2012 QCCQ 7898, 2012 QCCQ 7898

Lukawecki c. Bayly 2012 QCCQ 7898 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-151825-083 DATE: October 5th, 2012 ______________________________________________________________________ BY THE HONOURABLE MICHEL A. PINSONNAULT, J.C.Q. ______________________________________________________________________ FRANÇOIS LUKAWECKI Plaintiff/Cross-defendant v.

JOANNE BAYLY Defendant/Cross-plaintiff ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Can the mother of a child, attending an elementary school, be found liable towards one of the child’s teachers for damages allegedly caused to his reputation as a result of her sending, to various persons involved with the school, a series of emails that purported to describe or complain of the teacher’s behaviour at a specific event?

The teacher considers the statements made by the parent to be totally false and alleges that the parent organized a malicious campaign to destroy his reputation. [ 2 ] Plaintiff, Mr. François Lukawecki (“ Mr. Lukawecki ”), is a teacher working at Bancroft Elementary School (“ Bancroft ” or the “ School ”) on Plateau Mont-Royal in Montreal since September 2001. [ 3 ] Defendant, Mrs. Johanne Bayly (“ Mrs. Bayly ”), was, at all relevant time, a parent of a student attending Bancroft and Mr. Lukawecki was one of her child’s teachers. [ 4 ] Mrs.

Bayly was, at the relevant time, a member of the Parent Participation Organization (“ PPO ”) of the School. François Lukawecki’s claim [ 5 ] Mr. Lukawecki is seeking $10,000.00 in compensation for damages to his reputation caused by Mrs. Bayly as well as punitive damages in the amount of $5,000.00. [ 6 ] Mr. Lukawecki essentially alleges that since an incident that occurred on October 24 th , 2007 (the “ October 24 th Incident ”), Mrs. Bayly has organized a malicious campaign to destroy his reputation. In that context, Mrs. Bayly sent various emails attacking Mr. Lukawecki. In those emails, Mrs.

Bayly dramatized and falsely described certain events that had recently occurred. According to Mr. Lukawecki, the emails sent by Mrs. Bayly, without his knowledge, contained defamatory statements. In his Statement of claim, Mr. Lukawecki outlined the many defamatory allegations made in a series of some 9 emails filed as Exhibits P-1 to P-9 (collectively referred to as the “ Emails ”). These statements are reproduced later in this judgment. Joanne Bayly’s defence and cross-demand and the action in warranty [ 7 ] Prior to filing her defence, Mrs.

Bayly instituted an action in warranty against some eleven members of the governing board

of the School (the “ Board ”), of the PPO, certain teachers and administrators of Bancroft as well as the president of the Montreal Teachers Association. [ 8 ] In a rather lengthy defense of 141 paragraphs, Mrs. Bayly essentially denied any responsibility and owing any damages to Mr. Lukawecki. [ 9 ] However, although the principal claim rested exclusively on the defamatory statements made in the nine Emails, Mrs.

Bayly chose to expand substantially the debate and placed the emphasis on the political context that prevailed at the time at Bancroft, on its Board, the PPO as well as the involvement of the English Montreal School Board (the “ EMSB ”) and of the Montreal Teachers Association (the “ MTA ”) against her husband, Mr. Julien Feldman (“ Mr. Feldman ”) and herself. [ 10 ] Mrs. Bayly claimed that the present lawsuit against her was essentially a ploy by the MTA, who is funding these proceedings for its member Mr.

Lukawecki, to indirectly attack, with the assistance of the various Defendants in Warranty, her husband, Mr. Feldman, who used to be chairperson of Bancroft Board and was subsequently elected as school commissioner, as a result of a highly contested election. [ 11 ] Mrs. Bayly also filed a cross-demand against Mr. Lukawecki claiming moral damages of $20,000.00 and punitive damages of $10,000.00 for his abusive behaviour towards her during the October 24 th Incident. [ 12 ] As to the recourse in warranty and in light of their involvement with Mr. Lukawecki (conspiracy and collusion), Mrs.

Bayly asked that all Defendants in Warranty be condemned solidarily with ( sic ) her, should she be found liable towards Mr. Lukawecki. [ 13 ] However, on October 12 th , 2011, Mrs. Bayly filed a Notice of Discontinuance of her recourse in warranty against all Defendants in Warranty. [ 14 ] As a result of the discontinuance, the trial took place between Mrs. Bayly and Mr.

Lukawecki as the only parties and the great majority of the allegations of the defence and cross-demand became irrelevant, to all intents and purposes, as they related to the Defendants in warranty. [ 15 ] Nevertheless, throughout the trial, Mrs. Bayly steadfastly tried to introduce in evidence facts and events that took place before and after the October 24 th Incident, claiming that they were relevant to explain Mr. Lukawecki’s unacceptable behaviour that she referred to in her Emails. In other words, these additional facts and events attest to Mr.

Lukawecki’s volatile and abrasive temper and attitude towards not only Mrs. Bayly, but other parents, children and even teachers. This would explain his unjustified and unprovoked outburst on October 24 th , 2007 against Mrs. Bayly. [ 16 ] It is important to point out that, for the essential, most of the allegations of the defence involve Mrs. Bayly’s husband, Mr.

Feldman, who was a member of the Bancroft governing board since at least 2006 and who was elected school commissioner on November 4 th , 2007 after a bitter election that was subsequently unsuccessfully contested by the candidate who lost by only six votes (Julien Feldman 319 votes/George Vogas 313 votes). The legal contestation was eventually abandoned by Mr. Vogas. [ 17 ] According to Mrs. Bayly, during most of his tenure on the Board, Mr. Feldman sat with Mr. Lukawecki, one of the teachers’ representatives on the Board. Mr. Lukawecki is described as the main leader who repeatedly attempted to block Mr.

Feldman’s projects and in particular, the bilingual program and the playground and exterior beautification projects. Mr. Feldman was the person leading a movement to convert Bancroft from an English into a bilingual school, a move that was somewhat resisted over time by the teachers, the school management and the teachers’ union, the MTA. As to the playground and the exterior beautification projects, Mr. Feldman wanted to transform the exterior of the school located on the Plateau Mont-Royal on St-Urbain Street from asphalt into a green, kid- friendly space with a playground. Although, Mr.

Feldman was instrumental in successfully raising funds, the two projects never materialized due to the impossibility for the members of the Board to agree. For example, members of the Board including Mr. Lukawecki were opposed to a playground set in the schoolyard with wood chips on the bottom, due to fire hazards and mainly, due to the fact that used syringes and needles could be buried there, given the geographical situation of the School on Plateau Mont-Royal. [ 18 ] Be that as it may, Mrs. Bayly considered that Mr.

Lukawecki’s repeated positions taken on the Board against her husband’s proposals and projects were reflected in his behaviour towards her during the October 24 th Incident. Mr. Lukawecki assaulted Mrs. Bayly verbally in retaliation against her husband. [ 19 ] Besides his obstruction to her husband’s projects on the Board, and in order to further demonstrate his inappropriate behaviour, Mrs. Bayly alleged that: - Mr. Lukawecki would have been involved in a movement inside the School to urge parents not to vote for her husband at the school commission elections on November 4 th , 2007; - After the elections, Mr.

Lukawecki led members of the Board to prevent her husband from participating to the Board meetings other than as a member of the public, with limited intervention powers and have him disqualified as a member of the PPO for conflict of interest, given his new position as school commissioner; - Mr. Lukawecki also organized or led parents and fellow teachers to humiliate her and her husband publicly at hearings held by the School ethic’s commissioner seized with several complaints filed by Board members against Mr. Feldman for different ethics violations. [ 20 ] To further establish Mr.

Lukawecki’s tendency to misbehave in public towards others, Mrs. Bayly also alleged the following two other incidents: - Mr. Lukawecki organized or led parents to hold a protest march outside the School against a fellow teacher, Mrs. Alice Mok, even involving a journalist of The Montreal Gazette who wrote an

article on it; ultimately, the

article was never published;

- With respect to the Alice Mok incident, Mr. Lukawecki abused the teacher verbally and inappropriately in public, therefore showing his tendency to lose control in public and shout at others like he did against Mrs. Bayly during the October 24 th Incident; - As a further example of his inappropriate behaviour, Mrs. Bayly raised the “Apple Incident” that would have occurred in October 2006; Mr. Lukawecki was a teacher accompanying students on a field trip to pick apples at an orchard; Mr.

Lukawecki’s apparent unprofessional and unacceptable behaviour in front of parents and children prompted a written complaint filed by Mr. Feldman, Bayly’s husband, to the School Principal, Mrs. Artemis Maravei (D-21). [ 21 ] With all due respect and with the benefit of having heard the evidence over a period of seven days, these various allegations are for the main part totally irrelevant for the questions presently at issue. Other than the elements that may touch Mr. Lukawecki’s behaviour in public towards other people, all the other allegations could only be useful in the context of a law suit instituted by Mr.

