Syed Hyder Ali Plaintiff - v. -, 2022 ABKB 812

Court of King’s Bench of Alberta Citation: Ali v Pakistan Canada Association of Edmonton, Alberta, 2022 ABKB 812 Date: 20221205 Docket: 1803 18210 Registry: Edmonton Between: Syed Hyder Ali Plaintiff - and - Pakistan Canada Association of Edmonton, Alberta Defendant _______________________________________________________ Ruling on a Non-Suit Application of the Honourable Justice L.R.A. Ackerl _______________________________________________________ Introduction [ 1 ] The Plaintiff, Syed Hyder Ali (“Mr.

Ali”), is suing the Defendant, the Pakistan Canada Association of Edmonton, Alberta (“PCAE”), alleging defamation for statements made against him at a special general meeting of PCAE and breach of contract for violating the organization’s bylaws. [ 2 ] At the close of Mr. Ali’s case, PCAE brought a non-suit application against Mr. Ali pursuant to r 8.20 of the Alberta Rules of

Court , Alta Reg 124/2010 . For the reasons that follow, the application is allowed in part. Analysis [ 3 ] Under r 8.20, at the close of the plaintiff’s case, the defendant may ask the Court to dismiss an action on the ground that no case has been made.

When making an application for a non-suit under this rule, it is no longer necessary for the defendant to elect whether they will call evidence. [ 4 ] The test for a non-suit is set out in Capital Estate Planning Corp v Lynch , 2011 ABCA 224 at para 19 [ Lynch ], citing Prudential Securities Credit Corp, LLC v Cobrand Foods Ltd , 2007 ONCA 425 at paras 35-36 : On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion.

Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign ‘the most favourable meaning’ to evidence capable of giving rise to competing inferences. ... In other words, on a non-suit motion the trial judge should not determine whether the competing inferences available to the defendant on the evidence rebut the plaintiff's prima facie case. The trial judge should make that determination at the end of the trial, not on the non- suit motion. See John Sopinka, Sidney N. Lederman and Alan W.

Bryant, The Law of Evidence in Canada , 2d ed. (Toronto: Butterworths Canada, 1999) at 139. [ 5 ] At this stage, the trial judge does not weigh the evidence or assess credibility: Lynch at para 20 . Instead, the trial judge must assume all the plaintiff’s evidence is true and draw all reasonable inferences from it: ibid .

The question is whether there is “evidence against the respondents with respect to the elements of each cause of action, which, if left uncontradicted, a reasonable trier of fact could find in its favour”: ibid at para 3. [ 6 ] In this case, PCAE is applying for a non-suit for both causes of action alleged by Mr. Ali: breach of contract and defamation. I will discuss each in turn. Breach of Contract [ 7 ] In his Statement of Claim, Mr. Ali alleges PCAE breached its contract with him, by breaching its own bylaws. Specifically, Mr.

Ali alleges PCAE failed to give its members three weeks notice in advance of the special general body meeting held on September 30, 2017 (the “SGBM”), failed to allow Mr. Ali to appear at the SGBM, and failed to allow him to run in the subsequent Executive Council election. [ 8 ] In its non-suit application, PCAE argues Mr. Ali has failed to call any evidence to show that there was an objective intention between himself and PCAE to enter into an enforceable legal agreement or that his membership was ever accepted by PCAE. As a result, there is no contract between PCAE and Mr.

Ali, and, as such, there cannot have been a breach of contract. [ 9 ] To support its position, PCAE points to the fact Mr. Ali was not aware of the bylaws when he joined PCAE in 2014 or when he renewed his membership in 2015, 2016, or 2017. As well, PCAE argues the PCAE membership application form does not contain any reference to the PCAE bylaws or any standard contract terms that would indicate an objective intention to enter into a legally enforceable agreement.

Further, PCAE argues that, under its bylaws, it has the authority to choose whether to accept a membership application and that, in this case, it did not accept Mr. Ali’s application. [ 10 ] In response, Mr. Ali points to his 2014 membership application and his 2017 membership application as evidence of a contract between him and PCAE and to the PCAE bylaws as evidence of the terms of that contract.

He argues that, according to the PCAE bylaws, his membership was valid as soon as it was received by the PCAE Executive. [ 11 ] In Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga , 2021 SCC 22 [ Aga ], the Supreme Court of Canada explained that the general principles of contract law apply to determine whether there is an enforceable contract between a voluntary organization and a member of that organization: at para 34. The mere fact that an organization has bylaws is not enough to establish an intention to form enforceable legal relations: ibid at para 3.

