

Prpick were not parties to the Debut Action, but were the external individualsmost closely related to it. The alleged defamation contained in the BMO Email illustrates the close connection between the twoproceedings. These facts all militate in favour of permitting its use in this defamation action. [53] Ultimately, the analysis turns on the balance between the mutual prejudices at stake and the impact on the administration ofjustice in either event.

These factors ask the Court to consider what each party will gain or lose through the retention or lifting ofconfidentiality over the disputed documents, and how those outcomes would impact justice more broadly. [54] In this case, the BMO Email adds little to the Plaintiffs’ case in terms of the scope and scale of the alleged defamation. It wassent to a single person who neither knew the Plaintiffs nor had dealings with them. The Organized Crime Letter is the real core of thePlaintiffs’ case.

Damages for the BMO Email would be quite limited given it had only a single recipient with no relationship to thePlaintiffs. From an overall utility perspective, the BMO Email serves to strengthen somewhat the Plaintiffs’ argument that Ms. Prpickwas referring to them specifically in the Organized Crime Letter and demonstrate the persistence of her defamatory intent. Thecountervailing prejudice to Ms.

Prpick is that she would face a broader and slightly more robust defamation suit because of a documentshe appropriately chose to disclose that was otherwise wholly private. [55] Beyond the specific facts of this case, exceptions undermining disclosure confidentiality take a toll on the administration ofjustice more broadly, and this impact should not be devalued. As held in Carbone v De La Rocha, (1993), (ON SC),13 OR (3d) 355 (GD), “compulsion [of production] is an invasion of a private right to keep one’s documents to oneself.” [56] The leading caselaw on point does not assist the Plaintiffs.

In Goodman v Rossi (1994), (ON CA), 21 OR(3d) 112 (CA), where an employee suing for wrongful dismissal discovered correspondence between her employer and a professionalregulator that cast negative aspersions on her ethicality. In the Divisional Court, Moldaver J (as he then was) would have granted relieffrom the implied undertaking rule because “the ends of justice require that Ms. Goodman be allowed to attempt to clear her name with[the regulator]”.

The Court of Appeal disagreed, noting that the document had not been published in any way, access to it was limited,and its existence in an inaccessible file posed no risk to Ms. Goodman’s general reputation: Goodman v Rossi (1995), (ON CA), 24 OR (3d) 359.

Unlike the present case, the Court’s ruling in Goodman entirely frustrated the plaintiff’s defamation action,whereas here it merely reduces its scope to a small extent. [57] Justice Coutu of this Court reached the opposite conclusion in a similar wrongful dismissal case, where the plaintiff employeelearned of potentially defamatory complaints about her performance made by members of the public to her former employer, the AlbertaHospital Association: Ochitwa. [58] Respectfully, I decline to follow Ochitwa and have concerns about the manner in which it articulated the core of the balancinganalysis at para 45: [t]he public interest favours disclosure as the Defendants, if they have defamed the Plaintiff should not be permitted to hide theirdefamation behind the protection of the implied undertaking rule.

A rule set up to protect the administration of justice should not bepermitted to be used to subvert the ends of justice and prevent those defamed from seeking justice. [59] With respect, this reasoning erases the rule. Preventing otherwise useful but confidential information from being used ordisseminated is the express purpose of r. 5.33. The fact that this may forestall a party from pursuing an otherwise valid claim is acontemplated outcome of the rule, not a reason to automatically abrogate it.

I further find that the lack of discussion surrounding theprima facie qualified privilege covering the circumstances of the disputed letter in Ochitwa reduces its precedential utility. [60] In LSI at para 107, Fruman J held that, “[d]isclosure in the course of fair value proceedings does not give shareholders alicense to troll for evidence of oppressive conduct.” The same reasoning applies in this and similar cases.

The fact that parties involved ina long-running and bitter commercial dispute have said and recorded negative things about one another in internal or privatecommunications is hardly unusual, and does not, per se, justify abrogation of r. 5.33. The proper approach to considering applicationsunder r. 533(1)(

a) is to balance of interests that come into competition when an exemption from the rule is sought: Goodman (CA) at p125.

[ 61 ] While a document such as the BMO Email may be defamatory, it is far removed in factual severity from a broadly disseminated public statement. This consideration propelled the Court of Appeal in Goodman to deny collateral use of an analogous private document, on the basis that it “could not have resulted in an injury to [the applicant’s] general reputation.” The same is true here. [ 62 ] While the Court should not prejudge the collateral action in which the embargoed document is to be used, it is reasonable to make a cursory analysis of what general scope of impact the document could have.

In this case, the impact of depriving the Plaintiffs of the BMO Email is minimal, and the infringement of the values underlying r .5.33 is substantial. [ 63 ] I conclude that allowing an exception to r. 5.33 in this case would, on balance, be contrary to the proper administration of justice. The BMO Email will not be admitted. [ 64 ] As a final note, I would add that disputes over the collateral uses of discovery documents should be determined well in advance of trial.

It is for the party seeking to abrogate the rule to ask permission, and they bear the onus of demonstrating that the proposed collateral use should be permitted. That was not done in this case, though for understandable reasons given the procedural history. In future cases, however, exemptions to the confidentiality of discovery documents should be sought as soon as their collateral use is foreseen. Leaving the issue to trial magnifies the infringement, risks unduly expanding the trial itself, and should not be routinely permitted. B. Did Ms.

Prpick Defame the Plaintiffs? [ 65 ] The plaintiffs in a defamation action bear the burden of proving three things: (

i) that the words complained of were defamatory, meaning they would tend to lower the subject’s reputation in the eyes of a reasonable person; (ii) that the defamatory words in fact referred to them; and (iii) that the words were communicated to at least one other person. Once these three elements are established on balance of probabilities, damages are presumed and the onus shifts to the defendant to justify their defamatory publication: Grant v Torstar Corp , 2009 SCC 61 at paras 28-29 ; Defamation Act , RSA 2000, c D-7 , s 2. i.

