Superior Court of Justice – Ontario

CITATION: Simone v. Stacey, 2017 ONSC 2020

COURT FILE NO.: 13-471424

DATE: 20170407

BETWEEN:

MILA SIMONE Plaintiff

– and –

DAVID STACEY Defendant

COUNSEL:

Mila Simone, in person

Thomas McRae, for the Defendant

HEARD: March 6-10 and 27-29, 2017

JUDGMENT

GLUSTEIN J.:

Nature of the action

[1] The plaintiff, Mila Simone (“Simone”), brings this action against the defendant David Stacey (“Stacey”), for malicious prosecution and defamation.

[2] With respect to her malicious prosecution claim, Simone seeks (i) special damages of $8,686 for costs of defending the criminal charges, (ii) general damages of $15,000 for stress and emotional upset, (iii) aggravated damages of $10,000, and (iv) punitive damages of $15,000.

[3] With respect to the defamation claim, Simone seeks (i) general damages of $15,000, (ii) aggravated damages of $10,000, and (iii) punitive damages of $10,000.

[4] Simone also seeks costs of bringing this action.

[5] Simone led no evidence as to the cost of her criminal defence so that claim cannot stand. Consequently, her claims for damages before the court total $75,000.

Background and positions of the parties

[6] Simone was a student who attended adult classes in English as a Second Language (“ESL”) upon her arrival in Canada. Stacey was one of her teachers at both Bathurst Heights Adult Learning Centre (“Bathurst Heights”), operated by the Toronto District School Board (the “Board”), and at North York Community House (“NYCH”).

[7] Simone claims that Stacey (i) made defamatory comments that she was harassing and stalking him, and (ii) maliciously prosecuted two peace bonds against her. Simone claims that Stacey was attracted to Simone, and after Simone rebuffed Stacey’s advances and “caught” Stacey tutoring another student at Bathurst Heights, Stacey became angry towards her and engaged in the alleged conduct.

[8] Stacey denies that he engaged in any of the conduct alleged. Stacey submits that he is gay, has been in a committed common law relationship with his partner for more than 20 years, and never had any romantic interest in Simone. Stacey claims that he had, and only wanted, a teacher-student relationship with Simone.

[9] Stacey submits that Simone’s theory that he became vindictive because of private tutoring is baseless, as (i) Stacey had not been aware of any Board policy prohibiting private tutoring of students in his class and (ii) there were no consequences to Stacey tutoring the student. He was told to stop doing so and he fully complied. Stacey submits that Simone saw the student who Stacey was tutoring privately as a rival for Stacey’s attention.

[10] Stacey claims that Simone was stalking and harassing him. Stacey claims that Simone continued her conduct for more than five years before he sought a peace bond in June 2010, even though by March 2005, Stacey told Simone that there was nothing between them other than a teacher-student relationship.

[11] Stacey claims that in the spring of 2005, Simone harassed and stalked him by making inappropriate comments both to him (in person, by letter, and by email), and to school administrators. NYCH banned Simone from taking classes as of March 2005 after Stacey reported Simone’s conduct.

[12] Stacey claims that Simone continued to engage in stalking and harassment at Bathurst Heights between 2005 and 2008, even though from March 2005 the school had prohibited Simone from taking any courses with him.

[13] In approximately May 2008, there was an incident when Simone and Stacey met on the subway and then Simone wrote an email in June 2008 in which she referred to them as “friends” and said that “it’s impossible for us not to run across each other in the building or around it”. Stacey reported the incident and the email to the Bathurst Heights administration who then prohibited Simone from attending the school when Stacey was teaching.

[14] Stacey claims that Simone’s conduct continued after June 2008 and then escalated between March to June 2010, including stalking and harassment outside the school premises, both at a local shopping mall and on the subway. In June 2010 (i) Simone was permanently banned from attending classes at Bathurst Heights and (ii) Stacey sought a peace bond against Simone.