Feldman against Mr. Lukawecki, not as a defense in the present case. Mrs. Bayly cannot act in lieu or on behalf of her husband in the present case. QUESTIONS AT ISSUE [ 22 ] In the present case, there is no doubt that Mrs. Bayly wrote the nine Emails and that they were disseminated via the Internet to more than one person for most of them. Mr. Lukawecki is not contesting the fact that at the outset, Mrs. Bayly had the right as a parent to file a complaint in writing against him to Bancroft Principal, Mrs. Artemis Maravei. He however feels that Mrs.

Bayly’s decision to disseminate her initial complaint and her subsequent emails to numerous people violated his rights and caused damages to his reputation as a person but mainly, as a teacher. [ 23 ] In that context, the Court is called upon to determine: - Did Mrs. Bayly make defamatory statements in her nine Emails? - Did Mrs. Bayly commit a fault triggering her civil liability towards Mr. Lukawecki? - If the Court answers in the affirmative to the questions above, did Mr. Lukawecki sustain a prejudice as a result thereof?

Given the identity of the recipients of the Emails, was the prejudice aggravated? - What is the extent of that prejudice? - As to Mr. Lukawecki’s claim for punitive damages, did Mrs. Bayly’s conduct constitute an unlawful and intentional interference with Mr. Lukawecki’s fundamental rights with the meaning of

Article 49 [1] of the Charter of human rights and freedoms (the “ Charter ”) [2] ? [ 24 ] The Court will also have to address the cross-demand based on the same principles. THE FACTS [ 25 ] As previously mentioned, the trial, which lasted some 7 days, gave way to extensive evidence on a multitude of events and incidents that, in retrospective, are for the most

part irrelevant for the purposes hereof. Moreover, the evidence was contradictory. [ 26 ] As a result of the application of the rule of the preponderance of evidence, the following sets out the facts and events that the Court considers to be relevant for the purposes hereof. [ 27 ] However, for a better understanding of the reader, the Court will start with two incidents that occurred prior to the October 24 th Incident. These two incidents are referred to in some of Mrs. Bayly’s Emails that are at the core of Mr. Lukawecki’s claim. In fact, Mrs. Bayly alleged that during the October 24 th Incident, Mr.

Lukawecki’s aggressive reaction was motivated by written complaints previously made by Mrs. Bayly to Principal Maravei concerning what will be referred to as the Candy Incident and the Air Miles Incident. The Candy Incident and the Air Miles Incident [ 28 ] In the fall of 2007, Mrs. Bayly’s 8 year-old daughter is attending grade two at Bancroft. At the time, Defendant is a newly elected member of the PPO as well as the Bancroft Home and School Association, the latter having been created in June 2006 by members of the Board. Her husband, Mr. Julien Feldman, is a member of the Board and of the PPO.

He will become chairperson of the Board and on November 4 th , 2007, will be elected school commissioner for that district. [ 29 ] In September 2007, Mrs. Bayly meets with Mr. Lukawecki at the first parents/teachers meeting of the year, “ Meet the Teacher Night ”. This is their very first meeting. At the time, Mrs. Bayly asks Mr. Lukawecki to refrain from giving her daughter candy at the end of his class. According to Mrs. Bayly, Mr. Lukawecki allegedly refused flatly, explaining that he preferred to resort to candies instead of other rewards such as stickers to improve their behaviour in class. Mrs.

Bayly insisted that her daughter not be given any candy as a reward. Mr. Lukawecki’s version is that he did not refuse but simply, mentioned that he would think about it. The teacher was sensitive to this question, but did not think that it was a major issue. He had just decided to try this new approach at the beginning of the school year a few weeks before. Mrs. Bayly did not see it the same way and chose to write an email to the Principal of Bancroft, Mrs. Artemis

Maravei, on September 21 st , 2007 (D-28) (the “ September 21 st Email ”). [ 30 ] In the email, Mrs. Bayly refers to “ two serious breaches of conduct ” by Mr. Lukawecki. The two incidents constitute, in her opinion, serious issues of both health and ethics . Mrs. Bayly mentions the “Candy Incident”. She strongly objects to the teacher giving the students “ processed candy with sugar and chemicals harmful to a child’s health ”. Mrs. Bayly also mentions that Mr. Lukawecki responded to her demand that he stop feeding candies to her daughter with a simple “ I’ll consider it. ”, which she found offensive as a parent.

Mrs. Bayly objected to Mr. Lukawecki filling her child’s body with trash. [ 31 ] The second complaint raised in the same email relates to Mr. Lukawecki’s request that parents pay for their children’s Scholastic books with cash instead of cheques. She mentions that she broached the subject with Mr. Lukawecki and claims that the latter replied that he preferred to use his credit card to earn rewards (Air Miles). My daughter is at school to learn the curriculum, not to provide her teacher with financial gain. He is paid a unionized salary by the school board.

He is not allowed to use the children to find “extras” . [ 32 ] Mrs. Bayly concludes her September 21 st Email (D-28) as follows: These are serious issues of both health and ethics. I would like to obtain, in writing, a promise that this teacher will no longer feed my daughter junk food in class. As a matter of fact, I believe this unhealthy “bribing” should be stopped for the whole class. I will not have my daughter isolated, and I am just as concerned about the health of her classmates. As for the credit card use, this must be ended immediately.

I will not permit my daughter to be used in an unethical strategy to line a teacher’s pockets. If I do not receive a serious commitment from you promptly, I will have no choice but to take these matters to the school board and to the teachers’ union. [ 33 ] On the same day, Principal Maravei responds: First of all I want to tell you that I am not in favour of candy in the classroom. I had a meeting with François and explained your concerns and made him understand that I am not in favour of using candy as a reward.

He explained to me that he had used it for a few weeks as an incentive and will now be switching to stickers, pencils and privileges. As for the credit card use, he feels it is easier to collect one lump sum which he agrees to charge to his card. This makes the process easier and more efficient for him. However, I pointed out to him that the comment he made was not appropriate. I will be bringing up your two concerns to my staff meeting on Monday. If you wish to speak to François yourself, you can call him or I can have him call you. Please let me know. Arty [ 34 ] On September 24 th , Mrs.

Bayly replies to Principal Maravei as follows: Dear Arty, I appreciate your prompt response. I think I understand that Mr. Lukawecki has promised not to give the children candy anymore. I also understand that you will monitor the situation to make sure he does not slip back into using inappropriate bribes. As for Scholastic, I still believe it is not safe to send cash; especially since cheques are used by many other teachers, including Katy’s former teachers, Ms. Leila and Ms. Marilyn. Even the Scholastic order form says cheques are welcome. Thank you.

Joanne Bayly [ 35 ] The Court will refer to these incidents as the “Candy Incident” and the “Air Miles Incident”, as need be. [ 36 ] The Court cannot help but note the aggressive tone adopted by Mrs. Bayly in her emails towards Mr. Lukawecki, considering that it was her first meeting with her daughter’s teacher and the beginning of the school year. [ 37 ] Mr. Lukawecki offered a somewhat different version. [ 38 ] At the time when Mrs. Bayly raised the candy issue, he had just recently started this new approach and simply mentioned that he was taking her comments under advisement.

He never thought that his response would provoke such a reaction from Mrs. Bayly, the same with the Air Miles Incident. Mr. Lukawecki explained that on the Scholastic books issue, cheques bounced often. This creates unnecessary problems with the supplier. He prefers cash to counter the inconvenience of the cheques and can pay for the children’s books with his credit card. It is simply more convenient to him. However, he regrets the joke that he made with Mrs. Bayly when he added that “ he was getting some air miles out of it ”. It was simply meant as a joke as we are talking of less than 10 Air Miles per school

year. Again, he never anticipated such a response from Mrs. Bayly. [ 39 ] Upon receiving the September 21 st Email, Principal Maravei called Mr. Lukawecki to tell him that Mrs. Bayly had sent her a very strongly worded letter with a very harsh content . Mrs. Maravei did not want Mr. Lukawecki to read it, so he did not. After discussions with Mrs. Maravei, they both agreed that candies should no longer be given to the children. He regretted the inappropriate comment about the Air Miles. It was meant as a joke. Mrs. Maravei told him that she would inform Mrs.

Bayly that all is now settled and that she will get back to him if need be. Mr. Lukawecki did not hear about these two incidents afterwards. For him, the incidents were over. [ 40 ] Yet, in her written defense, Mrs. Bayly mentioned that Mrs. Maravei refused to deal with the Air Miles Incident, which allegedly prompted the transfer of Mr. Lukawecki to a different classroom. The evidence on that particular point is totally absent.