Was the Organized Crime Letter defamatory? [ 66 ] The Organized Crime Letter states that large-scale organized criminal activity is taking place in the administration of the town of Redcliff. It goes on to list a series of examples of the alleged wrongdoing, all of which are forms of fraud, theft, and breach of trust. Saying that someone has behaved criminally, in any of the ways enumerated in the Organized Crime Letter, is self-evidently defamatory. Indeed, allegations of corruption and misfeasance in public office are amongst the most serious and damaging forms of libel: Torstar at para 111. ii.

Does this defamation refer to the Plaintiffs? [ 67 ] The Organized Crime Letter does not explicitly name any of the Plaintiffs. As such, they must demonstrate that reasonable people who knew them would conclude that the defamatory statements referred to them: Weaver v Corcoran , 2017 BCCA 160 at para 84 ; Bou Malhab v Diffusion Métromédia CMR Inc , 2011 SCC 9 at paras 57-58 and 63-64 ; [1] AUPE v Edmonton Sun , [1986] 75 AR 153 (QB) at para 32 . [ 68 ] Whether a generic or group defamation implicates the plaintiff is a contextual question.

The size of the group defamed, the nature of the group, and the plaintiffs’ relationships to that group are all relevant, though not definitive, factors: Bou Malhab at paras 63- 69 . For instance, in AUPE , this Court held that a series of articles impugning the general character of prison guards at a particular institution, who numbered some 200 in total, was specific enough to injure each of them individually.

By contrast, in Bou Malhab at para 86 , a racial slander against Montreal taxi drivers was found to implicate a group too large and too heterogeneous to sufficiently identify and attach to any specific individual. [ 69 ] The authority most similar to the present case appears to be Wilson v Switlo , 2011 BCSC 1287 , aff’d 2013 BCCA 471 , in which the defendants made derogatory comments about the current and former council of an Aboriginal band, alleging graft, corruption, fraud and conflicts of interest in relation to a hydroelectric project.

In concluding that each individual member of the band council was defamed by collective reference to its corrupt practices, the trial judge held, at para 161, that: ...the size of council, its fixed membership, and the small local community it served all favour a finding that defamatory words published regarding the council damaged each of the plaintiffs personally. [ 70 ] Likewise, I have no difficulty finding as a fact that the Organized Crime Letter would be understood as referring to each of the Plaintiffs by any reasonable person in their local community who knew them.

The Organized Crime Letter identifies the alleged wrongdoers as “those who been involved in perpetrating these violations are public officials in the town including administration counsellors.” Redcliff is a small community with a proportionately compact local government. The composition of Redcliff’s council and key management team remained relatively constant for the decades preceding the events of this lawsuit. The cast of individuals to whom the Organized Crime Letter could refer is small.

It is also an “organized and homogenic” group that is identifiable and visible in the community – two factors suggesting that a defamation of the collective will attach injuriously to individuals in it: Bou Malhab at paras 65-68 . [ 71 ] The allegations are also of a nature that necessarily implicates higher-level decision makers. A receptionist employed with the town would not come to mind as a suspect when one reads the Organized Crime Letter. The Mayor, Town Manager, and other senior officials would.

Moreover, individuals with a lengthy connection to the town in such capacities are unlikely to be unaware of organized criminal activity within its workings, suggesting that anyone with a long-standing connection to the town would be at least complicit. Therefore, the nature of the defamation attaches it broadly to those within its ambit. [ 72 ] Mr. Giesbrecht worked for the town of Redcliff in various positions for 29 years, becoming the Treasurer in 1985 and Town

Manager in 1987, holding that position through to 2008. He was virtually synonymous with the town administration, having served as its highest-ranking executive employee for more than two decades – the lion’s share of the timeframe of the corruption alleged in the Organized Crime Letter. On the evidence in this case, no single individual would have been a more identifiable administrative decision- maker with the town of Redcliff during the relevant period referenced in the Organized Crime Letter. [ 73 ] Similarly, Ms.

Simon has worked for the municipality for close to 30 years, including in a number of managerial and highly public-facing positions. I find as a fact that anyone having a cursory familiarity with Redcliff’s operations would associate the defamatory allegations with her. [ 74 ] Mr. Hazelaar has been a resident of Redcliff for over six decades. He successfully ran for town council in 1998 and served three terms as mayor, from 2007 to 2013. Mr. Hazelaar was synonymous with Redcliff’s elected leadership at the times covered by the Organized Crime Letter, in the way Ms. Simon and Mr.

Giesbrecht were the face of its professional staff. On this basis alone, I find that the defamation refers to him. Moreover, Mr. Hazelaar testified, and I accept, that he has experienced a chill in the way people regard and treat him in Redcliff as a result of Ms. Prpick’s long-running campaign against him. That is additional evidence that her allegations of wrongdoing are associated directly with him by the relevant audience. iii.

Conclusion on defamation [ 75 ] The Plaintiffs are precisely the people upon whom the greatest “intensity of suspicion” is cast by the defamatory statements: Butler v Southam , 2001 NSCA 121 at paras 56-58 .

They have proven that the Organized Crime Letter is defamatory and would be read as implicating them in the alleged criminal activity by anyone familiar with them. [ 76 ] Finally, the October 2017 letter to councillors names each of the Plaintiffs and asserts that they have acted as if they have guilty consciences, making the “allegations much more valid since they admit to being part of the scheme.” There is no doubt Ms. Prpick meant to refer to the Plaintiffs when she wrote the Organized Crime Letter.