[15] Simone claims that the withdrawal of the first peace bond application demonstrates that the court did not believe Stacey’s allegations of Simone’s conduct. Stacey claims that (i) the first peace bond application was withdrawn after mediation in January 2011 on the basis that Simone not contact Stacey directly or indirectly and (ii) the statements of Crown counsel at the hearing (at which Simone was present) demonstrate that he did believe Stacey’s allegations.

[16] Stacey claims that even after his first peace bond application was withdrawn on Simone’s undertaking not to contact him directly or indirectly, Simone contacted administrators at both Bathurst Heights and NYCH repeating her false allegations and making alarming comments which led Stacey to seek another peace bond against Simone.

[17] Stacey claims that the second peace bond application was withdrawn by the Crown for reasons including lack of resources, the fact that Simone had enrolled in another school and promised to stay away, and the Crown’s understanding that Simone had not attempted to contact Stacey for the prior 11 months. Simone clams that the second peace bond application was withdrawn because the Crown would not have been able to establish criminal conduct.

The key credibility issue

[18] A seminal issue in this case is whether Simone or Stacey engaged in the conduct that each alleges against the other.

[19] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (i) that the impugned words were defamatory, in the sense that would tend to lower the plaintiff’s reputation in the eyes of a reasonable person, (ii) that the words in fact referred to the plaintiff, and (iii) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If so, falsity and damage are presumed. The onus then shifts to the defendant to advance a defence to escape liability. Usually only two defences are available: the defence that the statement was substantially true (justification) and the defence that the statement was protected by privilege (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640 (“Torstar”), at paras. 28, 29, and 32).

[20] Consequently, if the statements made by Stacey to school administrators, fellow teachers, and the Crown (as alleged in the amended amended statement of claim (the “amended claim”)) are “substantially true”, the defamation claim cannot stand.

[21] A plaintiff in a malicious prosecution case must establish that (i) the defendant instituted criminal proceedings against the plaintiff, (ii) the proceedings were terminated in favour of the plaintiff, (iii) in “the absence of reasonable and probable cause”, and (iv) with “malice, or a primary purpose other than that of carrying the law into effect” (Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] SCJ 86 (“Nelles”), at para. 42).

[22] Consequently, if Stacey had reasonable or probable cause to seek the peace bonds and did not act with malice, the malicious prosecution claims cannot stand.

[23] These credibility issues must be determined on the basis of the evidence before the court, including the testimony of both Simone and Stacey, the evidence of the other witnesses and the documentary record which includes Simone’s correspondence and transcripts of conversations recorded by Simone.

[24] I now set out the applicable findings of fact and review the evidence.

Relevant evidence and findings of fact

i) Background of the parties

[25] Simone is 49 years old and landed in Canada as an immigrant from Russia on or about November 1, 2001.

[26] Simone arrived in Canada under the name of Lioudmila Ryjenkova. She led no evidence as to when or whether she changed her name to Mila Simone, although she advised one of her former teachers or administrators in cross-examination that she had done so. In any event, the action was started under the name of Mila Simone and I refer to the plaintiff as Simone throughout these reasons.

[27] Stacey is 52 years old. He has been an adult education teacher with both the Board and NYCH for more than 20 years. I accept his uncontroverted evidence that he is gay and has been in a common law relationship with the same partner for more than 20 years.

[28] Stacey has two undergraduate degrees, one in sociology and English and one in communications. He has a master’s degree in adult education. He has worked overseas as an ESL teacher and in a volunteer capacity assisting refugees before they entered into Canada.

[29] The evidence was uncontroverted that none of Stacey’s administrators had heard of any concerns related to Stacey’s conduct towards the students in his classes during his teaching career.

[30] Earl Haye (“Haye”), the “site manager” of Bathurst Heights, had the responsibility to deal with any incidents that developed at the centre and to ensure that the programs were run as required by the Board.