The October 24 th , 2007 incident [ 41 ] For a better understanding of the issues and for questions of credibility, it is necessary to reproduce hereafter a portion of the 141 paragraphs of the defense, in which Mrs. Bayly alleges (NB Mrs. Bayly erroneously refers to October 23 rd , 2007, the right date being October 24 th ): D. THE INCIDENT OF OCT. 23, 2007, SUBJECT OF CURRENT PROCEEDINGS 73.

On the day of the Oct. 23 incident involving Plaintiff that is at question in the current proceedings, Defendant had been asked by PPO member Lynne Wright to replace her in her PPO assignment taking photographs of students trying out for a talent show during lunch hour, for the use of the PPO newsletter being planned by the newly formed and independent PPO; 74. Defendant/Plaintiff in Warrant arrived at the school and checked in at the principal’s office, reminding principal and her secretary that she was there to replace Lynne Wright and would be taking photographs.

The principal agreed and then rushed off to a meeting; 75. Defendant/Plaintiff in Warranty went to gymnasium and waited for students to arrive. When Plaintiff arrived before the students, Defendant/Plaintiff in Warranty politely explained she was there to take photos on behalf of Ms Lynne Wright and had obtained the principal’s permission; 76.

Plaintiff immediately accosted Defendant/Plaintiff in Warranty in a humiliating fashion, loudly yelling in a vitriolic and bullying manner that she was not permitted to present, even though Lynne Wright had previously indicated the PPO’s interest in the lunchtime social activity, and that the event is one provided for in s.90 of the Act; 77. Defendant/Plaintiff in Warranty was startled and asked of Plaintiff, “Are you picking on me because you don’t like my husband?” Plaintiff replied: “I don’t like you. You’re an awful person who wrote a nasty email about me;” 78.

Plaintiff was referring to an email sent to Defendant in Warranty Maravei several weeks earlier, prior to the election campaign, in which the Defendant/Plaintiff in Warranty had explained to the principal that on “Meet the teacher night,” Defendant/Plaintiff in Warranty had asked Plaintiff to refrain from giving her daughter candy on an almost-daily basis and how he had refused – claiming it was the chief method by which he induced his students to behave in class; 79.

At the same “Meet the Teacher Night”, Plaintiff also informed Grade 2 parents he would decline to accept cheques for Scholastic book orders, approving only cash payments, as he wished to pay with an “Air Miles” credit card in order to accumulate points and benefit financially from his student’s orders. The principal had agreed with Defendant about the candy, even making it school policy for all teachers (sic) make use of candy as classroom rewards. However, she refused to deal with the “Air Miles” issue. Plaintiff was subsequently transferred to a different class; 80.

Despite the earlier candy incident, Defendant/Plaintiff in Warranty was taken aback by Plaintiff’s aggressive and vitriolic behaviour and point blank refusal to accommodate the PPO’s need for picture for its newsletter. Defendant/Plaintiff in Warranty returned directly to the Principal’s office, where the Principal intervened by writing a directive note to Plaintiff, directing him to allow Defendant/Plaintiff in Warranty to take pictures; 81.

In all, Defendant/Plaintiff in Warranty spent at least an hour, humiliated and distressed, as various teachers attempted to negotiate with Plaintiff to allow her entrance to the classroom where Plaintiff had moved the students for auditions, to take a few photographs. A junior teacher then intervened, offering to take the photographs on her behalf; 82.When she returned home in great distress, Defendant/Plaintiff in Warranty recounted to her husband how once again Plaintiff had behaved with great insolence and arrogance to a parent; and how he once again had tried to obstruct any activity by the PPO. 83.

Defendant/Plaintiff in Warranty’s spouse contacted Defendant in Warranty Maria Araujo, the recently elected governing board chair, asking her to her (sic) intervene with Plaintiff, as he had been required to do on numerous occasions in the past. He also called PPO Co- chair Lise Herrmann, who informed him that Defendant in Warranty Maravei had reacted hysterically when addressed about the incident, denouncing Defendant/Plaintiff in Warranty as “a liar”, threatening lawsuits against Defendant/Plaintiff in Warranty.

Defendant/Plaintiff in Warranty’s spouse then advised Defendant/Plaintiff in Warranty to address her complaint instead to Defendant in Warranty Roumeliotis; 84. In the following weeks, Plaintiff organized a “counter attack” against parents on the PPO, organizing Defendants in Warranty, members of the governing board, to follow his lead in wreaking havoc among parent volunteer organizations, and in particular, focusing on shutting down the Home and School playground project and directing sustained campaign of defamatory and political attacks against

Defendant/Plaintiff in Warranty’ (sic) spouse; 85. In his Statement of Claim, Plaintiff alleges he suffered stress and anxiety, for which he had to seek medical attention, “caused by the behaviour” of Defendant/Plaintiff in Warranty; 86.

If Plaintiff has cause against anyone, however, it is with his own actions in his practice of treating Bancroft parent volunteers with contempt, his disrespect for school democracy, and most particularly his active participation and leadership in the subsequent vengeful and retaliatory campaign of defamation and vengeance against Defendant/Plaintiff in Warranty and her spouse by Defendants in Warranty - his governing board colleagues and his union leader, Defendant in Warranty Ruth Rosenfield; 87.

Considering the uproar in the school among parents that followed the incident involving Plaintiff and Plaintiff/Defendant in Warranty and resulting email exchanges, Defendant in Warranty’s spouse once more asked the returning officer, Defendant in Warranty Lacroce to intervene with Defendant in Warranty Maravei, concerning Plaintiff’s uncivil behaviour toward his wife, and to make an effort to abate the furious and unruly campaigning ongoing within the school, as filed herein in support thereof as Exhibit D-30; 88.

Less than 12 hours before voters went to the polls in school elections on Nov.4, 2007, Defendants in Warranty members of the governing board – led by Plaintiff and Defendant in Warranty Christina Atkinson, “ emailed a defamatory “poison pen” letter to an email list of members of the Bancroft school community aimed at destroying the reputations of Defendant/Plaintiff in Warranty and her spouse, in order to cast doubt on the veracity of her complaint against Plaintiff and turn potential voters away from the candidacy of Defendant/Plaintiff in Warranty’s spouse, as filed herein in support thereof as Exhibit D-31; 89.

The poison pen letter, sent out under the name of Defendant in Warranty David Krawitz in fact contained numerous false rumours and disinformation concerning the incident involving Plaintiff and subsequent emails complained of by the Plaintiff, thus repeating the alleged defamation, to which Defendants in Warranty and her spouse responded by demanding an apology by 3 p.m. on voting day, as filed herein in support thereof as Exhibit D-32; 90.

Plaintiff may also have cause with Defendants in Warranty EMSB administrators who failed to fulfill their obligation to implement school board policy to mediate and resolve the matter under the Sensitive Interpersonal Situations Policy; 91. If Plaintiff today alleges to have suffered stress and anxiety, which is expressly denied, it is a direct result of the failure to resolve the matter in question in the present proceedings as it could easily have been done – with a simple apology to Defendant/Plaintiff in Warranty, or at the very least, mediation and resolution. 92.

By Plaintiff’s actions to escalate a defamatory war of attrition against Defendant/Plaintiff in Warranty, however, and by attempting to make common cause with the political adversaries of Defendant/Plaintiff in Warranty’s spouse on the council of commissioners, he made a spectacle before the entire Bancroft community, the EMSB community, Council of Commissioners and became solely responsible for his own damages as the truth became known; 93.

If Plaintiff today alleges to have suffered anxiety, it is that he realizes that his general behaviour towards volunteer parents at Bancroft School – uncivil displays of temper, intolerance and frustration towards parents, governing board colleagues, even students who have been deprived of their playground (and corporate sponsors Home Depot and GM/Saturn who have little to show for their goodwill) – was inappropriate within a school community and incompatible with the desired environment of harmony and cooperation that ought to adorn the school environment; 94.

Moreover, recognition of this by the Plaintiff himself is no doubt responsible for his anxious state; 95. If the defendant (sic) is psychologically affected by his own action, which is expressly denied by Defendant/Plaintiff in Warranty, his pleading concerns his own turpitude, which is clearly unlawful; 96. The Defendant/Plaintiff in Warranty, on the other hand, acted in good faith as would any parent in the Bancroft school community; [ 42 ] The evidence actually offered on both sides at trial does not support most of the foregoing written allegations. Mrs.

Joanne Bayly’s version of the October 24 th Incident at trial [ 43 ] On October 24 th , 2007, in the morning, Mrs. Bayly receives an email from Mrs. Lynne Wright, another parent and member of the PPO responsible for a new newsletter to be published in the School by the PPO (the “ Newsletter ”). Mrs. Wright asks Mrs. Bayly to replace her with her PPO assignment taking photographs of students who will be trying out for a talent show during the lunch hour. The photographs are destined to be used in the PPO’s forthcoming Newsletter. Mrs. Bayly accepts to take over and mentions that Mrs.