While the test for determining whether the Plaintiffs have been defamed turns on the defamation’s potential objective impact and not on the defamer’s intention, the obviousness of her subjective meaning buttresses my conclusion. [ 77 ] The Plaintiffs have discharged their onus and burden of proof on defemation. The analysis therefore shifts to whether the defendant can justify publication of the Organized Crime Letter or seek shelter under some other defence. C. Truth of the defamatory statements [ 78 ] Regrettably, Ms. Prpick sought to justify the defamatory content of the Organized Crime Letter as true.

This took the form of calling most of the evidence she indicated would have underwritten the Debut Action, and then some. This process accounted for the length of the trial. At the end of the day, Ms. Prpick succeeded only in proving that Redcliff went through administrative growing pains in professionalizing its development practices, was charged very high rates for certain tendered contracting, and did not always have the most accurate record keeping. No wilful wrongdoing was proven, much less anything approaching evidence of organized criminality. [ 79 ] As discussed in the detailed consideration of Ms.

Prpick’s proffered evidence of criminality below, it is clear that Redcliff did not always have a firm, smooth grasp on the development process and the issues arising from it. At times, residents faced challenges in carrying through developments. The town, however, had no malevolent intent, no nefarious agenda, and seems to have done its best to figure things out and assist its citizens. [ 80 ] My bottom-line factual conclusion, after hearing and seeing this entire proceeding, is that Ms.

Prpick was not always well served by her professional advisors in the Debut Project, faced unforeseen expenses and financial challenges, and could not cope psychologically with the reality that her carefully executed dream project ended in financial ruin rather than the reward she and her husband had anticipated in return for their years of effort. Instead of accepting this outcome, her mind has constructed an account for these events, and the consequent litigation quagmire she has found herself in, centered on herself as a victim of an elaborate, over- arching criminal conspiracy. That is simply not the case.

This maladaptation has resulted in a decade of harm to herself, to those she has sucked into the vortex of her conspiracy theories, and to the honest, well-meaning individuals who, unfortunately for them, became the targets of her vendetta. i. Honest Belief is not a defence [ 81 ] Ms. Prpick at times attempts to justify her allegations on the basis that she genuinely believed the conclusions she expressed in the Organized Crime Letter. However, the defendant’s state of mind is irrelevant to defence of truth, which is purely objective.

An honest, even reasonable belief in the truth of one’s libels is no defence if the defamatory statements turn out to be false: Raymond E. Brown, The Law of Defamation in Canada, (Toronto: Carswell, 1987) (“Brown on Defamation”) at p. 20, Hall v Kyburz , 2006 ABQB 294 at para 25 , aff'd 2007 ABCA 228 ; Elkow v Sana , 2015 ABQB 803 at para 84 ; and Fort McKay Métis Community Association v Morin , 2019 ABQB 185 at para 42 . ii.

Truth as a defence to defamation [ 82 ] The nature of the “truth” which must be proven to justify defamatory words is well-articulated in Brown on Defamation, quoted as follows in Jay v Hollinger et al , 2002 BCSC 1840 at para 4 : The evidence supporting the justification must be as broad as the defamatory imputation. It must travel the length of the charge in all material respects. The defendant must prove the truth of the precise charges made against the plaintiff. The evidence must address every element essential to the truth of the defamatory charge.

However, it is not necessary to prove the truth of each and every word or the literal truth or the truth of every fact in the publication if the additional facts cannot constitute a separate defamatory imputation and the

justification otherwise meets the gist or sting of the charge. Substantial truth is the test. It is sufficient if the substance of the allegation is justified. If the defamatory charge is true in substance, it is immaterial if there are slight inaccuracies in the details of the expression. The defendant must establish only that the whole of the defamatory matter is substantially true. This included the specific charges that are made and any inferences of fact flowing from those charges. It is the sting of the words the defendant must justify.

There may be some slight inaccuracies, if they are not offensive or material and the substance of the charge is true. Minor inaccuracies do not amount to falsity of the gist or sting of the defamatory charge is justified. Even if the details of the publication are false, the publication is substantially true if it conveys an accurate impression. The test is whether the libel, as published, would have a different effect on the mind of the reader from that which the pleaded truth would have produced.

If the truth is so near to the facts as published, that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done. [ 83 ] Partial truth is not a defence: Bent v Platnick , 2020 SCC 23 at paras 107- 108 . That said, Ms. Prpick does not have to prove that the individuals referenced in the Organized Crime Letter have been convicted of a crime. The Plaintiffs rely on Hall v Kyburz , 2006 ABQB at para 39, where Erb J held as follows: In my

interpretation of this defence, the Respondent is not at liberty to assert that he can prove that the Applicants are, for example, “criminals” based on his

interpretation of the law or on alleged events respecting which no charges or convictions were ever commenced or indeed contemplated. [ 84 ] Respectfully, that is not the law. There may be myriad reasons why charges are not laid or pursued, and why a conviction to the criminal standard of proof beyond a reasonable doubt is not achieved. Many of those contingencies do not relate truth of the fact that an individual has committed criminal acts, as that concept is understood by members of the public.

The law in this regard is correctly stated by Myers J in Kulyk v Guastella , 2021 ONSC 584 at para 34 : ...a civil court hearing a defamation case does not rule on the propriety of the criminal charges. If the criminal case leads to a finding of guilt, the civil case will be defeated by the doctrines of issue estoppel, abuse of process, and/or collateral attack as discussed above.

If the criminal charges do not result in a finding of guilt, they are largely irrelevant to the question of proof on a balance of probabilities of the truth of the defendant’s statements in the defamation case . [2] [emphasis added] [ 85 ] Defamations involving allegations of criminality do not form a special class of libel which can only be defended by reference to the conduct or outcome of criminal proceedings.

