Paderewski Society Home (Niagara) v. Skorski, 2022 ONSC 1550
CITATION: Paderewski Society Home (Niagara) v. Skorski, 2022 ONSC 1550
DIVISIONAL COURT FILE NO.: DC-19-00000044-00ML
DATE: 20220315
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Stewart and King J.J.
BETWEEN:
PADEREWSKI SOCIETY HOME (NIAGARA) Plaintiff (Respondent)
– and –
LEOPOLD SKORSKI, ALEXANDER DAVIDOFF and ALEXANDRA DAVIDOFF Defendants (Appellant)
David Marshall, for the Plaintiff (Respondent)
Alexander Davidoff, in person
HEARD at Hamilton (by videoconference): February 4, 2022
Dambrot J.:
[1] The appellant Alexander Davidoff appeals from the judgment of Henderson J., in 2017 ONSC 6594, awarding damages for defamation to the respondent Paderewski Society Home (Niagara) (the “Paderewski Home” or the “Home”) in the amount of $10,000 payable jointly and severally against him and his co-defendant Leopold Skorski. The claim against Alexandra Davidoff, the appellant’s daughter, was dismissed at the conclusion of the respondent’s case.
The Evidence
[2] The respondent is a non-profit corporation that owns and operates a 70-unit seniors’ residence in St. Catharines, Ontario. The Home’s operating budget is funded by Niagara Regional Housing (“NRH”).
[3] The appellant is a self-described journalist who owns and operates a website, which he also refers to as a blog, known as “Mayorgate.” On January 15, 2014, he published an article about the Paderewski Home (the “Mayorgate article”). The respondent claimed that statements in the article about financial irregularities, potential fraud, and abuse and intimidation of elders were defamatory, and that both the respondent and Skorski were responsible for those statements.
[4] Skorski was the founder of the Home and served as its president for 16 years until July 1, 2007. He then remained on the Board of Directors (“the “Board”) as a past President until July 1, 2008.
[5] Skorski hired Stella Fensom as the manager and bookkeeper for the Paderewski Home in 2006. She worked as a part-time paid employee. She rented out units, collected the rent, and managed the day-to-day operations of the Home. Fensom reported to the Board and prepared monthly financial statements for review and approval by the Board.
[6] In 2007, Skorski became a tenant at the Home. The Respondent’s bylaws provide that tenants are not eligible to sit on the Board or to vote in elections to the Board. However, because Skorski had been heavily involved with tenant issues, after receiving a petition from fellow tenants, the Board appointed Skorski as the tenants’ “Guardian Angel” in September 2008. Thereafter, Skorski continued to attend at and participate in Board meetings until his status was revoked by the Board in October 2009.
[7] The trial judge found that the troubled relationship between Skorski and the Board was at the heart of this litigation. After Skorski retired as president, he remained very interested in the operation of the Paderewski Home. He regularly asked Fensom questions about the monthly financial statements, tenant concerns, and the operation of the Paderewski Home, and often felt that the answers that he received from her were inadequate. As a result, Skorski regularly took his questions to Board meetings and tenant meetings, where he aggressively questioned the manner in which the Board operated. His questions suggested that the Board was not doing its job properly. The Board had little patience for Skorski and often refused to answer or avoided his questions.
[8] As will be seen, when Skorski did not feel that he received adequate answers to his concerns, he took his questions and concerns to others outside the respondent, including the NRH, the Niagara Regional Police Service (“NRPS”), regional councillors and other local politicians.
Skorski’s complaints
[9] Skorski made multiple complaints about the Board and Fensom that evolved over time.
[10] The first strong criticism from Skorski began in 2009 when he became concerned about missing cheques, irregular Christmas bonuses, and the installation of flooring and carpeting. He raised these concerns with the respondent’s accountants, and then in September 2009, he raised these concerns at a Board meeting. Despite Skorski's concerns, the Board approved the financial reports that dealt with these items.