Wright wrote in her email that she had chatted with Principal Maravei the day before who had agreed to the photo-shoot. [ 44 ] Mrs. Bayly never produced the email in question. [ 45 ] Mrs. Bayly arrives at the School at noon and claims that she met immediately with Principal Maravei to indicate that she was replacing Mrs. Wright and that she would take the photographs. Everything is fine , according to Mrs. Bayly. Principal Maravei is in agreement. [ 46 ] Mrs. Bayly then proceeds to the gymnasium where the tryouts are scheduled to take place. Mr. Lukawecki enters into the

gymnasium with her. At the time, there are no students present. She explains to him that she is here to take photographs of the students and she has the permission of Principal Maravei. [ 47 ] According to Mrs. Bayly, Mr. Lukawecki immediately responded aggressively that she was not permitted to be present. I don’t want you here. You’re the horrible woman who wrote an email against me. I hate you . Mrs. Bayly explains that Mr. Lukawecki was alluding to her September 21 st Email in which she had complained about Candy and the Air Miles Incidents. Mr.

Lukawecki was obviously bearing a grudge against her. [ 48 ] Mrs. Bayly adds that this was my impression of the meeting [with Mr. Lukawecki] . I stood my ground because I got the principal’s permission . [ 49 ] Mr. Lukawecki continues to insult Mrs. Bayly as no one else is present in the gymnasium. [ 50 ] Mrs. Bayly claims to have returned to the Principal’s office. Principal Maravei would have come out of her meeting with a written note destined for Mr. Lukawecki. She remitted the note to her assistant, Mrs. Carla Battista. The note, which was never produced into evidence, was to be given by Mrs. Battista to Mr.

Lukawecki. Mrs. Battista and Mrs. Bayly both returned to the gymnasium. Mrs. Battista entered to meet with Mr. Lukawecki while Mrs. Bayly waited outside in the hall way. Mrs. Battista came back out and asked for Mrs. Bayly’s camera that she gave to someone else. A few minutes later, the camera is returned to her but Mrs. Bayly is not satisfied with the pictures taken by the other person, so she decides to enter the room herself. Mr. Lukawecki is sitting on a small stool. Mrs. Bayly insists that she did not yell or shout at him, it was rather he who started shouting that she was a horrible person.

Yet, she had the Principal’s permission; Mr. Lukawecki had no right to treat her in that fashion. [ 51 ] At that point, Mrs. Bayly comes out and crosses a parent, Mrs. Barbara Hasiotis, who asks her what she is doing at the School. Once informed, Hasiotis tells her: You are not allowed to take pictures . Hasiotis was referring to the School Photo policy. At the time, there was a School policy that required each parent, at the beginning of the school year, to give written permission regarding the taking of photographs of their child during the school year.

If the parent refused to give his or her consent, no photographs of the child could be taken and used. Mrs. Bayly signed such a form every year for her own daughter. [ 52 ] At one point during her testimony, Mrs. Bayly somewhat alters her position: I felt I had the Principal’s permission. [ 53 ] Mrs. Bayly pointed out that Mr. Lukawecki never raised the question of the School Photo Policy, but only referred to the Candy and the Air Miles Incidents, which proves that his behaviour was clearly motivated by his anger against her for sending the September 21 st Email. [ 54 ] I was shocked .

I felt that I had been assaulted by a truck. I was emotionally upset. I stood for an hour in the stairwell. [ 55 ] After, Mrs. Bayly went back home where she immediately wrote the first email related to the October 24 th Incident (P-1) (the “ October 24 th Email ”). [ 56 ] In support to her position, Mrs Bayly produced as witness Mrs. Ann Lise Herrmann, a parent member of the PPO and of the Board since October 2006. Mrs. Herrmann testified that she knew nothing of the October 24 th Incident, other than receiving a telephone call from Mrs. Bayly after the incident.

The latter was crying and claimed that she had been thrown out of the School. Mrs. Hermann acknowledged having received the subsequent Emails adding that it just became like a soap opera . In particular, she received the October 24 th Email and claims that she was involved in what she referred to as an “ email war ”. Mrs. Herrmann admitted to sending the October 24 th Email to others. I helped spread this around. I admit I made things worse. It was just something between them [Mrs Bayly and Mr. Lukawecki]. Mrs.

Herrmann concluded her testimony by saying that the Emails generated an exchange during six month, but the correspondence evolved on the subjects. However, it [the October 24 th Email] set the tone . [ 57 ] Mrs. Bayly also called other witnesses including her husband, Mr. Julien Feldman, Mrs. Anne Lagacé Dowson, a member of the Board at the time, the teacher Mrs. Alice Mok and Mr. Andrew Noble, chairperson of the governing board of another school who knows Mr. Feldman. All these witnesses were not present and did not witness the October 24 th Incident.

Their testimonies covered subjects that did not relate directly to the October 24 th Incident. With all due respect, their testimonies were of very little utility to determine what really happened on October 24 th , 2007 and justify the written statements made by Mrs. Bayly in her Emails. In fact, other than teacher Mrs. Mok, their testimonies touched more the political environment in which Mr. Feldman had to evolve in at Bancroft as well as his expertise in helping other English schools convert to a bilingual program. [ 58 ] Teacher Alice Mok was brought to testify for the purpose of establishing Mr.

Lukawecki’s inappropriate behaviour towards her and his involvement in leading parents to make a public demonstration against her. With all due respect, Defendant’s goal was not reached, in the eyes of the Court. [ 59 ] Mrs. Mok was transferred to Bancroft in 2006 when St-Patrick School closed. She had been a kindergarten teacher for 36 years. For some reasons unknown to the Court, Principal Maravei assigned her to teach to Grade-two and Grade-three classes, something that Mrs. Mok had never done throughout her teaching career. In her mind, Principal Maravei was indirectly trying to get rid of her. Mrs.

Mok also complained about an incident involving Mr. Lukawecki during which he blamed her in front of her pupils for being too strict with them, because they were not kindergarten students she shouldn’t have treated them as such. Mr. Lukawecki would have repeated his comment about her in front of other teachers. The Court understands however, that Mr. Lukawecki did so at the specific request of Mrs. Mok. [ 60 ] Mrs. Mok then took a sick leave of one year. [ 61 ] At the beginning of the following school year, Mrs. Mok crossed Mr. Lukawecki who apparently told her that she should stay

home. She took another leave for the entire year. At the beginning of the following school year, Mrs. Mok was preparing to come back to the School. On the night before the beginning of the classes, a reporter from the Montreal Gazette called to inform her that he was going to publish a story about her in the following day’s Gazette. He informed her of the demonstration planned by the parents. The demonstration never took place nor was any

article published about her. During her testimony, Mrs. Mok mentioned that she had found out the day before, on April 17 th , 2012, that Mr. Lukawecki had organized the protest against her several years before. I knew he did it. I have no proof, but I don’t care . In cross-examination, Mrs. Mok acknowledged that she discovered of Mr. Lukawecki’s involvement in the planned demonstration the day before when she met Me Istvanffy, the attorney for Mrs. Bayly. [ 62 ] With all due respect, the Court is far from convinced that Mr. Lukawecki participated in any manner whatsoever to that planned demonstration.

In fact, he testified that when he heard of it [the demonstration planned by parents who did not want Mrs. Mok to come back at Bancroft], he decided to stay out of it and never got involved. Mr. François Lukawecki’s version of the October 24 th Incident [ 63 ] Basically, Mr. Lukawecki strongly denied Mrs. Bayly’s version of the facts of the events that constituted the October 24 th Incident. [ 64 ] Mr. Lukawecki has been teaching at Bancroft since September 2001. He taught in Ontario before where he obtained university degrees in music and education. In 2007-2008, he taught grade-one and grade-two at Bancroft.

The School is located on the Plateau Mont-Royal, a very friendly place, in his view. In 2007-2008, he was teaching Mrs. Bayly’s daughter. His first meeting with Mrs. Bayly was at the Meet the Teacher Night in September 2007, the evening when the Candy and the Air Miles Incidents occurred. His version of these incidents was already covered previously. There is no need to repeat the same here. [ 65 ] On October 24 th , 2007, as a music teacher, Mr.

Lukawecki volunteers to audition and give pointers, during the lunch recess, to the children (grade 2 to 6) who wanted to participate in the upcoming Talent Show, a couple of weeks later. [ 66 ] The auditions are to take place in the gymnasium, one child at a time; the others are to wait outside, in the hallway. [ 67 ] At lunch time, Mr. Lukawecki proceeds to the gymnasium. Mrs. Bayly is at the door and tells him that she wants to take pictures of the children during the auditions. He is totally unaware of it and answers that it cannot happen. He explains to Mrs.

Bayly that his position is based on the School Photo Policy. The students that he will audition are not all of his own students. He has no idea which ones are authorized to be photographed and which ones are not. He cannot allow it without knowing that their parents have consented to their children being photographed. Moreover, the kids are nervous about their act . Having someone present taking pictures, as they perform, would be unnecessarily stressful for them. Mr.