Instead, for there to be a contract, there must be an offer by one party that is accepted by the other with the intention of creating a legal relationship: ibid at para 35. [ 12 ] According to the Supreme Court in Aga , the test is “whether parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract”: at para 36, citing G. H. L. Fridman, The Law of Contract in Canada , 6th ed (Toronto: Carswell, 2011) at 15.

In making this determination, the Court may take into account the surrounding circumstances to determine whether a reasonable person would conclude that the parties intended to be bound by a contract: ibid at para 37. [ 13 ] In this instance, I conclude there is no evidence that the parties intended to enter into a legal relationship when Mr. Ali obtained his membership, whether in 2014 or in 2017. Mr. Ali relies on his application form as evidence that a contract was formed.

However, the Supreme Court was clear in Aga that an agreement alone does not create a contract without an objective intention to enter into legal relations: at paras 21-22. As PCAE points out, there is no language in the application form to indicate it was meant to be a legal binding contract. Mr. Ali also did not provide any evidence of the surrounding circumstances that could indicate an objective intention to form a contractual relationship, either in 2014 or 2017. [ 14 ] Of particular importance, Mr. Ali argues the bylaws constitute the terms of the agreement between him and PCAE. However,

as a matter of law, a contract cannot have been formed if the parties did not agree to the terms of the contract: Aga at para 36 ; see also John D. McCamus, The Law of Contracts , 3d ed (Toronto: Irwin Law, 2020) at 31. In this case, Mr. Ali admitted he was not aware of the bylaws and had not reviewed them until after he submitted his application form in 2017. As a result, if Mr.

Ali was not aware of the bylaws, there cannot have been an intention to enter into legal relations according to their terms, and, according to his own evidence, a legally binding contract cannot have formed between him and PCAE. [ 15 ] In their submissions, both parties addressed the secondary issue of whether PCAE accepted Mr. Ali’s offer—i.e., his application for membership—by receiving his membership application, either in 2014 or in 2017.

Given my conclusion that there was no intention to enter into a legally binding contract, it is not necessary for me to consider whether this constitutes a valid offer and acceptance. Defamation [ 16 ] In his Statement of Claim, Mr. Ali alleges PCAE defamed him at the SGBM on September 30, 2017. He specifically alleges PCAE made three defamatory statements: 1. Mr. Ali tarnished the image of the Pakistani community and assaulted the ladies and young daughters of the community; 2. Mr. Ali was banned by the police from entering the PCAE premises and from attending any PCAE functions; and 3. Mr.

Ali illegally and forcefully entered the Pakistani pavilion during the Heritage Days festival. [ 17 ] Mr. Ali further alleges these statements were republished in the minutes of the SGBM (the “Minutes”), which were distributed to the approximately 3,000 members of PCAE. [ 18 ] In support of its non-suit application, PCAE argues Mr. Ali has failed to call any evidence to show the alleged defamatory statements in the Minutes were ever published to a third party. In the alternative, PCAE argues the comments were covered by qualified privilege and Mr.

Ali has not put forward any evidence to show the comments were motivated by malice or a purpose unrelated to the SGBM, so as to remove them from that privilege. I will address these arguments in turn. Publication [ 19 ] The three essential elements of defamation were set out by the Supreme Court in Grant v Torstar , 2009 SCC 61 at para 28 . They are: 1. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; 2. The words referred to the plaintiff; and 3.

The words were published, meaning they were communicated to at least one person other than the plaintiff. [ 20 ] If these three elements are established on a balance of probabilities, then the falsity of the words and the damage caused by them are presumed: ibid . In Alberta, the common law presumption of damage is codified in the Defamation Act , RSA 2000, c D-7 , s 2(2).

Notably, defamation is a strict liability tort, which means the plaintiff does not need to prove the defendant was careless or intended to do harm: Grant v Torstar at para 28 . [ 21 ] To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to at least one third party who has received it: Crookes v Newton , 2011 SCC 47 at para 16 . The form of publication does not really matter, so long as it has been received: ibid . [ 22 ] In this case, PCAE argues Mr.

Ali failed to call any evidence to show that the alleged defamatory statements were spoken at the SGBM, that they were spoken by any member of the PCAE Executive Council, or that the Minutes were published to any third party. Specifically, PCAE argues that, as Mr. Ali was not at the meeting, his own testimony cannot support what occurred at the SGBM. Moreover, there is no evidence on the record that the Minutes are an accurate recording of any one individual’s statements. Instead, the evidence shows the Minutes are a summarized English translation of an Urdu

summary of comments made by multiple community members, and the translation was made by an individual for whom English is a second language and done some time after the SGBM. [ 23 ] In response to the non-suit application, Mr. Ali relies on the Minutes of the SGBM as evidence the alleged defamatory statements were published. The third paragraph of the Minutes reads in part, as transcribed: Membership issue of Mr. Hyder Ali, who tarnished the image of Pakistani Community and assaulted the ladies and young daughters of the community.