They operate under the same rules and principles as any other defamation action, and a defendant who establishes the “substantial truth” of their defamatory words is entitled to succeed. [ 86 ] The Court will now consider each of the justifications Ms. Prpick advanced in her closing submissions for the defamatory words.

These include the factual defence she advanced in respect of the BMO Letter, even though that is no longer in play. iii. “Double set of books” [ 87 ] The Organized Crime Letter posited the existence of a “double-set of books”, which is another way of saying that fraudulent records of income and expenditures were being generated. Ms.

Prpick’s proof for this allegation is found in the Minutes recording Redcliff’s ratification of the town’s accounts payable for four meetings. [ 88 ] Specifically, Redcliff’s Meeting Minutes for August 20, 2007, [3] include approval of general vouchers paid by the town from July 10 to August 9 of that year. These are reproduced in the Minutes as a table, which has four columns listing: the sequential five-digit number of the cheque issued, the payee, a

summary of the reason for the payment, and the dollar amount of the payment. The Minutes for the meeting on September 9, 2008, [4] contains the identical table. [ 89 ] Ms. Prpick argues that this shows a “double set of books”, illustrating that “there were identical reserve fund transfers worth hundreds of thousands of dollars”. While this reasoning makes no sense in and of itself, there is a benign and pedestrian explanation for the anomaly. Ms. Simon testified, and I find as a fact, that she simply made a mistake and pasted the August 2007 Payables into the September 2008 Minutes.

The obviousness of this explanation is manifest. The table is headed “Accounts Payable July 10 –August 9, 2007” both times it was reproduced, and the payment dates and the cheque numbers are the same [ 90 ] Indeed, Viveca MacArthur, Redcliff’s former Treasurer, explained that the five-digit number appearing in the lefthand column of the Accounts Payable charts was the unique number on the physical cheque issued for each journaled expense.

Since the cheque numbers on both are identical (as is the entire table), the expenses were necessarily only paid once, with the enumerated numbered cheque. [ 91 ] A similar pattern – where material from a prior meeting was re-copied into a subsequent set of Minutes – is found in the March 28, 2011, Minutes and the March 26, 2012, Minutes. [5] Once again, a cursory examination and consideration demonstrates that this is a clerical error. [ 92 ] I accept that the reproduction of the same set operating expense table in the March 2011 and March 2012 Minutes was a clerical error made by Ms.

Simon in her preparation of these documents. Unfortunately for Ms. Simon, absolute attention to detail was not always her strong suit, and Ms. Prpick’s eagle-eyed examination of the town’s records found her mistakes. I find as a fact, however, that these are exactly that: clerical mistakes. I am comforted in that conclusion by evidence that MNP, a well-known public accountancy, were Redcliff’s auditors throughout this period. [ 93 ] There was no “double set of books” kept by the town of Redcliff. Ms. Simon made the occasional mistake in preparing meeting minutes.

This is neither evidence of fraudulent bookkeeping nor a reasonable basis to conclude that criminal activity was taking place.

iv. “Illegal revenue from public coffers” [ 94 ] Ms. Prpick seeks to justify this allegation by reference to the fact that Council approved steep increases in development charges levied against certain properties through a legislative process she says was unlawful. There is no question that certain development-related local improvements – particularly paving – came in at much higher costs than anticipated, and that these costs were passed on to ratepayers through local improvement bylaws. However, these costs arose from publicly tendered contracts.

There is no evidence that any of them was improperly awarded or that the payments under them went to anyone other than the successful bidding contractor. [ 95 ] Although not addressed in her closing submissions, one of Ms. Prpick’s core complaints was that 3 rd Street had already been paved prior to her development and that the exorbitant costs imposed through local improvement charges were somehow fraudulent because they involved paving that never happened.

The photographs tendered in the case, together with certain oral evidence, suggest that the centre part of the road was previously paved, but that the pavement simply ended and led to a ditch on either side. [ 96 ] The tendered work involved extending this pavement to the full width of the street and then constructing curbs and gutters contiguous to it. I find that the scope of the work shown in the tendering documents corresponds with what the photos show needed to be done.

While that work cost more than common sense would suggest, it was roundly acknowledged that the level at which the bids came in surprised everyone, but was consistent with then-present trends in the construction industry. [ 97 ] Ms. Prpick also takes specific issue with the process by which Council passed the local improvement bylaw covering these costs. However, neither she nor any other affected party ever challenged the validity of that bylaw through the available legal process. While it may be that Ms.

Prpick was ill-advised about how and when a taxation bylaw could be challenged, there is not a shred of evidence that Redcliff did anything that improperly enriched it or its elected officials and administrators.

Indeed, Redcliff’s Council voted to reduce the percentage of this project paid by the residents on that street, and on another project, in light of the high cost. [ 98 ] In any event, nonconformity with the procedural dictates of the Municipal Government Act, RSA 2000, c M-26 does not, in and of itself, provide any evidence of criminal behaviour. [ 99 ] In short, there was no evidence presented that reasonably could support a conclusion that there was an “illicitly obtained revenue stream from public coffers”.

I find as a fact that the evidence does not establish any basis on which the plaintiffs, or indeed anyone associated with Redcliff, reasonably could be thought to have behaved criminally in relation to the paving of 3 rd St. NE, and that there is no evidence that any of the plaintiffs ever took a single cent of public funds improperly or were in any way improperly enriched by their work for/service to the community from this project, or otherwise. v. “False registries at land titles” [ 100 ] Ms.

Prpick supports her claim of false registries at land titles by reference to a caveat Redcliff registered on Debut’s property. That caveat referred to a “Development Agreement”. No such document was ever signed between the Debut and Redcliff. In reality, what was registered was one of the Service Agreements between Debut and Redcliff, which in fact required registration on title as a condition of the agreement. [ 101 ] As discussed below in relation to malice, Ms. Prpick could have accessed this document at any time to determine what it was.