Lukawecki adds that if it had been approved by Principal Maravei, he would have been told before hand and he would have received a written notice about it. Mrs. Bayly never showed him a written note from the Principal’s office attesting that she was authorized to take pictures. If the PPO had been authorized to proceed to such a photo- shoot session, he would surely have been told in advance. [ 68 ] Back to the incident, Mrs. Bayly is very upset by Mr. Lukawecki’s response. She responds that she will nevertheless take pictures. He asks her to leave and Mrs. Bayly refuses. No, I am staying right here . Mr.

Lukawecki does not argue and simply leaves the gymnasium to go to his own classroom to hold the auditions in peace. As he leaves the gymnasium, Mrs. Bayly is shouting at him that he is a petty man, immature, etc. She is enraged and mentions, among other things, her husband, Mr. Julien Feldman, as chairman of Bancroft Governing Board. Children are on the other side of the door in the hallway and they can hear her shout. [ 69 ] In his classroom, Mr. Lukawecki is able to conduct the auditions. [ 70 ] At one point, Mrs. Carla Battista, the Assistant to Principal Maravei knocks on the door of his classroom.

She tells him that Mrs. Bayly is very upset and it is not over . Mrs. Battista adds Do what you have to do . Mrs. Battista has a camera and asks Mrs. Melissa Olson, who is present in the classroom for the audition of her daughter, to take a few pictures of her if she agrees. Mrs. Olson will do so and will return the camera in the hallway to Mrs. Bayly. Apparently, Mrs. Bayly is not satisfied with the pictures taken by Mrs. Olson. Afterwards, according to Mr. Lukawecki, Mrs. Bayly “barges” in his classroom. Her face is bright red: I am going to take photos .

She comes next to him to a point where he feels physically threatened. She is pointing a finger at him. Mr. Lukawecki thinks that she is going to hit him. She shouts obscenities at him. He is in shock. He does not want to engage. As Mrs. Bayly goes to his desk and sits down saying I am staying right here! , Mr. Lukawecki decides to cancel the auditions and retires to the teachers' room. He claims that he was wiped out . Later, he reports the incident to Principal Maravei. [ 71 ] The next day, things got worse. Mrs. Maravei tells him that she has received the October 24 th Email from Mrs.

Bayly adding that her facts of the incident are completely different from the ones he related to her the day before. He learns that Mrs. Bayly is demanding a written apology from him, assurances that he will not harm her daughter and that she seriously questions his suitability to act as a teacher. Mrs. Maravei does not want to show to Mr. Lukawecki the actual email because it is too upsetting and full of lies . Mr. Lukawecki will only obtain a copy of this email as well as all the others that followed, on November 5 th , 2007.

It is only then that he will realize that the first email of October 24 th was not only sent to Principal Maravei but to some 18 other recipients including a Regional Director of the EMSB and some persons that he did not even know. [ 72 ] Mr. Lukawecki was devastated. The content of the October 24 th email is heavy and serious, if true . It caused him great distress especially due to the fact that Mrs. Bayly disseminated her Emails to numerous people, parents and members of the EMSB, including some of whom he did not even know.

The Emails could destroy his teaching career if they fall into the hands of parents, especially, that the accusations are not made by any ordinary person. In his view, Mrs. Bayly is a well-known news lady at CBC Montreal. If you are an Anglophone living in Montreal, you are likely to get your news from her. As news lady in the Montreal English community, she must speak the truth . In Mr. Lukawecki’s eyes, Mrs. Bayly came with a high degree of credibility in the community.

[ 73 ] The October 24 th Email was not an exaggeration of events but contained lies that were dangerous to his reputation if believed by the reader. Moreover, the recipients also comprised regional directors of the EMSB. It definitely tainted his reputation with his employer, especially when one raises doubts about the safety of a child in the presence of a teacher. It is crucial that parents trust us [teachers]. [ 74 ] On that specific element, Mr.

Lukawecki pointed out that later, as he was setting up as an extra-curricular activity, a production of “ 101 Dalmatians Kids ” to be performed by the School children; he was quite stunned to receive a letter from Mrs. Bayly authorizing her daughter to participate in the production (P-12). Why would Mrs. Bayly allow her daughter to be in further contact with him under the present circumstances, especially in an extra-curricular activity?

Is he only dangerous for her in his classroom but not outside of it? [ 75 ] Back to the October 24 th Incident, Principal Maravei proposes immediately that a meeting take place with Mrs. Bayly, in her presence. Mr. Lukawecki agrees but it will never materialize as Mrs. Bayly always refused to participate. [ 76 ] Mr. Lukawecki produced several persons who witnessed, in whole or in part, the October 24 th Incident. [ 77 ] Mrs. Melissa Olson is a parent and a lunch hour monitor at Bancroft. [ 78 ] Mrs. Olson is present at the School on October 24 th , 2007.

Her daughter is going to be auditioned for the upcoming Talent Show. She brings her daughter’s lunch upstairs to Mr. Lukawecki’s classroom where her daughter is. At that moment, Mr. Lukawecki is sitting on a stool listening to her daughter who is singing. Mrs. Olson enters the classroom to give her lunch. She stays to watch her daughter perform. [ 79 ] Suddenly, Mrs. Bayly walks in with a camera. She goes to Mr. Lukawecki. Mrs. Olson describes that Mrs. Bayly came nose to nose with the teacher who is sitting on a stool. She does not hear what Mrs. Bayly told him, but she hears Mr.

Lukawecki reply “ Get out of my face ”. Mr. Lukawecki cancels her daughter’s audition without saying anything else. He immediately went out of his classroom to tell the others in the hallway that the auditions were cancelled. [ 80 ] Mrs. Alyssa Kerr was on the School Board. She is present during the lunch period. The auditions started in the gymnasium. Mrs. Kerr is helping with the music throughout the auditions. She sees Mrs. Bayly walk into the gymnasium. Mr. Lukawecki asks her if he can help her. Mrs. Bayly replies that she is there to take photographs of the children. Mr. Lukawecki indicates that she cannot.

Mrs. Bayly is persistent claiming that she is authorized by the Principal. Mr. Lukawecki maintains his position and Mrs. Bayly argues. It got a little more aggressive. Joanne Bayly was yelling and François Lukawecki decided to pack up and go to his classroom with the kids . Mrs. Kerr accompanied Mr. Lukawecki in his classroom. [ 81 ] Upstairs, outside the classroom, Mr. Lukawecki asks the children gathered for their auditions to wait outside until they are called in one by one. Mrs. Kerr walked into the classroom with Mr. Lukawecki and the auditions resumed. All is OK according to Mrs. Kerr.

At a certain moment, Mrs. Carla Battista comes in with a camera in her hand and asks her to take a few pictures while Mrs. Bayly is waiting outside. She will take a few and returns the camera to Mrs. Bayly and re-enters the classroom. Mrs. Kerr recalls that Mrs. Bayly did not like the pictures she had taken for her. [ 82 ] Suddenly, Mrs. Bayly opens the door without knocking and walks in. Mr. Lukawecki is sitting on a small stool. Mrs. Kerr says that Mrs. Bayly got in his face (nose to nose) . Mrs. Bayly starts yelling about the whole picture taking. Mr. Lukawecki replies No I am sorry but I am not allowing it .

She [Bayly] got aggressive then vulgar [asshole, bastard…], very disrespectful and very condescending . She just would not leave . Mr. Lukawecki asks her again to leave his classroom. Mrs. Bayly refuses still angry and yelling. Mr. Lukawecki still does not agree. Mrs. Bayly is very angry and uses vulgar language. The auditions are cancelled by Mr. Lukawecki. [ 83 ] In cross-examination, Mrs. Kerr added that when Mrs. Bayly talked about taking photographs of the children, Mr. Lukawecki told her about the School Photo Policy and that not all parents accepted that their child be photographed. [ 84 ] Mrs.

Bayly responded that she had the authorization from Principal Maravei but never produced anything. Mrs. Bayly was persistent and prevented Mr. Lukawecki from concentrating. Mrs. Kerr concluded her cross-examination with a description of the demeanor of Mr. Lukawecki. He was frustrated, raised his tone a bit (loud but not shout). He was professional at all times . [ 85 ] Mrs. Barbara Hasiotis, a parent with two children at Bancroft, also witnessed part of the incident. She was on duty as lunch monitor in the School lunch room. Mrs. Bayly comes into the lunch room. She is upset and tells Mrs.

Hasiotis that she wants to take pictures of the auditions for the new PPO Newsletter. Mrs. Hasiotis replies that we are not allowed to take pictures of certain kids . She refers to the School Photo Policy. You just can’t take pictures like that . Mrs. Bayly said I don’t have to answer to you, I have permission from Maravei . Since Mrs. Hasiotis is also responsible for security during the lunch hour, she is surprised that she was not advised by the Principal’s office that Mrs. Bayly would come at lunch time to take photographs of the children. Normally, she would have been notified. [ 86 ] Mrs.