Arshad Ahmed Malhi Vice President of PCAE explained the reason of this special GMB. He told the members that the executives , as per the PCAE bylaws, do have the authority to decide about giving the membership or not giving a membership. Despite of this authority the present executive board wants the community to decide and then The Vice President explained to the community as to how Mr. Hyder Ali has tarnish the image of the community and how he is involved in spreading the false hood on social media. Stating from falsely accusing the PCAE team of assaulting him( as a result of this false allegation Mr.

Hyder Ali was banned by police to enter the PCAE premises and to attend any PCAE functions) to character assassination. Mr. Hyder then illegally and forcefully entered inside the Pakistani pavilion during the Heritage days. He also insulted the respected ladies and their young daughters during a peaceful protest in front of the Alberta legislature assembly, which was attended by all walks of life. The eye witnesses gave the full account of his wrongdoings and his abusive behaviour.

[24] I agree with Mr. Ali that the Minutes provide some evidence the alleged defamatory statements were published by a memberof the PCAE Executive to a third party other than Mr. Ali during the course of the SGBM. The Minutes say the Vice President explainedthe reason for the SGBM to the members. The Minutes then say the Vice President explained how Mr. Ali has tarnished the image of thecommunity and spread falsehood on social media. Simply, this is some evidence the Vice President said Mr. Ali has tarnished the imageof the community, which is part of the first defamatory statement alleged by Mr.

Ali. [25] From there, the Minutes describe how Mr. Ali falsely accused the PCAE team of assaulting him, how he was banned bypolice from entering the PCAE premises or attending PCAE functions, how he illegally and forcefully entered the Pakistani pavilionduring Heritage Days, and how he insulted the respected ladies and their young daughters during a peaceful protest at the AlbertaLegislature. The Minutes do not directly attribute these statements to the Vice President.

However, it is possible to infer that he spokethese statements as part of his explanation of the reasons for calling the SGBM. [26] This possible inference is supported by the evidence of the General Secretary for PCAE at the time of the SGBM, Iqbal Khan,who was the author of the Minutes. He testified the Vice President had provided background for the meeting at the SGBM, and thebackground included the allegations made in Mr. Ali’s Statement of Claim. PCAE relies on Mr. Khan’s statement that none of theExecutive members made the alleged defamatory comments at the SGBM.

However, considering his other evidence, it could be inferredthis means none of the Executive members were the original source of the comments, even though they were provided by the VicePresident as part of the background at the SGBM. As such, the Minutes and Mr. Khan’s testimony provide some evidence of theremaining defamatory statements alleged by Mr. Ali. [27] I note that PCAE also relied on Mr. Khan’s testimony that the Minutes were a translated

summary of an Urdu

summary ofwhat happened at the SGBM. However, as these arguments go to weight, they are not appropriate considerations for a non-suitapplication. [28] Mr. Ali also alleged that the defamatory statements were published when the Minutes were sent out to the PCAE members. Ido not think there is any evidence on the record to show the Minutes of the SGBM were published. Iqbal Khan testified he did notprovide the Minutes to anyone in the membership, and he did not post them online. Mr.

Ali also testified he had never been providedwith the Minutes after a PCAE meeting, and he was not aware of anyone posting the Minutes online. From this, I conclude there is noevidence on the record to show the Minutes were published to a third party other than Mr. Ali. Qualified Privilege and Malice [29] PCAE argues as an alternative that any statements made by PCAE at the SGBM or in the Minutes are protected by qualifiedprivilege. In support of this argument, PCAE points to evidence the SGBM was a members-only event convened to allow theorganization’s membership to voice their concerns about Mr.

Ali’s behaviour and to discuss his membership application. Further, PCAEargues Mr. Ali has not called any evidence to show the alleged statements were made out of malice, so he cannot defeat the privilege. [30] In response, Mr. Ali points to text messages sent to him by the then Vice President of PCAE on February 13, 2017, Facebookposts made by PCAE Executive members and by Mr. Ali, WhatsApp messages, a police report dated April 27, 2017, and a witnessstatement that Mr. Ali made on September 8, 2017, all of which he argues demonstrate malice by members of the PCAE Executive.

Healso relies on his own testimony about the February 12, 2017 PCAE meeting, his Provincial Court claim filed on September 1, 2017, andhis stated intention to run for the PCAE Executive. [31] Qualified privilege protects a situation where “the person who makes a communication has an interest or a duty, legal, social,or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty toreceive it”: Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130 at 1188-89 [Hill], citing Adam v Ward,[1917] AC 309 (HL) at 334.