[11] Unsatisfied, Skorski took these same concerns to NRH. In response, NRH conducted an audit of the Home’s operation as it related to these issues. On December 3, 2009, NRH released the results of its audit. In summary, NRH confirmed that there had been an irregularity regarding two cheques, and that the irregularity had been corrected. NRH found that Skorski’s other concerns were unsubstantiated.
[12] In 2010, Skorski raised concerns about the Board terminating the popular weekly home-cooked lunches for the tenants, shutting off the outside water taps at the home in the evening causing difficulties for tenant gardeners, and holding a Christmas party at the Legion Hall rather than the Paderewski Home.
[13] In early 2011, Skorski brought these concerns to the attention of the Board, NRH, and a regional councillor. In April 2011, at the councillor’s request, NRH met with Board members to discuss these items. By the end of the meeting, NRH and the councillor concluded that there had been no improprieties by the Board.
[14] In May 2011, an incident arose involving a tenant named Janusz Zelichowski and Tony Sotola, the vice president of the Board. The tenant alleged that Sotola had entered his unit to fix a toilet but had left a mess, that an argument ensued and that Sotola yelled and cursed at him in Polish. The tenant sent a letter of complaint to the Board and to NRH, and enlisted Skorski’s assistance regarding alleged tenant abuse.
[15] By 2011, Skorski formed an unofficial tenants’ committee that consisted of himself and four other tenants. The committee generated at least three letters of complaint about conditions at the Home, as follows.
[16] On July 25, 2011, the committee sent a letter to NRH signed by “concerned tenants”, including Skorski. The letter listed tenant complaints about the Home, including the termination of the home-cooked lunches, the outside water shut-off, the verbal abuse of the tenant described above, and the 2010 Christmas party.
[17] A similar letter, entitled “Few Examples of Abuse and Neglect” was subsequently sent to the mayor and an administrator with NRH. This letter was signed by seven tenants, including Skorski. It added a complaint that apartments had been entered, and tenants’ mailboxes had been opened.
[18] In early 2012, Skorski sent an undated and unsigned letter to the mayor and the same administrator with NRH. In the letter, Skorski complained of “the brutal behaviour by the 1st Vice President, Mr. A. Sotola”, and about “our abuse and neglect by the manager, Mrs. Stella Fensom and her organized clique within the Board of Directors.” Skorski further stated in this letter that, “We have a genuine complaint and proof of the Gestapo style of treating helpless seniors” and asked the mayor and the administrator to “remove this woman and her clique from our life.” The trial judge referred to this letter in his reasons as “the Gestapo letter”.
[19] On September 5, 2012, five tenants, including Skorski, signed a letter to NRH that expressed concern that the situation at the Home was getting worse. That letter listed complaints of tenants’ apartments being entered, and tenants’ mailboxes being opened, and a complaint that Fensom had publicly screamed at a tenant.
[20] Also in 2011 and 2012, Skorski questioned the Board’s financial dealings with two contractors who were hired by the Board for relatively small jobs without obtaining three quotes or public tender as required by the by-laws. Skorski brought these concerns to the Board and then to NRH, and on July 27, 2013, Skorski’s lawyer wrote to the NRPS about them. By letter dated December 18, 2013, NRH wrote that it had investigated, and had found that there were no irregularities regarding these two issues.
[21] Skorski’s final significant concern was an allegation that the Board conducted an unlawful election of Board members at its Annual General Meeting (“AGM”) on July 24, 2013. Skorski contended that the president of the Board improperly excluded 20 people of Polish ancestry whom he had recruited. These attendees were intending to run for office and/or vote in the election of Board members.
[22] Skorski took his complaints regarding tenant abuse, financial irregularities, and the alleged irregular AGM to a regional councillor, who introduced Skorski to the appellant. The appellant interviewed Skorski on three or four occasions about the issues at the Paderewski Home in the fall of 2013, made a video recording of his interview with Skorski in November 2013, and on January 15, 2014, the appellant published the Mayorgate article. The article included statements that there had been financial irregularities at the Paderewski Home, that there were issues of potential fraud, and that the tenants of the Home had been abused and intimidated.