Hasiotis decides to go to the Principal’s office where she is told that Mrs. Bayly has to stop because they do not know who can be photographed. Mrs. Hasiotis returns to Mrs. Bayly who replies: If I were another parent, you would not do this . Mrs. Bayly was making faces at Mrs. Hasiotis pointing her finger at her and saying: You’re not my boss . A lot of kids in the hallway looked scared as she was gesturing them to move away. At that time, Mr. Lukawecki was not there. He did not see this. [ 87 ] Mrs. Carla Battista, a teacher at Bancroft, is at the time, Staff Assistant to the Principal, Mrs. Maravei.

In her own words, one of her duties is to replace Principal Maravei when needed. [ 88 ] During the lunch hour, she is in a meeting with Principal Maravei and a parent. [ 89 ] They never saw or heard from Mrs. Bayly before Mrs. Hasiotis, the lunch monitor on duty who is also responsible for security during the lunch period, knocks on the door and interrupts their meeting. Mrs. Hasiotis informs them about her encounter with Mrs. Bayly in the lunchroom and the picture taking issue. Mrs. Maravei sends Mrs. Battista to see what this is all about. Obviously,

contrary to her previous allegations, Mrs. Bayly had never met with Mrs. Maravei until then and the latter was clearly unaware that Mrs. Bayly was coming to photograph the children on that day. [ 90 ] In the hallway outside Mr. Lukawecki’s classroom, Mrs. Battista sees Mrs. Bayly taking photographs of children waiting to go in. She complains to Mrs. Battista about an argument she just had with Mr. Lukawecki who was rude to her and prevented her from taking pictures of the children during the auditions. Mrs. Battista takes the camera from Mrs. Bayly and enters alone in the classroom where Mr. Lukawecki is.

She gives the camera to a parent who was helping with the auditions, asking her to take a few pictures of the child if she can ascertain that the parents have agreed to it and then she should return the camera to Mrs. Bayly in the hallway. [ 91 ] Mrs. Battista returns to her meeting and is no longer involved with that incident on that day. Mrs. Bayly did not go to the Principal’s office at any point. [ 92 ] A couple days later, she crossed Mr. Lukawecki who broke down in front of her. He was in tears and very upset about the October 24 th Incident. He felt intimidated by Mrs. Bayly.

He was not the “Happy Go lucky” guy that she always knew. [ 93 ] In cross-examination, Mrs. Battista confirms that she did not witness any of the altercations between Mrs. Bayly and Mr. Lukawecki but adds that she was not aware that Mrs. Bayly’s photo taking session had been authorized by anyone. She did not authorize it and at her meeting with Mrs. Maravei, the latter never told her that she had authorized Mrs. Bayly to take photographs of the children nor she never reacted as if permission had been granted beforehand. Mrs.

Battista points out: You just could not come in the school to take pictures of the children . [ 94 ] With the benefit of all these testimonies, although certain facts do not coincide perfectly, the Court can nevertheless conclude that the preponderant facts of this case favour Mr. Lukawecki’s version of the incident in question. [ 95 ] Based on the foregoing, the Court does not believe that Mrs. Bayly had the authorization of Principal Maravei to proceed with the photo-shoot.

It is odd, if not revealing, that with the important mass of emails produced on each side at the hearing, that the email allegedly sent from Mrs. Wright to Mrs. Bayly on the morning of October 24 th , 2007, in which Mrs. Wright was asking Mrs. Bayly to take her place and allegedly confirming Mrs. Maravei’s authorization, was never produced. Contrary to her written allegation in paragraph 74 of her defence, Mrs. Bayly did not check in at the Principal’s office upon arriving at the School. Clearly, Mrs. Maravei and Mrs. Battista did not know before the incident that Mrs.

Bayly was present for the purpose of taking photographs of the children who were auditioning before Mr. Lukawecki. [ 96 ] With all due respect, the Court does not believe that the events that really occurred in the gymnasium and later on, in Mr. Lukawecki’s classroom are even remotely close to those alleged in the written proceedings and to those who formed part of Mrs. Bayly’s testimony. Mr. Lukawecki may have been upset by Mrs. Bayly’s presence and may have raised his voice at times, but, he did not refer to the September 21 st Email nor to the Candy and the Air Miles Incidents.

He based his refusal on and explained his position with the School Photo Policy. Moreover, it made perfect sense for him to expect that the Principal would have notified him prior to the auditions of Mrs. Bayly’s upcoming visit and of the purpose of her visit. He was not notified because no one at the Principal’s office knew about it. [ 97 ] Therefore, the Court can only conclude that, in all probabilities, several of the allegations made by Mrs. Bayly in her Emails about the October 24 th Incident and Mr. Lukawecki’s behaviour were essentially false and groundless. [ 98 ] But, what do these Emails say?

The chain of Emails after the October 24 th Incident [ 99 ] The October 24 th Email, the first one in the chain was written and sent by Mrs. Bayly one hour only after the incident. [ 100 ] What was her frame of mind then? [ 101 ] Paragraphs 80 to 82 of her written defense may shed some light. 80. Despite the earlier candy incident, Defendant/Plaintiff in Warranty was taken aback by Plaintiff’s aggressive and vitriolic behaviour and point blank refusal to accommodate the PPO’s need for pictures for its newsletter.

Defendant/Plaintiff in Warranty returned directly to the Principal’s office, where the Principal intervened by writing a directive note to Plaintiff, directing him to allow Defendant/Plaintiff in Warranty to take pictures; 81. In all, Defendant/Plaintiff in Warranty spent at least an hour, humiliated and distressed, as various teachers attempted to negotiate with Plaintiff to allow her entrance to the classroom where Plaintiff had moved the students for auditions, to take a few photographs. A junior teacher then intervened, offering to take the photographs on her behalf; 82.

When she returned home in great distress, Defendant/Plaintiff in Warranty recounted to her husband how once again Plaintiff had behaved with great insolence and arrogance to a parent; and how he once again had tried to obstruct any activity by the PPO. [ 102 ] We now know that Mrs. Bayly did not go to the Principal’s office or that no “directive note” was written by Principal Maravei to Mr. Lukawecki. But, besides the alleged behaviour of Mr. Lukawecki, emphasis is rather placed on the activities of the PPO that were obstructed by the latter.

The Court will deal with this issue later. [ 103 ] It is now important to review the Emails that are the basis of Mr. Lukawecki’s claim. Do they contain defamatory statements made by Mrs. Bayly?

[ 104 ] To assist the reader to better understand the various persons involved, a list of the names and positions of the persons involved at one point or another, prepared by Mrs. Bayly is attached to the present judgment to form integral part hereof as

Schedule A. [ 105 ] On October 24 th at 1:42 PM, a little more than an hour after the incident, Mrs. Bayly sends the first of the Emails to Principal Maravei and with a copy to 19 other recipients (P-1). Mrs. Bayly claims that she decided to send copies of the email to members of the PPO, as she had been sent on a PPO task, ( they had a right to know ) and to some members of the Board and the EMSB: From: Joanne Bayly [mailto:[…]] Sent: October 24, 2007 1:42 PM To: Maravei, Artemis Cc: […] [ 106 ] The Court notes that Mrs. Bayly also chose to notify Principal Maravei’s superior right away by sending a copy to Mrs.

Angeline Roumeliotis, Regional Director of the English Montreal School Board (“ EMSB ”) responsible for Bancroft. Mrs. Bayly will testify that she had to do so because she did not trust Mrs. Maravei who was against her husband, Mr. Julien Feldman, in his election for the position of school commissioner. [ 107 ] The following is the October 24 th Email written by Mrs. Bayly that will prompt what was described by witnesses as a firestorm of emails: Dear Ms. Maravei, I am writing to ask you to demand that your teacher, Francois Lukawecki, write an apology to me for his outrageous behaviour to me this afternoon.

I had your permission to take photographs of the talent show auditions for the PPO newsletter . But, when I arrived at the gym, Mr. Lukawecki forced me outside and told me that, unless I left, there would be no audition. When I asked him why he was being so unreasonable, he told me, "I don't like you." When I asked why, he said, "You are an awful person who wrote a disgusting memo about me." He had no complaints about the photo-taking itself; just about me, personally. And about that so-called memo: you will remember, Ms.

Maravei, you agreed with me when I wrote a letter asking him to stop giving the children candy in class. In fact, you even went on to make it a school policy. Anyway, I told him he was being petty and that I was ju st trying to take a few photos for our new newsletter. At that point, with the help of a couple of sympathetic teachers, I was able to call you o ut of your meeting where you agreed to write a note to him, asking him to let me in . Of course, that was not enough. He continued to call me names, in front of the students .