[31] Haye’s unchallenged evidence was that he had worked with Stacey for 17 years and except for Simone’s allegations, there had never been an issue raised about Stacey’s conduct. I accept that evidence.

[32] Bonnie Hunter (“Hunter”) is the director of NYCH, which is a multiservice neighbourhood centre with services for different communities such as refugees, families, and new citizens. NYCH provides settlement counselling, English classes for adults, child care, and skills, leadership, and community programs for youth and parents.

[33] Hunter oversaw the ESL program at NYCH, and knew Stacey for over 15 years in his capacity as an instructor. Hunter’s unchallenged evidence was that Stacey was an excellent teacher; he was very dependable and well regarded by his students. She described Stacey as a high performer and a solid team member who had the support of his colleagues.

[34] Hunter never received a complaint about Stacey’s performance except from Simone. Stacey never asked Hunter to exclude any other student from the program.

[35] The evidence of the administrators was confirmed by teachers who worked with Stacey at both Bathurst Heights and NYCH. Charles Siedlecki, who worked with Stacey at Bathurst Heights for 15 to 16 years, had never heard of any concerns about Stacey’s conduct towards women teachers or students in his classes.

[36] Marilyn Brand-Kleiman was employed at NYCH as an ESL instructor and had been there for 8 to 10 years. Her evidence was that she knows Stacey. She described him as a “great guy”, “kind”, and “always helpful”.

[37] I now review the evidence as to the conduct of the parties during the relevant time periods.

ii) Alleged “romantic interest” between late 2004 to March 2005

[38] Simone enrolled in ESL classes shortly after she arrived in Canada in late 2001. In late 2004 or early 2005, Simone enrolled in (i) Stacey’s ESL class (at a high beginner, low intermediate level) and computer class at Bathurst Heights and (ii) Stacey’s ESL classes at NYCH (at the same level). Simone knew Stacey since he was a teacher at Bathurst Heights’ former Flemington Road location.

[39] During the time period leading up to March 2005, Simone claims that Stacey showed a romantic interest in her. Simone says that she was surprised since there were “rumours” that Stacey was gay.

[40] Simone’s position at trial is consistent with her allegation at paragraph 8 of the amended claim, at which Simone pleads:

After a short period of time David began showing very clearly his interest in me. I was surprised for there were rumours that he was gay (he confirmed this fact in his letter to my lawyer in April 2010). I knew, of course, that many gay men have female friends. However, it did not look like a simple friendship. David flirted with me heavily and gave me a lot of sexual hints. Other people noted his odd behaviour towards me as well.

[41] On the evidence, I do not find that there is any support for Simone’s belief that Stacey had a romantic interest in her or demonstrated such interest by his conduct during this (or any) time period. I find that Simone’s belief was misconstrued and consistent with a history of such misunderstandings which I review in more detail below.

[42] I now review the factors relied upon by Simone to allege that Stacey had a romantic interest in her, as well as Simone’s history of misconstruing romantic interest from her teachers.

1. The factors relied upon by Simone

[43] In cross-examination, Simone acknowledged that the basis for her belief that Stacey was romantically interested in her was set out in her examination for discovery. In particular, Simone’s belief was based on the following:

(i) In late 2004 to early 2005, Stacey and Simone occasionally took the subway together from Lawrence West station to St. George station. Lawrence West station is a few minutes walk from both NYCH (located in the Lawrence Square mall on Lawrence Avenue West) and Bathurst Heights (located a few blocks east on Lawrence Avenue West);

(ii) Stacey told Simone that he had “lost his sleep”;

(iii) Stacey would play “romantic songs as an exercise, but he stared at me”. Simone referred to the particular song “I Can’t Help Falling in Love With You” by Elvis Presley;

(iv) Stacey gave her “romantic” looks in class; and

(v) Stacey would tap his fingers on her chair as a “special greeting”.

i. Subway rides

[44] There is nothing “romantic” arising from Stacey’s occasional subway rides with Simone during this time period[^1]. Simone’s evidence on cross-examination is that this may have happened 8 to 10 times between September 2004 and January 2005.