[23] The appellant received most of the information contained in the article from Skorski and from copies of correspondence and documentation from Skorski and his lawyer. Skorski testified that he did not read the appellant’s article before it was published, but he conceded that he provided the appellant with the information that is contained in the Mayorgate article and that he agrees with its content.
The Mayorgate Article
[24] The Mayorgate article is entitled, “Seniors Languish in Intimidation.” It includes approximately 19 pages of text, pictures of the Paderewski Home and Skorski, a video link to Davidoff's recorded interview of Skorski, and copies of pieces of correspondence, including Skorski’s 2012 letter claiming to have proof of the respondent’s Gestapo style of treating helpless seniors.
[25] The following are a few excerpts from the article, relating only to the allegations of elder abuse:
• It took tenacity and perseverance to build the Paderewski Society Home, something Leo Skorski is not short of to this very day. Yet Leo's goal to provide dignity and peace to its residents has been hit with a nightmare. Instead of dignity fear has invaded the walls of the Paderewski, its residents exposed to intimidation and abuse. Within this intolerable climate of personal abuse of the residents, serious questions of possible misappropriation of monies has [sic] arisen.
• This was only the beginning in a situation that has taken life at a seniors centre from a peaceful existence to a nightmare of abuse and intimidation. ... These people survived the Nazi occupation, labour camps and the terror of war. Together they journeyed to a land where a simple reward was offered for their willingness to help build a nation, that reward was a life with dignity and peace. That no longer exists for them at the Paderewski Society Home.
• Abuse reached a new level when a resident well past his eighties was verbally assaulted by the Vice President at the centre. Leo Skorski took a copy of a letter by [Z.], the elderly resident who was abused, to Mayor Brian McMullan on December 12th, 2011.
• Abuse of the residents at the Paderewski Society Home has not subsided to this day. Residents live under a climate of threat of eviction if they complain about anything, only Leo Skorski stands strong enough to continue his fight and search for the truth...
The Findings of the Trial Judge
[26] In his reasons, the trial judge recognized that in order to succeed in this defamation action, the respondent had to prove that the impugned words were published, that they referred to the plaintiff, and that the words were defamatory. To be defamatory, they had to be reasonably capable of a meaning that could injure the respondent’s reputation, in the sense that they would tend to lower the respondent’s reputation in the eyes of a reasonable person. If the respondent was able to prove these three elements, then the onus shifted to the defendants to prove on a balance of probabilities the existence of a defence.
[27] In this case, there was no dispute that the words were published and that the words referred to the respondent. After hearing the evidence, the trial judge went on to find that the words were defamatory. The onus then shifted to the defendants to prove that there is a valid defence. In the pleadings, the defendants raised the defences of justification and fair comment. However, in oral submissions, both defendants referenced passages from the decision of the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, that relate to the new defence of responsible communication about matters of public interest. Although this defence was not raised in the pleadings, the trial judge considered it as well.
[28] After reviewing the law with respect to these defences, the trial judge proceeded to make the findings of fact necessary for his consideration of the available defences. He did so with respect to all the disparaging statements made by the appellant. In the end, he concluded that the respondent was entitled to damages for defamatory statements about tenant abuse and neglect but was not entitled to damages for any other disparaging statements made by the defendants. As a result, I will discuss his findings with respect to tenant abuse and neglect in some detail, and his findings with respect to the other allegations only briefly.
Financial Irregularities – Justification
[29] The trial judge found that the defendants had proved on a balance of probabilities that the statements in the Mayorgate article regarding financial irregularities at the Paderewski Home were substantially true, and therefore justified. As a result, the respondent’s claim of defamation with respect to statements made about financial irregularities failed.
Misappropriation of monies and fraud – Justification and Fair Comment
[30] While the trial judge did not find that the defendants had proved actual misappropriation of monies or actual fraud, and therefore the defence of justification was not available, he found that these statements were a matter of public interest, were based on proved facts, and were recognizable as comment. He said that the statements about financial irregularities combined with the suspicious circumstances surrounding the Board’s financial dealings with two contractors referred to above provided a foundation for an honest opinion about the possibility of fraud. As a result, he found that the defence of fair comment succeeded with regard to the statements made by the defendants about possible misappropriation of monies and potential fraud, and the respondent’s claim about misappropriation and fraud failed.