At one point, one of the children waiting to audition turned to me and said, "I'm sorry Mr. Francois is being so mean to you." The whole episode was humiliating. At that point, when I realized the situation was harmful to the students, I withdrew and asked a teacher to take some photographs for me. I am a member of the PPO and a member of the newsletter staff. Whether Mr. Lukawecki likes me or not is irrelevant; it is his job to work with me.

I cannot believe that someone who could treat parents and the PPO with such disrespect has the confidence of his fellow teachers as their representative on the governing board. And I cannot believe he has your confidence, either . We all know that a teacher is in a position of power, and it is his or her job to act professionally at all times — especially in front of students. How can students learn to behave, when they see his incivility ? And, just on a personal note, I am very worried about my daughter, Katy . If Mr. Lukawecki cannot act in a professional manner with me, how is he treating her?

Are his prejudices making him just as despicable to her? Maybe he's making a snide comment here and there; maybe he's reprimanding her more than he is the other children: this kind of nastiness is insidious. And would my daughter even tell me? She has been taught to respect her teachers. I want a written apology from Mr. Lukawecki . I also want a promise, from him, that his behaviour towards my daughter will be civil and professional at all times . And I want this note and my previous note about him placed in his permanent file, so any future employers will see his unsuitability for teaching .

Yours truly, Joanne Bayly [Emphasis added] [ 108 ] On October 25 th , Mrs. Maravei acknowledges receipt as follows (P-2): Maravei, Artemis" <[…]> 10/25/07 2:54 PM

Dear Joanne, I am available to meet with you regarding the incident that occurred yesterday. Please let me know when you can come by the school. Arty Arty Maravei Principal Bancroft School [ 109 ] Mrs. Maravei restricted her email to Mrs. Bayly only. [ 110 ] Some thirty-three minutes later, Mrs. Bayly responds to Mrs. Maravei with a second email (the “ October 25 th Email ”) (P-2). Mrs. Bayly chooses to send a copy of this email to six other addressees including Mrs. Roumeliotis, but she also adds Mr.

Mario Tirelli, another Regional Director of the EMSB: From: Joanne Bayly [mailto:[…]] Sent: Thursday, October 25, 2007 3:27 PM To: […] Cc: […] Subject: RE: Mr. Francois Lukawecki Dear Ms. Maravei, I do not want to go back to the school — not after my humiliation yesterday. And I do not want to go back until you have cleared this matter up . As I wrote yesterday, I want an apology . We can start this way: I will attend the next governing board meeting where Mr. Lukawecki can hand me an apology in writing in front of all the board members, including the parent representatives .

I also believe his poor conduct merits concrete action on your part . Surely, you cannot condone a teacher's treating a parent in this reprehensible way . I am sure you have avenues available to reprimand him . For some reason, Mr. Lukawecki has been given to understand he can act with impunity . I also believe you should send a clear message to the other teachers that parents are welcome at the school that the PPO is a vital part of school life; and that personal vendettas are not acceptable. I would also like you to come up with some kind of protection for my daughter .

I have been sick to my stomach all day thinking of her alone in the school, with the possibility of his venting the same kind of spleen on her . I need a guarantee that someone will be protecting her . And how exactly is my little girl going to feel today? Everyone knows that a teacher treated Katy's mom like dirt yesterday. The whole school is probably agog with it today. How is she supposed to deal with this? Is she going to get an explanation from you? This is an important matter. And I expect you will want to deal with it in a timely manner. Joanne Bayly [Emphasis added] [ 111 ] Mrs. Maravei responds to Mrs.

Bayly a few minutes later, without copying others (D-39): "Maravei, Artemis" < […]> 10/25/073:49 pm »> Dear Joanne, I wanted to meet with you because I heard your side but I also had to spend time today to hear Mr. Francois' side . That is why we need to meet to talk about it . There is some miscommunication which needs to be cleared up. I hope you will be able to come to the school. As for Katy, she is safe . Rest assured, that we are professionals and no one is going to take anything out on Katy . As for talking about this incident, I have not heard anyone talking about it in my presence.

Please, let us get together. If you do not want to come to the school, we can meet somewhere else.

Let me know. Arty Maravei Principal Bancroft School [Emphasis added] [ 112 ] The following day on Friday, October 26 th , early in the morning, Mrs. Bayly writes three emails addressed to: - Mrs. Araujo, the parent who replaced Mrs. Bayly’s husband as chairperson of the Governing Board, entitled “ Your help in a serious matter ”, privately at 4:12 AM; - Principal Maravei with copy to seven addressees including Mrs. Roumeliotis and Mr. Tirelli, Regional Directors of the EMSB, entitled: “ My complaint ” at 5:06 AM; and to - Mrs. Roumeliotis with a copy to Mr.

Tirelli, Regional Directors of the EMSB, at 9:37 AM, entitled “ Bancroft school and f. Lukawecki ”. [ 113 ] Each email will trigger further email exchanges. The Araujo email chain [ 114 ] At 4:12 AM, Mrs. Bayly writes her first email of the day privately to Mrs. Maria Araujo, the parent who replaced Mrs. Bayly’s husband as chairperson of the Board.

The email (P-8) is entitled “ Your help in a serious matter ” and reads as follows: From: Joanne Bayly [mailto:[…]] Sent: October-26-07 4:12 AM To: […] Subject: your help in a serious matter Dear Maria, I hope you have read the emails I have cc'd you about the situation with Mr . François. I really hope that, as the head parent on the governing board, you will intervene in this matter. It was a completely unprovoked attack on a parent by a teacher who is clearly out of control . This is not the first time Mr. Francois has acted in an inappropriate way to a parent.

And I do not think the governing board can allow this to continue. I also think you have to consider the whole PPO issue . I was at the school taking photos for the newsletter. Do we want the PPO to be a viable, respected body, or are we going to let one bad teacher ruin everything? I have no history with Mr. Francois. All I ever did was write a note to Ms. Maravei asking her to tell him not to give the grade-two children candy. I would appreciate if you could help me in this matter. I would also like to talk to you about it. You can call me at […] (work) or […] (home).

I work early in the morning and I am home by noon. Thank you, Maria. Joanne Bayly [Emphasis added] [ 115 ] Mrs. Araujo will sort of respond to Mrs. Bayly’s email at 11:09 PM on October 31 st (D-39) but will only send it to Mrs. Christina Atkinson, another parent, also member of the Board with copies to parents Mrs. Herrmann and Mrs. Wright. It reads as follows: From: […] [mailto: […]] Sent: Wednesday, October 31, 2007 11:09 PM . To: Christina Atkinson Cc: lise herrmann; fund raising chair; Wright, Lynne Subject: Re: RE: joanne Hello Christina and Lise,

Okay so I'm finally going to put something in an e-mail. I've been avoiding the e-mail fracas because I do not like the way this whole thing has evolved. I always prefer to say whatever I have to say in person. Besides, as far as I'm concerned this "firestorm" really didn't need more fuel. I also do not want whatever I say magically reworked or reused for the benefit of one party or another. Unfortunately, Lise, you are finding out how hard it is to be stuck in this kind of situation. It seems to me you have been working very hard, bandied about trying to smooth ruffled feathers that refuse to be smoothed.

I agree one hundred percent with you, Christina. This is a situation that has to be sorted out between the teacher and Joanne with Arty mediating. Arty is excellent at this. In the 9 years that I know Arty, I have personally seen her resolve many such incidents. Of course, it helps if both parties are ready and willing to come together to work it out. Last week, Joanne wrote me to ask for my help. I called her to and told her that I would do what I normally do with my three kids. When there is a conflict, I don't automatically excuse the one who is screaming the loudest and punish the one who hangs back.

I told her, I try to get all the facts on the situation before I pronounce any judgements, start handing out punishments and/or demand that only one kid apologize to the other. Everyone needs to feel like they've been heard and understood .... even the guilty party. It's only fair. I also asked Joanne to please stop the e-mail campaign for the time being. Joanne told me that was fine. When I conducted my own informal investigation; I spoke to Arty, spoke to Joanne, spoke to kids who were there, spoke to other teachers and adults who witnessed the event ........ Dare I say it!!

My conclusion is that Joanne gave as good as she got! (Some children told me they were afraid for M. François because they know he's dramatic, but they had no idea who this very angry woman was yelling at him or why.) Are all these people fabricating the same story? Hmmmm. Now that does NOT excuse Mr. François' behaviour, and I'm sure Joanne was extremely embarrassed. B ut Joanne has to own up to her

part in this. I think they both showed bad judgement in getting into an argument in front of the kids. That's a big NO-NO in my books. Someone should have backed down. All this about some pictures???? Unfortunately, when I called Joanne to discuss the situation again, the only thing I had a chance to say was, "Hi Joanne. How are you today? (She said, "fine".) Listen Joanne, I really hope you will reconsider this situation.