[45] Simone was in Stacey’s adult ESL class, and they were both travelling to St. George station after class. It would not be unusual that they would occasionally take the subway together given the proximity of Bathurst Heights and NYCH to Lawrence West station and since they would both be leaving after class.

[46] Stacey always took the subway to both Bathurst Heights and NYCH as he lived in downtown Toronto.

[47] There was no reason for Stacey to have concerns about Simone’s conduct prior to the events in March 2005 described below. Consequently, there would be no reason for Stacey to either refuse to ride back with Simone or take active steps to avoid sharing public transit with her.

[48] I accept Stacey’s evidence that he was not acting as Simone’s “friend” when they shared a subway ride, let alone expressing a romantic interest in her. Stacey’s unchallenged evidence was that he would often meet students on the subway but would continue to act in a teacher-student role[^2]. Stacey did not seek out such situations, as he would have preferred to listen to music or read a book.

[49] It was Simone who misconstrued a romantic connotation from these subway rides. This is shown by Simone’s evidence from her April 13, 2011 meeting at NYCH with Hunter and Wendy Montejo (“Montejo”), manager of language programs at NYCH (the “NYCH Meeting”). Simone recorded that meeting without advising Hunter or Montejo. At trial, both a written transcript of the NYCH Meeting and a USB file recording were produced as exhibits.

[50] In the NYCH Meeting, Simone discussed her subway rides with Stacey during this initial time period. Simone confirmed that she understood from comments made by her friend at the time, Alena Arsenieva (“Alena”), that taking the subway could have a romantic connotation. Simone stated that Alena “told me it was the first time [Stacey] took subway with somebody. Maybe it’s some details, maybe it’s not important”.

[51] On the above evidence, there is no basis to find that Stacey sharing a subway ride with Simone on a few occasions between September 2004 and March 2005 demonstrates that Stacey had a romantic interest in Simone.

ii. “Losing sleep”

[52] There was no evidence at trial that Stacey told Simone that he was having trouble sleeping. On this ground alone, the factor cannot be considered.

[53] Even if Stacey had made such a comment, it is not logical that it could reasonably imply a romantic interest. Simone misconstrued that a comment about difficulty sleeping (if it was made) implied a romantic interest on the basis of her friends’ comments. According to Simone’s evidence on discovery, when she shared the comment with her friends, they “told me that it is clear” and “it shows that he is trying to say” that Stacey was romantically interested in Simone.

[54] To rely upon a comment about difficulty sleeping as a basis for romantic interest is not reasonable.

iii. Playing music in class

[55] With respect to the “romantic” songs played in class, the uncontested evidence was that all of the teachers in the ESL program at Bathurst Heights played music in their classes as a method to improve the English-language listening and understanding skills of their students.

[56] Stacey’s evidence is that he chose “slow and simple” music which was easy to understand, as an activity to make his class engaging and to provide students with a sense of accomplishment.

[57] Susan Sever (“Sever”) has taught at Bathurst Heights and its prior locations for 26 years and has known Stacey for almost 20 years. She gave evidence that all of the ESL teachers play songs as a learning tool. The teachers use songs which have words which are easy to comprehend and select songs depending on their individual taste in music. Sever’s evidence was that Stacey enjoyed and played music from Elvis Presly.

[58] Consequently, I accept Stacey’s evidence (supported by Sever) that playing “I Can’t Help Falling in Love With You” was not a surreptitious attempt to make romantic advances towards Simone, but rather a proper choice of a song with words which were easy to understand to assist in teaching ESL students to listen and understand the English language.

iv. “Romantic looks”

[59] Simone’s evidence was that Stacey stared at her during the songs with “romantic” looks.