The July 24, 2013, Annual General Meeting - Justification
[31] The trial judge found that the pertinent by-law was ambiguous. Skorski and his group had reason to believe that they were eligible to vote and run in the July 24, 2013, AGM. He made no finding as to whether the results of the 2013 election were valid, but he did find that the decision by the president of the Board to terminate the meeting and prohibit Skorski and his group from participation was an irregularity in the process. It is not clear to me whether the respondent actually alleged that the statements about the AGM were defamatory, but in any event, the trial judge clearly found that they were justified, and the respondent’s claim in respect of the AGM failed.
Findings Regarding Tenant Abuse and Neglect - Justification
[32] The trial judge said that the only tenant of the Home that testified at trial was Skorski, who said that he did not live in fear at the Home and that he had not been the subject of any abuse. Thus, the trial judge continued, any evidence of abuse of tenants by a Board member or by Fensom was hearsay evidence, which he treated with caution. The only significant allegation of tenant abuse was the incident involving Sotola and Zelichowski. Sotola testified at trial. Zelichowski was 95 years old at the time of the incident and was in poor health. He died before trial. As a result, the trial judge admitted his letter into evidence.
[33] In his letter, the tenant wrote that Sotola stormed into his apartment to find the source of a water leak. Instead of repairing the leak, he left his tools and a mess making it very difficult for the tenant to use the washroom. The tenant wrote that the next day, Sotola showed up again at his unit, went into a rage, and began cursing at him in Polish.
[34] Sotola testified that when he was investigating a complaint that water was leaking into another tenant’s apartment, he discovered that that the water was coming from Zelichowski’s unit upstairs. When Sotola was admitted into Zelichowski’s unit, he saw that water was leaking from the toilet. He turned the water off and installed a valve on the toilet, but it was the wrong size. He left the valve in place overnight so that the toilet was functional and returned the next day with the proper valve. While Sotola was repairing the valve, Zelichowski became angry and struck him in the shoulder with his cane, swore at him and told him to get out of his apartment. Sotola said that he became upset and swore at Zelichowski. He completed the job and left.
[35] The trial judge found that a verbal altercation occurred between Sotola and Zelichowski, but that Sotola did not do anything wrong to start the confrontation. He found that Sotola must have done something inadvertently that agitated Zelichowski, and that Zelichowski inappropriately responded by striking Sotola with his cane. Sotola then yelled and swore at Zelichowski. The trial judge concluded that while Sotola’s action was not egregious, it was unreasonable for a person in his position. It showed a lack of insight and compassion.
[36] Beyond that incident, the trial judge said that there was no reliable evidence of yelling at tenants.
[37] As to other allegations of tenant abuse or neglect, the trial judge said that he heard evidence of several other complaints by tenants that in his view were either insignificant or easily explained. He did not consider the termination of home-cooked meals or the outdoor water shut-off to be tenant abuse or neglect. The termination of home-cooked meals was as a result of a breach of health regulations after an inspection. The water shut-off was a limitation on the hours at which water was available for outside use, and this was a step taken by the Board to reduce its water bill. He further stated that there was no evidence that the manager or anyone from the Board entered tenants’ apartments from time to time without notice or that the manager opened tenants’ mailboxes.
[38] In the end, the trial judge found that there was no pattern of tenant abuse or neglect. The only incident of any unreasonable conduct was Sotola’s overreaction to an altercation started by a tenant. This was an isolated incident and its overall effect on the conditions at the Paderewski Home was minimal. He noted that the onus was on the defendants to prove that their statements about tenant abuse and neglect were substantially true, and they failed to do so. As a result, he concluded that statements in the Mayorgate article such as “Seniors Languish in Intimidation”, “fear has invaded the walls of the Paderewski” and “a nightmare of abuse and intimidation” were not justified. He also found that statements in the Gestapo letter such as “Gestapo style of treating helpless seniors” were not justified.