The privilege attaches to the occasion when a communication is made and not the communication itself:ibid. If an occasion is privileged, then the defendant can make defamatory or untrue statements with impunity: ibid at 1189. [32] Importantly, it is possible to defeat qualified privilege, so that it no longer protects the statements made at a privilegedoccasion. This can happen in two ways. First, if the dominant motive for publication of the statements was actual or express malice, thenthe privilege is defeated: Hill at 1189; Alberta Computers.com v Thibert, 2021 ABCA 213 at para 68 [Thibert].

In the context of adefamation action, malice means spite or ill will, but it also means any motive or purpose that conflicts with the duty or interest behindthe qualified privilege: Hill at 1189. Malice can also be established by showing the defendant spoke dishonestly or in knowing orreckless disregard for the truth: ibid.

The second way qualified privilege can be defeated is if the limits of the duty or interest have beenexceeded, such as when the information communicated was not reasonably appropriate to the legitimate purposes of the occasion: ibid atparas 1189-90; Thibert at para 68. [33] It is a question of law whether an occasion of qualified privilege exists: Thibert at para 67, citing Donald v Tucker, (SCC), [1952] 1 SCR 275.

In this case, PCAE cites two cases holding that discussions about membership issues within anorganization attract qualified privilege: Halmrast v Chisholm, (AB KB), [1924] 1 WWR 140 (ABSC (TD)) at para 4;Maass v Seelheim, (MB KB), [1936] 3 WWR 450 (MBKB) at paras 16-18. [34] Mr. Ali did not seriously contest this position, and I agree that a meeting called by a social organization to discuss amembership issue is an occasion that attracts qualified privilege: see also Raymond E.

Brown, Brown on Defamation: Canada, UnitedKingdom, Australia, New Zealand, United States, 2d ed, loose-leaf (Toronto: Thomson Reuters Canada, 2019) at 13.6(3)(d)(vii). In thiscase, PCAE has a duty to discuss membership issues with its existing members, and those members have a corresponding interest in thediscussion. [35] Given there is a qualified privilege that attaches to the SGBM, the onus is on Mr. Ali to put forward some evidence to defeatthe privilege or be subject to a non-suit: Dewe v Waterbury, 1881 CanLII 37 (SCC), [1881] 6 SCR 143. In this case, Mr.

Ali argues theExecutive of PCAE made up falsehoods about him, because they were threatened by him. Mr. Ali argues the animus between him andthe Executive began at the February 12, 2017 meeting to discuss the new PCAE bylaws, where he challenged the Executive and their

handling of PCAE funds. Mr. Ali points to the text messages he received from the Vice President of PCAE the next day as a sign of the Executive’s animosity towards him. [ 36 ] Mr. Ali also relies on the series of events that followed the PCAE meeting as evidence of the PCAE Executive’s ill will towards him. Specifically, he relies on his own account of the events of April 27, 2017 and the police report about the incident to show PCAE would not address his concerns about his membership and, instead, banned him from PCAE premises and functions.

He also relies on a series of Facebook posts and WhatsApp messages from members of the Executive that he says show their intention to deny his membership. He relies on his description of the events that took place at the Heritage Days Festival in 2017, which he says indicate he was welcomed at the event by PCAE members other than the Executive. He argues the PCAE Executive was acting in retaliation for his Provincial Court Civil Claim against PCAE and two members of the Executive, which was filed on September 1, 2017. As well, on September 8, 2017, Mr.

Ali says he went to the Legislature Grounds and got into a verbal altercation with a woman he alleges is a member of the Executive. [ 37 ] On a non-suit application, I must set aside any assessment of credibility or reliability and draw only the inferences from the evidence that are most in favour of Mr. Ali. With this limited assessment, I am satisfied that Mr. Ali has put forward some evidence, which, if true, could support an inference of malice on the part of the PCAE Executive. Conclusion [ 38 ] The non-suit application is allowed with respect to Mr. Ali’s claim for breach of contract.

It is also allowed for his claim for defamation based on publication of the Minutes from the SGBM. It is dismissed with respect to his claim for defamation based on the alleged defamatory statements spoken at the SGBM. [ 39 ] Given the mixed success of the parties, they will each bear their own costs. Heard on the 2 nd day of June, 2022. Dated at the City of Edmonton, Alberta this 5 th day of December, 2022. L.R.A. Ackerl J.C.K.B.A. Appearances: Syed Hyder Ali (Self-Represented) for the Plaintiff Aaron Micah Hymes Ogilvie LLP for the Defendant