[60] However, Simone acknowledged on discovery that Stacey looked at other students in the class in a similar manner during the songs. Simone attributed Stacey’s conduct to his alleged interest in her, in that he allegedly “played with” other students in the same way since “he tried to make me angry or jealous”.

[61] Simone’s perception is consistent with her misunderstanding that Stacey had a romantic interest in her.

[62] I do not accept Simone’s evidence. I find that Stacey was engaged with all of his students to ensure they were listening and understanding the songs he was playing, not expressing a romantic interest in Simone. He was not trying to make Simone “jealous” or indicate any romantic intent.

[63] I agree with Stacey’s written closing submissions that Simone “misperceived his professional attention to her as affection”.

v. “Special greeting” by tapping on chairs

[64] Finally, Simone led no evidence at trial that Stacey ever tapped on her chair, let alone with a “special greeting”. Consequently, this issue cannot be considered by the court.

[65] Even if such evidence had been led, tapping on a chair (without more) cannot reasonably be perceived as a “special greeting” demonstrating romantic interest, as perceived by Simone. Even if such tapping occurred, the more logical inference is that it would be a common behaviour that Stacey might adopt towards any student.

vi. Summary on Stacey’s conduct during this time period

[66] For the above reasons, I find that Stacey’s conduct during this period (or at any time) did not suggest that there was a romantic relationship or even a relationship as “friends” between Simone and Stacey. I find that Stacey only had a teacher-student relationship with Simone and that Simone misconstrued Stacey’s reasonable conduct on the subway and in class as a romantic interest.

2. Simone’s history of misconstruing romantic interest from her teachers

[67] Simone’s history of misconception of romantic relationships with her teachers is best summarized by her April 11, 2005 email:

I am so confused about some male teachers’ behaviour. I have some negative experience. They show a preety strong simpathy[^3] (noticeable by me and other student and teachers too!). But I don’t understand what they want!

[68] Simone’s misconception of a romantic relationship is also consistent with her comments at the NYCH Meeting. Simone stated that during this time period (i) “I was going through divorce I was very, you know, in a stress situation and I was kind of looking for somebody more serious”, and (ii) “And after months, I was kind of tired, you know, fed up with just talking. I don’t know. Because I didn’t know, we were friendly, he was flirting, yes?”

[69] I now review the evidence of Simone pursuing a romantic relationship with her ESL teachers and misconstruing that such a relationship existed.

[70] Walter Faion (“Faion”), another teacher at Bathurst Heights and at its predecessor location, was called by Simone as a witness.

[71] Faion’s evidence was that Simone made inappropriate advances towards him on several occasions. Simone was provided with a will-say statement of Faion’s evidence prior to trial but Simone did not testify as to their relationship when she gave her evidence to the court.

[72] I accept Faion’s evidence that on one occasion, Simone gave Faion a note in which Simone made inappropriate advances by suggesting that it was common in Russia for teachers and students to be romantically involved. Faion’s evidence was that he told Simone that such comments were inappropriate and that he was only her teacher.

[73] I also accept Faion’s evidence that Simone “ambushed” him at his car on another occasion, saying words to the effect that “all my professors were my lovers and they never said no to me, and I want you”. Faion told Simone in forceful terms that her comments were inappropriate and that he only wanted a teacher-student relationship. Faion told Simone that if she continued to pursue her conduct, he “would take it to the next level”.

[74] Simone challenges this evidence because, in Faion’s will-say statement prepared by the defendant, he said that Simone had approached him and said “What’s wrong with you? Are you afraid of me?” I note that even if those were Simone’s comments, they would still be disturbing and would demonstrate that she misconstrued her relationship with Faion.

[75] However, Faion was Simone’s witness, and when she called him, she asked him about the statement in Stacey’s notes he prepared for his union representative, in which Stacey recorded that Faion had told Stacey that Simone approached Faion and said “all my professors were my lovers and they never said no to me, and I want you”. Simone raised this issue in cross-examination to attempt to impugn Stacey’s notes.