I think it would be wise to go to the school and get this sorted out a.s.a.p. with François and Arty." Her very curt response to me was, "I will only meet with them at the School Commission with Angie Roumeliotis and with people who support me. I'm sorry Maria, I cannot talk right now I have to read the news." Click. That was Monday morning. I have not heard back from Joanne again. I doubt I ever will. So much for wanting my help! She no doubt feels that I will not "support" her in the way she requires me to.

I did, however get a very indignant e-mail from Julien later that day (after you, Lise had a meeting with Arty), demanding that I step in to do something about this situation as Gov. Brd. Chair once and for all. He also went on about other supposed humiliations that Joanne continues to suffer, this time generated by Arty, the establishment and so on and so on. I have a good relationship with Julien, but I will not respond to his "request" or his accusations. I saw Julien this morning campaigning in front of Bancroft. We exchanged some friendly chitchat. He didn't bring anything up and neither did I .

I understand that Joanne is your friend Lise. I understand you feel it is important to support her, however you have to respect that not everyone will feel the same way for whatever reason. I will personally come to the aid of anyone when I feel it is necessary and when I feel it will make a difference. Quite honestly, I feel I've already done my part here. So I'll be patient and hope for the best for everyone involved in this mess. I feel very strongly that this situation has absolutely nothing to do with the Governing Board or the PPO.

It has nothing to do with our mandate to help guide the policies and direction we deem appropriate for a quality education for the children in the school. This is what I want to concentrate my energies on! Like Christina, I would very much like to see some action on the fundraising front. It seems to me there are a lot of meetings to plan for fundraising, but nothing concrete yet! Tomorrow is November 1 st . Yikes! We need to encourage someone to take the bull by the horns! We need to set dates for actual fundraising events not more meetings.

Some more little ideas because every little bit counts: -Chris Hausler was suggesting we have a pre-Christmas bazaar. Kids could make stuff or people could donate things to be sold. -We have to take advantage of when parents will be in the school to hit them up for some coin - Parent/Teacher interviews are coming up - Bake sale ....... X-mas cards sale ...... Thanks for letting me take up some of your time with this missive. I apologize for how long it is. Most Sincerely, Maria [ 116 ] Mrs. Araujo’s email must have been forwarded to Mrs.

Bayly who responds as follows on November 2 nd (P-9), with copies sent to the five persons mentioned below: ——-Original Message——- From: Joanne Bayly [mailto:[…]]

Sent: Friday, November 02, 20072:37 PM To: […] Cc: […] Subject: my complaint Dear Maria, First of all, I would like to say I am not satisfied with how you have dealt with my complaint about Mr. Francois. And I do not like what you appear to be saying about me in public . When you called me at work earlier this week to discuss it, it was five minutes to eleven. I have a live newscast at eleven. You asked me, quickly, if I would meet with Ms. Maravei. I quickly said, actually, Maria, I am meeting with her. At the school board. That is all I said. I did not talk about who would be there or why.

I simply did not have time. And to suggest I hung up on you is a really astonishing bit of mis-reporting. I , of course, said, good-bye. Why wouldn't I? ( By the way, I have never agreed to meet with Mr. François . And no one has suggested it. That is absurd . That is like asking a rape victim to meet with her attacker .) Quite seriously, Maria, I do still want and expect your help. But I am worried that you are letting your personal feelings for Ms. Maravei get in the way of fairness. They are certainly getting in the way of how you are representing my side of this story.

As the leading parent representative on the governing board, you should take every complaint by every parent seriously. But I did not ask you to lead an investigation . (What makes you qualified to do that?) And I take exception to your telling people that I "gave as good as I got." This is not a trial, and you are not the judge. And an "informal" investigation, led by a biased person, is no investigation at all. This is exactly why I have asked for a meeting at the school board. Ms. Maravei has a great deal of influence at the school — one could say "unfair" influence.

And she is quite adept at getting people like you to see things her way. She has had almost 30 years’ experience at sweeping unpleasant incidents under the carpet. The reason I am pursuing this is because I do not believe any parent should go through what I went through. There has to be a due process not a meeting in Artie's office to hush up complaints about one of her favourite teachers. That is why we are meeting at the school board, with other people present. I am simply demanding a fair process. And as the chair of the governing board, you should be supporting me in getting that process.

You have the right to your own personal opinion. But, as chair, you have a very important duty to make sure any complaining parent is treated with respect. May I also point out, Maria, that, until our ten-minute phone call last week, I had never spoken to you. I do not know you. And you do not know me. So please try to be more neutral in your treatment of me, without what appear (sic) to be quite unseemly preconceptions . And, please, if you write any more comments about me, have the decency to cc me the email .

Yours sincerely, Joanne Bayly Joanne Bayly Line-up Editor / Journalist CBC Radio News Montreal [Emphasis added] The Maravei email chain [ 117 ] At 5:06 AM, Mrs. Bayly writes a second email to Principal Maravei (P-3) with copies to seven other recipients including Mrs. Roumeliotis and Mr. Tirelli, Regional Directors of the EMSB, entitled: “ My complaint ”: From: Joanne Bayly [mailto: […]] Sent: Friday, October 26, 2007 5:06 AM To: Artemis Maravei Cc: […] Subject: re: your note re: my complaint

Dear Ms. Maravei, Quite frankly, I am shocked by your response so far to my complaint. For you to characterize a huge, ugly incident, witnessed by dozens of students and staff , as a "miscommunication" is unbelievable . What about your note to Mr. Lukawecki at the time, ordering him to let me take photos? Was that a "miscommunication" too? And I cannot "rest assured." I am not at all reassured by your promise that your staff is professional . Did you even read my two emails? Clearly, one of your staff members is not acting in a "professional" manner. I have been a professional journalist for 25 years .

I have worked with and interviewed many difficult people. And I am willing now , as a member of the PPO and the newsletter, to work with Mr. Lukawecki in future, despite his clear unsuitability as a teacher and a governing board member . But we cannot move forward until he has apologized for his outrageous behaviour . And we cannot move forward until you have acknowledged that parents cannot be treated in this manner. You are the leader at the school, and it is for you to set an example. And, most importantly, I still insist on some kind of plan to protect my daughter from him .

If he can act so inappropriately with me — a parent with absolutely no history of conflict with him — what could he do to my daughter? I would suggest appointing some of the teachers and staff as my daughter's protectors — to watch over her to make sure she is not accosted in any way by this person . I am still waiting for a full and appropriate response from you. Joanne Bayly [Emphasis added] [ 118 ] One of Mrs. Bayly’s addressees, Mrs. Lise Herrmann, interjects into the exchange (the “ Hermann email ”) (D-39). It is not known who, other than Mrs. Maravei and Mrs.

Bayly, received this particular email: On Fri, 26 Oct 2007 09:47:50 -0400, "lise herrmann" […] said: Ms. Maravei, As Co-Chair of the PPO, I wish to express my concern for the ill treatment of Joanne Bayly by one of your staff members, Mr. Lukawecki. It has been brought to our attention that when Joanne attempted to take photographs of the talent show auditions for the PPO newsletter, she was accosted, personally insulted and then ordered to leave the room by Mr. Lukawecki.

It is worrisome to learn that when a parent becomes involved with the school and the PPO, there runs the risk of such a volatile interaction with the staff at Bancroft. In order to have a thriving and healthy school environment for our children, it is important to foster parental involvement, and to encourage respect and consideration between teachers, parents and students alike. We strongly urge you to take whatever means you deem necessary to ensure that Ms.

Bayly receives the apology she deserves, and to guarantee that in the future, all other parents and children are safe from any disrespect by your staff members. Thank you for your time and effort, Lise Herrmann, PPO Co-Chair [ 119 ] Mrs. Herrmann will testify that she did not witness personally the October 24 th Incident and that she relied on Mrs. Bayly’s version of the facts to write this email. A few days later, on October 30 th , Mrs. Herrmann sends another email to Mrs. Maravei (P-14) in which she reacts to an email sent by Mrs. Bayly’s husband on October 30 th to Mr.

Antonio Lacroce, a Regional Director of the EMSB (D-30). In her new email, Mrs. Herrmann somewhat changes position and essentially attempts to distance herself from Mrs. Bayly. In his email to Regional Director Lacroce, Mrs. Bayly’s husband complained about Principal Maravei’s conduct following the October 24 th Incident as follows: From: EMSB Elections - Press Release <[…] > Date : Tue, Oct 30 , 2007 at 1 : 44 PM Subject: Arty / Bancroft To: "Lacroce , Tony" […] bcc : "Joseph N. Petraglia" […] Rocco Barbieri […] , Liz Leaman […] date : Tue , Oct 30, 2007 at 1 :44 PM subject Arty / Bancroft

Mr . LaCroce, I would appreciate it if you had anoth

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