Had she done so, she would have discovered that the obvious, innocent explanation – clerical misnaming of the document – accounted for, and diffused, any “evidence” of a false registration. [ 102 ] Notably, she had this document in her possession since at least July 24, 2020, yet persisted at trial with the allegation of false registration.

Also, somewhat ironically, the misnaming of this document appears to have originated with her solicitor, as discussed below. [ 103 ] The evidence discloses no evidence of unlawful or even improper conduct in respect of land titles. vi. “Forgery/false documents/misappropriation of public money” [ 104 ] In many respects, Ms. Prpick’s marquee issue is the supposed existence of a forged Service Agreement between Debut Developments and Redcliff. As noted, Debut was required to enter into such an agreement for each of the two phases of its development, one for the east side and one for the west.

The forgery issue concerns the west side Service Agreement, which the parties all agree was actually signed on July 4, 2008. [ 105 ] At Ms. Prpick’s request, the Court called Reserve Constable Arthur Hopkins, a retired RCMP member who served for 37 years, up to the rank of Staff Sargeant. He was tasked with investigating Ms.

Prpick’s complaint about the RCMP members who handled her renewed complaint in 2017. [ 106 ] In Constable Hopkins’ review of the previous RCMP investigative files, he found a signed copy of the 2008 Service Agreement that appeared to have been transmitted at a date prior to the date on the properly executed copies. This document was not produced by any of the parties and there is no suggestion that anything other than the agreed document has ever been acted upon by anyone in any way. [ 107 ] Significantly, the suspect document was shown to Ms.

Prpick in a meeting with Constable Hopkins, and he advised her that she could obtain it through an Access to Information and Privacy (“ATIP”) request. Constable Hopkins was a fair, patient, and thorough witness, and I accept his evidence on this point. However, his evidence as to the date on the mystery Service Agreement was somewhat unclear, and he appeared to confuse the 2006 east side Service Agreement’s date with the dates relevant to this issue at one point. This is unsurprising given the passage of time.

[ 108 ] A more helpful

summary of this situation is found in the Public Complaint resolution letter sent to Ms. Prpick by Inspector Ian Shardlow of the RCMP in June 2020, following Constable Hopkins’ investigation. [6] It states in part: Sergeant White determined the underlying allegation is that a signature on a Service Agreement between yourself company and the town of Redcliff had been forged. You believe this as the only Service Agreement signed for this portion of the development was on July 4, 2008.

The belief of a forgery is a result of a faxed letter dated June 7, 2008, sent by the town of Redcliff that states it is attached to a signed Service Agreement . As is letter predates the actual service agreement you believe that there must then be a forgery. There is no actual observed forged Service Agreement alleged by you, just the belief one exists on the faxed letter’s date .

You do not allege any misuse of the predated letter with the bank to constitute any fraud. [7] [emphasis added] [ 109 ] Constable Hopkins confirmed this version of the “forged Service Agreement” theory, noting that the forgery concern “... had to do with the letters than went between the -- offices and the reference to those letter”. [emphasis added] [ 110 ] Ms. Prpick entered the fax cover letter referenced, which is correspondence from Ms. Simon covering transmission of the Service Agreement to the town’s lawyer. That letter was dated June 7, 2008, [8] and is the root of the forgery complaint.

Indeed, this appears to have been the single issue she ultimately asked the RCMP to examine in December 2013. [ 111 ] She bolstered her argument that Ms. Simon had forged signatures on the Service Agreement by reference to her lawyer’s accounts. These contained s docket entry on June 20, 2008: “review of development agreement; draft postponement; letter to BMO. [9] The letter her lawyer references drafting was to Ms. Prpick’s banker, Marlon Croissant. [10] It states in part: I have now received an executed further copy of the Development Agreement between our mutual client and the Town of Redcliff.

I am enclosing herewith a copy of same for your reference. [emphasis added] [ 112 ] Ms. Prpick relies on the date of Ms. Simon’s covering letter, together with the docket suggesting that her lawyer had received and reviewed the signed agreement well before the parties actually executed it on July 4, 2008, as evidence that the alleged forgery must have occurred. [ 113 ] However, the record reveals that a much simpler and more sensible answer was offered even when the RCMP investigated back in 2013 – namely that Ms. Simon had misdated the cover letter. Ms.

Simon was asked to address this issue surrounding the 2008 Service Agreement and again explained that she had likely made a mistake. She testified that her letter to Ms. Prpick’s lawyer dated June 7 th was actually sent July 7, 2008, which is when she prepared other related letters sending out the document. [11] [ 114 ] I accept Ms. Simon’s evidence and find as a fact that she wrote both letters sending the signed Service Agreement out on the same day, being July 7, 2008, and simply misdated the one to her own lawyer. I reach this conclusion for several reasons.

First and foremost, nothing other than the Service Agreement everyone agreed they signed on July 4, 2008, was ever produced, registered, used, or relied on by anyone in any way. There is a total absence of any fraudulent intent, attempt, or effect. [ 115 ] It strains credulity to think Ms. Simon forged signatures on a draft of the Service Agreement between Ms. Prpick and Redcliff, sent it to Ms. Prpick’s lawyer days before the actual agreement was executed in identical terms, and then carried on with sending the real signed Service Agreement to Ms.

Prpick and Redcliff’s lawyers, with the forgery never being actually seen or acted upon by anyone. The scenario is absurd. [ 116 ] Second, also found in Exhibit 41 is an obviously post-facsimile transmission copy of the “June 7” letter, containing the handwritten annotation: “Received Marlon Croissant, July 8/08”. While I appreciate this is hearsay (as are the solicitors’ accounts), no objection was raised, and Ms. Prpick entered the document. Its existence aligns with the letter from Ms.