Findings Regarding Tenant Abuse and Neglect - Fair Comment
[39] The trial judge then considered the defence of fair comment. He stated that the test for the defence of fair comment requires that: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment must be recognizable as comment; (d) the comment must satisfy the objective test that any person could honestly express that opinion on the proved facts; and (e) the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
[40] He concluded that the fair comment defence failed regarding statements made about tenant abuse and neglect in both the Mayorgate article and the Gestapo letter. He said that the defendants had not proved any facts that would permit either of them to express these opinions or comments about tenant abuse or neglect. For example, he said, statements such as “Seniors Languish in Intimidation”, or “fear has invaded the walls of the Paderewski”, or “a nightmare of abuse and intimidation” were all comments or opinions that were not based in fact.
Findings Regarding Tenant Abuse and Neglect - Responsible Communication on a Matter of Public Interest
[41] Finally, the trial judge addressed the defence of responsible communication about matters of public interest despite the fact that it had not been raised in the pleadings. He stated that the defence applies where:
The publication is on a matter of public interest; and
The publisher was diligent in trying to verify the allegation, having regard to:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff's side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement's public interest lay in the fact that was made rather than its truth; and
(h) any other relevant circumstances.
[42] The trial judge found that the defendants had satisfied the first criterion. The treatment of seniors who reside in a publicly funded residence is a matter of public interest. With regard to the second criterion, he found that the subject matter of the Mayorgate article was serious and had public importance, but there was no urgency to publish the article, and the defendants did not make diligent efforts to verify the disparaging allegations, or to seek out and publish the plaintiff’s side of the story. As a result, the plaintiff’s side of the story as it relates to tenant abuse was not presented in the article.
[43] The appellant testified that he spent several months investigating before he wrote the Mayorgate article. However, the trial judge found that his investigation fell far short of the standard expected from a responsible journalist. While the appellant spent many hours interviewing Skorski and received copies of correspondence and some documents from him and his lawyer, given the serious allegations made by Skorski, the appellant should have actively sought out the respondent's version of events.
[44] The trial judge stated that, accepting the appellant’s evidence at its best, his investigation of the respondent’s side of the story consisted of one or two telephone messages left on an answering machine at the Paderewski Home. His calls were not returned. He never spoke to any staff member of the Paderewski Home, any Board member, the manager, or any tenant other than Skorski. He also made a telephone call, unreturned, to NRH.
[45] Further, in the telephone messages that the appellant left at the Paderewski Home, he provided no information as to the nature of the story or the allegations. He did not ask to speak with Fensom, Sotola, or the president of the Board. He simply left a message that he was a journalist doing a story and would like someone at the Paderewski Home to call him.
[46] As a result, the appellant’s investigation was neither diligent nor responsible. Given the serious allegations, the appellant should have actively sought out the respondent’s version of events. He should have attended the Paderewski Home and asked to speak to the individuals who would have knowledge of these allegations. He should have interviewed other tenants. He should have informed the plaintiff of the nature of the allegations against the Paderewski Home. He did none of this.
[47] As a result, the trial judge found the second criterion of the defence of responsible communication was not satisfied, and the defence of responsible communication failed with respect to the statements about tenant abuse and neglect in the Mayorgate article and in the so-called Gestapo letter.
The Issues on Appeal
[48] The appellant raises the following nine issues on his appeal:
Did the trial judge err in dissecting the Mayorgate article rather than accepting it as a whole for review?
Did the trial judge err in failing to identify the reasons for dismissal of the action against Alexandra Davidoff and the connection to the action against the appellant?
Did the trial judge err in the labelling of the Gestapo letter?
Did the trial judge err by misinterpreting the traditional defamation action regarding the protection of reputation?
Did the trial judge err in finding defamation after identifying the absence of malice on the part of the defendants?
Did the trial judge err in his interpretation of what constitutes civil fraud and in discounting the Forensic Auditor’s testimony on fraud by the respondent?
Did the trial judge err in disregarding the Provincial Policy on Abuse of Seniors?