[76] Faion responded that the “are you afraid of me” comment in his will-say statement took place on a different occasion before he received the note discussed above. He then stated that the incident described by Stacey did occur, and was another example of Stacey making improper advances to him.

[77] Finally, Faion’s uncontested evidence was that, on another occasion, Simone advised him that she was divorced and asked him if he would like to come over to her house. While she did not provide the address, she did give the street name and the location in Toronto.

[78] Even though Simone called Faion as her own witness, Simone sought to impugn Faion’s evidence because he “waved” at her in the halls and said “hello” to her after the various incidents described above. I accept Faion’s evidence that it was common for him to be friendly with past and current students, and he would often wave to them in the halls. I do not accept that Faion’s congeniality towards his students can be taken as evidence that the events Faion described did not occur.

[79] Simone gave evidence at her examination for discovery that Faion was interested in her “romantically” and “a little bit too much” and that his conduct “confused her”. She did not lead evidence on this issue or suggest such a romantic interest in her cross-examination of Faion at trial. In any event, based on the evidence I discuss above, I do not find that Faion had a romantic interest in her.

[80] I accept Faion’s evidence. He was a credible and independent witness who was called by Simone and whose evidence is consistent with Simone misinterpreting her teachers’ conduct as demonstrating a romantic interest.

[81] Simone acknowledged her evidence from her examination for discovery that she had been confused in the past by the behaviour of another teacher, Greg Edwards (“Edwards”). At trial, Simone acknowledged in cross-examination that she had thought that Edwards had been romantically interested in her when she was examined for discovery in 2014, but as of trial she thought it was all a joke.

[82] Simone acknowledged in cross-examination that she had stated in examination for discovery that (i) she had been mistaken in the past when she thought that other teachers wanted sexual relations with her but (ii) she now believed that Stacey was the only one of her teachers who did want sexual relations. However, Simone later said in her discovery that she was not sure what Stacey wanted.

3. Summary of alleged romantic interest between late 2004 and March 2005

[83] I agree with Stacey’s submission that “Ms. Simone was in fact confused and wrong in matters concerning Mr. Stacey in 2005”.

[84] Based on the above evidence, I find that Stacey did not show any romantic interest in Simone when she took classes with him in early 2005.

iii) The events of March and April 2005

[85] Simone claims that Stacey became vindictive towards her from March 2005 after (i) Simone and Haye “discovered” that Stacey was providing private tutoring to Alena (who Simone had previously considered to be a friend) and (ii) Simone flirted with a student at a field trip which made Stacey jealous.

[86] Stacey’s uncontested evidence was that (i) he was tutoring Alena privately as she was studying accounting and needed specific help with her college programs and (ii) he did not know that he could not privately tutor an adult ESL student in his class as he had done so in the past and did not know at that time that a Board policy prohibiting such tutoring had been put into place.

[87] Stacey’s position is that (i) there was no basis for him to be vindictive because of the tutoring issue as there were no consequences to him from the tutoring and (ii) he could not have been jealous of Simone flirting with a student as he had no romantic interest in her.

[88] I now review the events of March and April 2005 relevant to these positions.

1. Thursday, March 3, 2005 – The classroom incident and ensuing conduct

[89] On March 3, 2005, Simone returned to Bathurst Heights shortly after class ended and asked Haye to open the classroom door since Simone said that she had left something inside the classroom.

[90] Stacey’s evidence is uncontested that Alena had a question for him after the 4 pm to 6 pm class so they were in the classroom at approximately 6:05 pm or 6:10 pm. The door closed and had locked automatically.

[91] When Haye accompanied Simone to open the door with his key, Stacey was sitting at his instructor desk and both Haye and Simone saw Alena. Simone made a joke about private tutoring.