Prpick’s lawyer attaching the signed Service Agreement having been sent and received only after the date on which everyone agrees it was signed. [ 117 ] Fourth, it makes no sense that Ms. Prpick’s lawyer would receive a signed copy of the Service Agreement in early June but not send it to the bank (fulfilling his client’s responsibilities under it), until the day after Ms. Simon says she actually sent it to him. [ 118 ] Fifth, Ms. Prpick’s lawyer’s docket makes no reference to receiving or reviewing a letter from Ms. Simon, only that he reviewed the agreement the parties ultimately signed just over a week later.

This is consistent with him having reviewed it prior to the signing. [ 119 ] Sixth, Ms. Simon’s evidence is corroborated by a statement of account from Redcliff’s lawyers – the recipients of the “June 7” letter – who recorded work on July 7, 2008, docketed as: Received telephone call from Town of Redcliff, received signed Service Agreement and endorsed Subdivision Authority Approval, revised Caveat, prepared Land Titles Document Registration Request, prepared Letter to Focus, [emphasis added] [ 120 ] This corroborates Ms.

Simon’s evidence that she composed and sent the letter on July 7. [ 121 ] Seventh, the record shows that Ms. Simon is not great on attention to detail with dates, making the typographical error at the root of all of this excitement not an improbable occurrence. [ 122 ] Eighth, consistent with all of the foregoing, Constable Hopkins testified that, in his review of the entire investigative history of this matter, he “did not see anything that would indicate to him that there was a forged agreement”. [ 123 ] And finally, it is telling that, in a case where Ms.

Prpick has spared no time, effort, or expense to obtain and examine reams of irrelevant documents over almost a decade, she neither asked the Court to order Constable Hopkins to bring the supposed “forgery” with him nor obtained it through the ATIP process he outlined to her after having been physically shown the document. It would have been all too easy to compare the signatures on the Service Agreement produced from BMO’s files with the agreed copy produced by all the parties at trial. I would be prepared to draw an adverse inference against Ms.

Prpick in this regard, though all of the other circumstances more than satisfy me that those documents would be exactly the same: see, for example, R v NLP , 2013 ONCA 773 at para 58 .

[ 124 ] On the flipside of the forgery theory lies a much more logical pathway to resolving this ostensible mystery. The letter from Ms. Prpick’s lawyer to Mr. Croissant, which he recorded on his accounting records as having written on June 20, was dated June 23, and marked “received” by fax on July 8. I find that the most likely sequence of events in this case is that Ms. Prpick’s lawyer dictated or otherwise prepared the letter on June 20, 2008, which was a Friday. It was typed by his assistant, as indicated in the signature block, on the next business day, Monday, June 23, 2008.

This letter was likely prepared in anticipation of receiving the executed copies of the Service Agreement from Redcliff, which occurred on July 7, 2008. The fact this all took place right at the beginning of summer holidays makes the lawyer’s advance completion of upcoming tasks even more understandable. It makes sense that Ms. Prpick’s lawyer’s office then used the pre-prepared cover letter to forward the freshly executed Service Agreement to her bank when they received it from Ms. Simon on July 7. [ 125 ] I find as a fact, indeed as a matter of certainty, that no forged Service Agreement ever existed.

There was no forgery, only a typographical mistake on a letter. vii. “Misappropriation of grant money” [ 126 ] Ms. Prpick sought to justify this allegation of defalcation through the evidence of Val Jans and her family’s experience with a development application in Redcliff. Her evidence was also tendered as proof of forgeries and false land titles registrations at trial. Though this was not advanced in closing submissions, I will nevertheless consider it, as the circumstances are illuminative of the overall situation. [ 127 ] The Jans family owned a piece land in the agricultural area of Redcliff. Ms.

Jans testified that the neighbourhood was simply known as “the greenhouse area”. Their father had purchased the land long before, when the area was populated mostly by greenhouses. This district evidently lacked basic residential infrastructure. In the mid 2000s, the Jans wished to subdivide their land so that several branches of the family could continue living there and a new home could be constructed for Ms. Jans’ mother, who was recently widowed.

What they asked seemed simple, but it involved developing the area to residential standards and, because of previous mergers of title and lot encroachments, required numerous land re-alignment steps and costly improvements, such as paving, sidewalks, sewers, and streetlighting. [ 128 ] It was clear from the evidence that Ms. Jans was significantly underinformed throughout the process, in particular by her professional advisors. Things became much more complicated and expensive than she and her family had ever anticipated, resulting in a long-term levy that precipitously increased their property taxes.

The history of these events, as I discern them from the evidence, illustrates the story of good, ordinary people encountering expense and bureaucracy that they neither expected nor understood, leaving them aggrieved at the outcome. This left them ripe for recruitment into Ms. Prpick’s conspiracy-theorist fold. [ 129 ] In terms of the specific allegation of embezzlement, Ms.

Prpick entered a letter dated May 20, 2009, from the Minister of Transportation to then Mayor Hazelaar, stating that the town was being given a grant of $303,171 under the New Deal for Cities and Communities program, funded by the federal and provincial governments. An annexed document, an “Annual Statement of Funding and Expenditure” shows that work on 8 th Street NW, being Ms. Jans’ street, was one the principal projects for which funding was sought. Ms.

Prpick points to a $0 entry under the heading: “Non-Eligible Items: GST, Admin, Developer Contribution, etc” as being fraudulent because the Jans family were subject to paying for part of this work. [ 130 ] The Jans were originally liable for $65,000 of the cost of the full improvements on their block. This was reduced by Council to $45,000, given the hardship inflicted by their consequently increased tax bills. Therein lies the likely answer to the allegation of fraud.