Did the trial judge err in misinterpreting the validity of an illegally elected Board of Directors and their legal right to bring the defamation action as plaintiffs?
Did the trial judge err in failing to recognize that the publication by the appellant of earlier correspondence written by the respondent or its agents compensated for the defendant’s failure to obtain verbal comment from the plaintiff?
Standard Of Review
[49] On an appeal from a decision of a judge, the applicable standard of review is to be determined with reference to the nature of the question in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard of review is correctness. On questions of fact, the standard of review is palpable and overriding error. A palpable and overriding error is an error that can be plainly seen and that affected the result, is unreasonable or is unsupported by the evidence. On questions of mixed fact and law, the standard is palpable and overriding error, unless there is an extricable question of law, in which case, the standard of review on that extricable question is correctness.
Analysis
Did the trial judge err in dissecting the Mayorgate article rather than accepting it as a whole for review?
[50] The appellant argues that the trial judge err in law in viewing the Mayorgate article as three separate articles dealing with three separate issues, and then finding that the defence of justification was made out in respect of two of the issues but not the third.[^1] He says that the article should have been viewed as a whole.
[51] In support of this position, he relies on Silva v. Toronto Star Newspapers Ltd., (1998) 1998 14936 (ON SC), 167 D.L.R. (4th) 554 (Ont. S.C.), at para. 17, where Sommers J. stated, “The words complained of must be read in the context of the entire article.” But this passage does not suggest, as the appellant would have it, that particular words in an article cannot be defamatory because others are not. When Sommers J. said this, he was determining whether particular words in a lengthy article were defamatory, that is, reasonably capable of a meaning that could injure the respondent’s reputation. He stated, at para. 14, that the in determining that question, “it is necessary to take into account the context in which the words were used”, in that case, as in this case, the entire article. That is a commonsensical proposition. Nothing in Silva suggests that some parts of an article cannot be defamatory because other parts are not defamatory. The trial judge here clearly examined the impugned words in context, and there is nothing in the context that would detract from their obvious meaning.
[52] The appellant also relies on Quon v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, where McLachlin C.J. stated, at para. 30, “When determining responsibility, the jury must consider the broad thrust of the publication as a whole rather than minutely parsing individual statements.” But that statement was made in relation to determining whether a publication was on a matter of public interest in relation to the defences of fair comment and responsible communication. It says nothing about determining whether words in an article are defamatory.
[53] Finally, the appellant suggests that the fact that the language in his article was colourful and expressive, not bland and cold, assists him on this issue. In making this argument, he relies on Grant, supra, where McLachlin C.J. stated, at para. 123, “While distortion or sensationalism in the manner of presentation will undercut the extent to which a defendant can plausibly claim to have been communicating responsibly in the public interest, the defence of responsible communication ought not to hold writers to a standard of stylistic blandness” and further stated, “An otherwise responsible article should not be denied the protection of the defence simply because of its critical tone.”
[54] These comments were made in the context of the defence of responsible communication about matters of public interest, not in relation to determining whether words in an article are defamatory. But even in the context of that defence, these comments are of no assistance to the appellant. The defence failed not because an otherwise responsible article was colourful or expressive. The trial judge found that it failed because the appellant did not make diligent efforts to verify the disparaging allegations, or to seek out and publish the plaintiff’s side of the story. His investigation was neither diligent nor responsible.
[55] I would not give effect to this ground of appeal.
Did the trial judge err in failing to identify the reasons for dismissal of the action against Alexandra Davidoff and the connection to the action against the appellant?
[56] The claim against Alexandra Davidoff was dismissed at the conclusion of the respondent’s case on the consent of all parties. The appellant argues that the trial judge erred in failing to give reasons for the dismissal.
[57] This argument is devoid of merit. A trial judge is not obliged to give reasons for dismissing an action on consent, but in any event, if such an obligation existed, it could not assist the appellant on his appeal, since it had nothing to do with the claim against him.
[58] I would not give effect to this ground of appeal.
Did the trial judge err in the labelling of the Gestapo letter?