[92] I accept Stacey’s evidence that Haye left and then Alena left. At that point, Stacey and Simone left and walked towards the subway. At first the conversation was innocuous. However, as they proceeded Simone asked him to provide her with private tutoring. She then became agitated. Stacey described Simone’s behaviour as “alarming”.

[93] Simone told Stacey, “I want you, I need you”, as if they had been in a relationship and in a tone Stacey described as that of a “jilted lover”. He had never experienced this in any of his classes before. Stacey found Simone’s “ardour” to be perplexing.

[94] Stacey told Simone to see a psychologist because the way she was speaking suggested to him some “back-story” that was very alarming. Stacey had experience dealing with people, but this was new to him. Stacey then went on the subway. Simone did not get on with him.

[95] Simone does not deny requesting private tutoring. In her cross-examination, she pursued a line of questioning as to the reasons why Stacey did not want to tutor her when he had tutored Alena.

[96] Simone challenges Stacey’s description of the incident. She claims that there is no reference to the subway in the evidentiary record. However, Haye’s notes of March 8, 2005 (discussed below) record Stacey’s discussion with Haye that Simone had followed Stacey to the subway.

[97] Further, Stacey’s own letter of March 7, 2005 (discussed below) refers to an incident on the subway, although Simone takes the position that

in fact you first followed me in the Subway” (underlining in original).

[98] While Simone denies that that she stated “I need you. I want you”, I find that Stacey’s evidence is more consistent with the strong views Simone held that Alena was receiving too much attention in class, as I set out below. Simone’s comments in her March 7, 2005 letter that “I need these extra months” and her perceived lack of attention in the ESL class, are also consistent with the “ardour” and agitation described by Stacey.

[99] Consequently, I find that the incident took place as described by Stacey. I agree with Stacey that he was justifiably concerned by the incident and comments.

2. Friday, March 4, 2005 – Stacey advises people about the incident and Simone apologizes

[100] I accept Stacey’s uncontested evidence that the next day, March 4, 2005, he spoke to his union representative about his concerns. The union representative did not support Stacey, saying words to the effect that “Mentally ill people have rights, too”.

[101] Stacey believes he spoke with Heather Tillock (“Tillock”), manager of programs at NYCH and to Haye on the same day.

[102] That day, Simone spoke to Stacey at NYCH and apologized for her behaviour. Simone’s March 4 apology is confirmed by the letter she wrote a few days later on March 7, 2005, although Simone sought to retract her apology in the March 7 letter.

3. Monday, March 7, 2005 – Simone’s letter and the discussions between Stacey and Haye

i. The March 7, 2005 letter

[103] Simone wrote a letter to Stacey on March 7, 2005. As I discuss above, Simone referred to her apology of March 4, 2005 but then added:

Later I realized that I have nothing to be ashamed of. Actually you should’ve be sorry.

[104] In the letter, Simone blamed Alena for causing the difficulties between Simone and Stacey. Simone wrote:

Alena has done a big work to turn you against me. She completely changed the information, which I shared with her as a friend. What a lesson!.

In fact you first followed me in the Subway. I was O.K. with it. I was happy to talk with a nice person (how I thought). I first started avoid you because I felt something fishy about you. I have an excellent intuition! And everybody can see you and Alena marching after school – not us”. Besides, I have never said anything ‘strange’ or provocative. Even after that accident I just mention that I don’t understand the Canadians. It looked like I was guilty. On the other hand, you got so carried away that you told you have a ‘special’ relationship with Alena. I am not interested what kind of relationship you have. I know that you shouldn’t have any kind of relationship with a merry person.

Alena created all things in your mind. [underlining in original]

[105] Simone accused Stacey of “hiding behind the locked door” when she had come to the classroom on March 3, 2005.