The residents who instigated the development of the block paid for it through a local improvement bylaw that amortized the amount over a 20–25-year period, through an additional levy on their property taxes. They did not pay upfront. [ 131 ] The evidence falls far short of establishing that the amounts Redcliff claimed by way of the grant weren’t entirely the town’s share, or that the amounts collected through local improvement levies would constitute a “developer contribution” in any event.

Moreover, the residents who were paying a portion of these costs had not yet paid much if anything, as their share was defrayed over their future tax bills in the coming years. [ 132 ] The evidence in the record on this issue is not a basis on which a reasonable person would suspect, much less assume, criminal misappropriation of funds by the municipality, and is certainly not proof of such wrongdoing. [ 133 ] Ms. Jans also provided paperwork related to land titles registries and related documents that were part of their property re- alignment that she believed had been forged. Ms.

Jans believed that these were forgeries because her mother had been in Vancouver at the time of their execution. However, all of the impugned documents appeared to be signed or witnessed by the Jans’ own lawyer and his assistant. Redcliff and the Plaintiffs played no role in these. Moreover, the entire land re-alignment and development process was successfully concluded. [ 134 ] Ms. Jans discovered the date-anomalous documents only by chance in 2016. Her involvement with Ms. Prpick, coupled with her aggrievement at the cost and lack of information she suffered throughout the process, led Ms.

Jans to conclude that something illegal must have been afoot. At some point she even filed a suit against the town, but appears never to have asked the family’s lawyer for an explanation of the suspect documents – which he appears to have prepared on the Jans’ behalf. [ 135 ] Ms. Jans’ evidence also showed that there was confusion in the numbering of lots after land was sub-divided. Similar to Ms. Prpick’s experience, however, this was ultimately sorted out and had no practical impact. [ 136 ] None of the evidence elicited through Ms.

Jans proves the truth of the criminal allegations levied in the Organized Crime Letter. There is no evidence of misappropriation of public funds. viii. Other supposedly false documents

[ 137 ] Although not referenced in her closing submissions, Ms. Prpick also led evidence of numerous other Redcliff documents that she characterized as suspicious. One of these was a condominium conversion approval for the Debut Project, which she claimed Ms. Simon had somehow improperly and unnecessarily compelled her agent to complete. [ 138 ] Ms. Prpick claimed never to have known of this conversion. In cross-examination, however, she was shown not only that her professional development consultants had brought the application to Council on a rush basis on her behalf, but that Ms.

Prpick had been personally present when it was addressed and passed by Council. It bears mention that Ms. Prpick herself testified that her development consultant had over forty years of experience in the field. [ 139 ] Ms. Prpick continues to advance in her closing submissions that these events were an instance of “Simon fabricating subdivisions”, whatever that might mean.

It is difficult to make sense of this contention, especially since the evidence was clear that Debut secured exactly the legal re-alignment and re-classification to its property that it sought and that was necessary to effect its development, which was successfully, albeit not profitably, completed. Ms. Prpick appears to believe that Ms.

Simon, a town administrator, controlled and manipulated her lawyer, her banker, and her development consultant in ways that neither the evidence nor basic logic support. [ 140 ] There was also evidence led that a number of the permits for the Debut Project may have been multiply issued. This appears to have been a function of Redcliff moving to an electronic permits system and a new administrator attempting to rectify/consolidate previously issued documents. Notably, Ms.

Prpick called her builder, with whom she had also been in litigation at some point, and nothing in his testimony suggested that there was any impropriety in the town’s operations. Ms. Prpick confirmed that no one from the town ever told Debut to stop working on the Debut Project because they did not have the right permits. [ 141 ] Nevertheless, Ms. Prpick continues to argue that Ms. Simon “fabricated development permits”. There is no evidence that permits were “altered” in any way and every permit was sought and paid for by Ms. Prpick’s development consultant or her builder.

While there is some confusion in the paperwork and record keeping, there is no evidence of criminal conduct. [ 142 ] The Court also heard that the process of lot re-alignment and re-numbering resulted in errors whereby tax arrears improperly accumulated against one of Debut’s properties. While this no doubt caused considerable concern at the time, the error was corrected and the matter resolved. [ 143 ] None of these examples provided any evidence of wrongdoing, much less criminality.

At worst, they showed Redcliff to be a small municipality that occasionally suffered clerical errors, imprecision, and process-flow problems in relation to developments during the 2000s. There is no evidence that the public servants in Redcliff were anything but honest and well intentioned in their work and treatment of the public throughout this time. [ 144 ] Ms. Prpick also argues that Ms. Simon is somehow responsible for unnecessary zoning changes to Debut’s land. Rezoning was done by Council and duly recorded in Minutes. No impact on Debut is alleged, as Ms.

Prpick only “found out” about this years later, according to her submissions. There is no evidence or logical path that could lead from these facts to a finding of wrongdoing. ix. Zoning disputes/discrepancies [ 145 ] In her submissions, at paragraph 200(o), Ms. Prpick makes a detailed argument about zoning, setback requirements, and the alleged and potential impacts this had on the Debut Project. These facts were not in evidence but, even if they were, nothing in what she submits is in any way criminal in nature.

This point appears particularly illustrative of the degree to which she conflates her commercial grievances with the town regarding the Debut Project with criminal wrongdoing. x. Third Party land sales [ 146 ] Ms. Prpick’s allegation in this regard is difficult to follow. Redcliff appears to have sold off some of its lots by installment or on an option basis. Nothing in the evidence supported any inference of impropriety in these matters. xi. Evidence of a “development scheme” [ 147 ] Ms.

Prpick claims that the fact that homeowners in Redcliff, including herself, experienced “issues as a result of the underground mining and improper subdivision development” of the town has resulted in residents losing their homes to property tax recoveries by Redcliff. The evidentiary record does not sustain this. More pertinently to this defamation suit, even if evidence of improvident development permissions were before me, that would not support an allegation of criminality. xii. Conclusion on justification [ 148 ] While these reasons largely track Ms.