[59] The defendant Skorski sent an unsigned letter to the mayor and the NRH in which he said that he had proof of the respondent’s Gestapo style of treating helpless seniors. The appellant published this letter as part of his Mayorgate article.
[60] The appellant argues that the trial judge made a “horrendous error” in labelling this letter the Gestapo letter, asserting that “in this country we don’t accept labelling or profiling of any sort.” He says that the connotation of such a label brings images of hatred, violence and anti-Semitism. He says that under no circumstances can any Canadian accept such a label and have it public. Yet it was the appellant and Skorski that labelled the respondent with the word Gestapo and made it public and widely accessible on the Internet. The trial judge merely labelled their letter as the Gestapo letter, due to the precise language of its contents. The appellant is somehow attempting to deflect his wrongdoing onto the trial judge. The effort fails.
[61] I would not give effect to this ground of appeal.
Did the trial judge err by misinterpreting the traditional defamation action regarding the protection of reputation?
[62] The appellant appears to be arguing that because the respondent was fully funded by NRH, and because, according to the appellant, a senior staff member of NRH counselled the respondent to bring this action, the allegations of tenant abuse would not suppress the respondent’s private fundraising and could not affect its reputation in the community.
[63] The appellant’s argument conflates proof that words are defamatory, that is, that they were reasonably capable of a meaning that could injure the respondent’s reputation in the sense that they would tend to lower the respondent’s reputation in the eyes of a reasonable person, and proof of damages. But in any event, the trial judge gave ample reasons for both conclusions.
[64] The trial judge accepted that the statements about tenant abuse and neglect had been disseminated to a segment of the population and had caused a loss of reputation for the Paderewski Home. He noted that the respondent’s blog had approximately 3,000 visitors per month at the time of publication, although there was no way of knowing how many of them actually read the article. He further noted that the article remained on the blog up to the date of trial, by which time there were 8,000 to 10,000 visitors per month. He recognized that the allegations were serious, and that the issue of tenant abuse is important to a large segment of the population, particularly where the abuse is said to have been conducted by a publicly funded organization. The statements, he observed, could affect the respondent’s source of public funds, and might also suppress the possibility of private funding.
[65] I would not give effect to this ground of appeal.
Did the trial judge err in finding defamation after identifying the absence of malice on the part of the defendants?
[66] The absence of malice is not a defence to defamation. It is one consideration in relation to the defence of fair comment. Here that defence of fair comment failed with respect to tenant abuse and neglect because the appellant did not establish a different element of the defence: that the comment was based on fact, as explained earlier. The trial judge did not err in concluding that the appellant was liable for defamation despite finding that the appellant had good intentions in publishing the article.
[67] I would not give effect to this ground of appeal.
Did the trial judge err in his interpretation of what constitutes civil fraud and in discounting the Forensic Auditor’s testimony on fraud by the respondent?
[68] Robert Forsyth was retained pursuant to a court order to prepare a forensic audit report of the financial affairs of the plaintiff. Forsyth testified that Skorski raised ten or twelve concerns with him, but he found that only the concerns about the two untendered contracts discussed above had some merit. In the end, Forsyth concluded that Fensom committed civil fraud in negotiating one of those contracts. The trial judge accepted all of Forsyth’s conclusions except this one. He said, “In my view, there could have been a fraud, but it has not been proved on a balance of probabilities. The missing elements of civil fraud are the proof of a loss to the victim (the plaintiff) and the benefit to the fraudster.”
[69] The appellant argues that the trial judge applied the wrong test for civil fraud and erred in discounting the forensic auditor’s opinion. Whether or not the trial judge erred in law when he mentioned the missing elements of civil fraud, a matter that I need not determine, he was undoubtedly entitled to reject the opinion of the auditor and made no palpable and overriding error on a question of fact in concluding that civil fraud had not been established on a balance of probabilities.
[70] However, far more importantly, even if the trial judge made an extractable error of law, it was of no moment. Such an error might have deprived the appellant of the defence of justification in relation to his statements about potential fraud, but instead, the trial judge found that the defence of fair comment succeeded in relation to those statements. Either way, the statements about fraud did not attract liability, and any error was harmless.