Prpick’s submissions, I have not mirrored her points in defence of the truth of her allegations entirely. I have, however, considered all of her arguments and reviewed the entirety of the evidence – both the exhibits and the transcripts – and cannot discern the slightest hint of criminal conduct by the Plaintiffs, the town of Redcliff, or anyone else. [ 149 ] The statements in the Organized Crime Letter, asserting organized crime and widespread corruption in the municipal administration of Redcliff are, on the evidence heard in this trial, utterly unsupported. Ms.

Prpick has failed to justify her defamatory statements. D. Qualified Privilege [ 150 ] Ms. Prpick also claims that the Organized Crime Letter is shielded by qualified privilege. This doctrine recognizes that there are certain occasions on which a person should be able to communicate negative information about someone to an individual or organization

who has a duty to receive such reports: Huff v Zuk, 2021 ABCA 60 at para 52. It protects individuals who have a social, legal, or moralduty to report otherwise defamatory information, when they communicate it solely to those who have a reciprocal duty to receive and acton it: Bent v Platnick, 2020 SCC 23 at para 121. [151] Qualified privilege exists to protect socially useful communications that otherwise would attract civil liability as defamatory:Torstar at para 94.

In other words, it allows one to say bad things about someone else, that may turn out to be not true, usually in theform of a complaint, report, or warning, where it is important for the recipient to have that information in fulfillment of their societal roleand duties. [152] Reporting possible crimes to the police is a prime example of a circumstance covered by qualified privilege: Chopra v T EatonCo Ltd, 1999 ABQB 201 at paras 209-211; Caron v A, 2015 BCCA 47 at paras 37 and 54; Hobbs v Warner, 2021 BCCA 290 at para28; Gittens v Brown, [2003] OJ No 2895 (SC) at paras 29-30; Jardine v Hyggen, 2018 SKCA 38; Caron v A (Litigation guardian of),2015 BCCA 47 at para 37; Cusson v Quan, 2007 ONCA 771 at para 39, rev’d on other grounds 2009 SCC 62.

This extends to soundingthe alarm to the relevant authorities over corruption by public officials: Brown on Defamation at 13.6(4)(c)(ii): It is in the public interest that information regarding misconduct, neglect or incompetency of public officials should be communicated tothe appropriate offices for correction, and that the information is protected by qualified privilege. [153] Publishing reports of such corruption to the appropriate ministers of the Crown, and other interested officials, has beenrecognized as a legitimate occasion of privilege: Paul et al v Van Hull et al (1962), (MB KB), 36 DLR (2d) 639(MBKB) at pp 656-657.

Whether such a communication to members of the media enjoys similar protection is more contentious, but forpresent purposes, I am prepared to assume without deciding that all those copied on the Organized Crime Letter had a duty to act onallegations of municipal corruption. i.

Did the Organized Crime Letter exceed the bounds of the privilege? [154] The limits of qualified privilege were described by the Supreme Court in Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130 at paras 144-147 as follows: ...the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or expressmalice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149. Malice is commonly understood, in the popular sense, as spite or ill-will.

However, it also includes, as Dickson J. (as he then was)pointed out in dissent in Cherneskey, supra, at p. 1099, "any indirect motive or ulterior purpose" that conflicts with the sense of duty orthe 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 the truth. SeeMcLoughlin, supra, at pp. 323-24, and Netupsky v. Craig, (SCC), [1973] S.C.R. 55, at pp. 61-62.

Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. See The Law of Defamation inCanada, supra, at pp. 13-193 and 13-194; Salmond and Heuston on the Law of Torts (20th ed. 1992), at pp. 166-67. As Loreburn E.stated at pp. 320-21 in Adam v. Ward, supra: ...the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is notrelevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates theprivilege will not be protected.

In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on theoccasion when that information was given... [155] Thus, an occasion of qualified privilege is, as its label implies, limited by what is reasonably necessary to achieve the protectedpurpose within the specific context: Elkow v Sana at paras 96-99. The Plaintiffs argue that the Organized Crime Letter was bothinflammatory and deceptive, in that it dishonestly mischaracterized the history and status of the police investigations to date. I find thatboth of these assertions are correct.

There is no question that the Organized Crime Letter was emotionally elevated, hyperbolic, andfactually selective. [156] It has, however, been held that inappropriate, intemperate, and even offensive language will not necessarily defeat a qualifiedprivilege that the defendant has otherwise established: Chohan v Cadsky, 2009 ABCA 334 at para 108.

Chohan case made clear that theanalysis must focus on whether the defamatory communication went beyond what was “germane” to the legitimate purposes of theoccasion: ibid at para 106; see also Chapman v L’Hirondelle, 2012 ABCA 25 at para 6. [157] In this case, if the facts asserted in the Organized Crime Letter, about both the Plaintiffs and the police investigations to date,were true, or even wrong but reasonably capable of belief, I would not find that they went beyond what was relevant to calling attentionto the situation.

Therefore, while the tone and misleading tenor of the Organized Crime Letter are relevant to the presence of malice,they do not take it outside the scope of qualified privilege. ii. Malice [158] A claim of qualified privilege may be defeated where it is shown that “the dominant motive for publishing is actual or expressmalice”: Botiuk at para 79. Malice, in turn, encompasses (

i) knowledge that the defamatory statements were false; (ii) recklessindifference to whether they are true or false; (iii) uttering the libel for the dominant purpose of injuring the plaintiff because of spite oranimosity; or (iv) doing so for a dominant purpose not related to the occasion: Smith v Cross, 2009 BCCA 529 at para 34. [159] The Supreme Court of Canada explained the meaning of malice in the context of qualified privilege in Hill at para 145,

emphasizing that knowing or reckless disregard for the truth of the defamatory words is malicio

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