[71] I would not give effect to this ground of appeal.
Did the trial judge err in disregarding the Provincial Policy on Abuse of Seniors?
[72] To the extent that I understand this argument, the appellant appears to be saying that the trial judge should have known of and applied a provincial policy document about the abuse of seniors, and presumably his failure to do so was an error of law. In answer to this suggestion, I simply say that it is for the trier of fact to determine whether the meaning of words used in a statement made by a defendant in a libel action are reasonably capable of a meaning that could injure the plaintiff’s reputation. Government policy on a subject cannot inform that exercise. In any event, the appellant did not adduce this policy document in evidence at trial, nor is it in the record before this court. The trial judge cannot be faulted for not considering it.
[73] I would not give effect to this ground of appeal.
Did the trial judge err in misinterpreting the validity of an illegally elected Board of Directors and their legal right to bring the defamation action as plaintiffs?
[74] I stated above that it is not clear to me whether the respondent actually alleged that the statements made in the Mayorgate article about the July 24, 2013, AGM of the respondent were defamatory. In any event, however, the trial judge found that the pertinent by-law was ambiguous, made no finding as to whether the results of the 2013 election were valid, and found no liability with respect to the statements about the AGM.
[75] Understandably, the appellant does not challenge the finding that his statements about the validity of the AGM attracted no liability. However, he now says, for the first time, not only that the Board is “illegal”, but also that “one has to question the legality of the action before the court.”
[76] There is no merit to this suggestion. There are avenues available to review the propriety of an election of a board of directors of a corporate entity. A collateral attack in an unrelated civil action brought by the corporate entity is not one of them, still less is an attack made for the first time on an appeal.
[77] I would not give effect to this ground of appeal.
Did the trial judge err in failing to recognize that the publication by the appellant of earlier correspondence written by the respondent or its agents compensated for the defendant’s failure to obtain verbal comment from the plaintiff?
[78] As I explained above, the trial judge concluded that the defence of responsible communication in relation to the appellant’s statements about tenant abuse and neglect failed because the appellant was not diligent in trying to verify the allegation. Given the seriousness of the allegations, the appellant should have actively sought out the respondent’s version of events but did not do so. I will not repeat the shortcomings of the appellant’s efforts.
[79] The appellant now points to the fact that he published four older letters from the respondent and its agents concerning allegations made against it by Skorski, and so, he argues, despite his failure as a journalist to actually obtain both sides of the story, this should have been enough to discharge his duty to take reasonable steps to ensure the publishing of both sides of the story.
[80] The defence of responsible communication contemplates that a journalist will seek out and accurately report the other side of the story as part of its diligence in trying to verify an allegation it intends to publish. It is hard to imagine how simply publishing old letters written by the “other side” related to the allegation could ever be a substitute for this without informing the other side of the nature of the allegations and diligently seeking out their response. But even if they could, here, none of the four older letters relate to the allegations of tenant abuse and neglect. They deal only with the July 23, 2013, AGM and the allegations of financial mismanagement and fraud.
[81] I would not give effect to this ground of appeal.
Disposition
[82] The appeal is dismissed. Costs are awarded to the respondent in the amount of $5,000, all inclusive.
Dambrot J.
I agree _______________________________
Stewart J.
I agree _______________________________
King J.
Released: March 15, 2022
CITATION: Paderewski Society Home (Niagara) v. Skorski, 2022 ONSC 1550
DIVISIONAL COURT FILE NO.: DC-19-00000044-00ML
DATE: 20220315
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Stewart and King J.J.
BETWEEN:
PADEREWSKI SOCIETY HOME (NIAGARA) Plaintiff (Respondent)
– and –
LEOPOLD SKORSKI, ALEXANDER DAVIDOFF and ALEXANDRA DAVIDOFF Defendants (Appellant)
REASONS FOR DECISION
Dambrot J.
Released: March 15, 2022
[^1]: I simply note that the defence of justification was not made out with respect to the allegations of misappropriation of monies and fraud, but fair comment was.