[106] Simone also complained of the focus Stacey allegedly had on Alena in class. Simone wrote:

Why is [Alena] so jealous? She has a rich business, a daughter. But also she’d like to have a domestic teacher. You spend more time on her private work than on the rest of the class. But it’s not a private class! I will also persist[^4] that she has to leave the evening class earlier than me. She has been attending the class for almost ½ year longer than me. I need these extra months. It will be fair! She even isn’t coming every day! The class is full but her place is half-empty. Her sole is almost empty! She is not a smart woman to start this game with me. Now it’s my turn!

I am not asking you, I persist[^5] that you never speak with her about me anymore!!!

It’s not her business. And now it’s not yours! [Italics added, emphasis in original]

[107] Simone also claims in the letter that Alena caused a fellow student to become “a mentally sick person even in the mind of the poor girl!”

[108] Finally, Simone complained about Alena buying coffee for Stacey. Simone wrote:

And how about her ultimatum of buying coffee for you?!

[109] Stacey was concerned about the comments in the letter, as Simone seemed to suggest that there was at least a friendship between Simone and Stacey, and possibly some kind of “triangle” with Alena. Stacey was also alarmed by the tone of the letter.

[110] Stacey delivered the letter to Haye the same day.

[111] I agree with Stacey’s perception of the March 7, 2005 letter as alarming and suggesting a “triangle” between him, Alena, and Simone. There is no evidence to support any improper relationship between Stacey and Alena – it was only a teacher-student relationship. Simone’s letter demonstrates jealousy, anger, and unfounded concerns consistent with her misunderstanding that Stacey was romantically interested in her.

iii. March 7, 2005 investigation by Haye

[112] Haye investigated the various incidents. Haye took notes concurrent with his investigation which were produced as exhibits at trial.

[113] On March 7, 2005, Haye and Stacey met and discussed the Board policy against private tutoring.

[114] Haye told Stacey that it was against Board policy to tutor a student in the teacher’s class. Stacey’s evidence was that the policy might have been discussed at a voluntary meeting that Stacey had not attended. Haye told Stacey that a teacher could tutor a student if the student was not in the teacher’s class. Other teachers were tutoring other students in accordance with this policy.

[115] Stacey’s evidence is consistent with Haye’s notes that Stacey

admitted to his indiscretion of privately tutoring Alena at the same time that she was a registered student of his [and] claimed not to have been aware of the information regarding conflict of interest which was given to instructors in September.

[116] Based on the above investigations, Haye advised Stacey that he had to immediately stop privately tutoring Alena and that if he failed to do so, Haye would be required to pursue disciplinary action. Stacey agreed to abide by the Board policy. Haye was not aware of any further continuation. There was no evidence at trial that Stacey continued private tutoring. As such, there were no consequences to Stacey other than Haye speaking with him.

[117] As I discuss above, Haye’s evidence was that he had worked with Stacey for 17 years and except for Simone’s allegations, there had never been an issue raised about Stacey’s conduct. Consequently, it would have been (and was) a reasonable response for Haye to explain the Board policy to Simone with a warning that private tutoring could not continue, without further consequences.

4. Tuesday, March 8, 2005 – Haye meets with Simone and records another conversation with Stacey

i. Haye meets with Simone

[118] Haye met with Simone on March 8, 2005. Simone told Haye that the March 7, 2005 letter “was something she shouldn’t have done because she had no reason for writing it” and “claimed she must have done it out of spite” since “it seems as if Mila felt Alena was getting too much of David’s attention”.

[119] Simone confirmed in that meeting that she did not believe there was a romantic relationship between Stacey and Alena.

[120] In that meeting, I accept (as confirmed by Haye’s notes) that Simone (i) referred to Alena as “a manipulator [who] was having some effect” on Stacey and (ii) stated that the dispute between Simone and Alena was also based on an incident when “Alena bought coffee [for Stacey] at a time when Mila had offered to do so” and (iii) stated that Alena “made things worse by buying coffee again the following night”.

[121] Haye concluded that the coffee incidents “seemed to have angered Mila and led to her writing the letter”.

[122] Haye’s notes of his discussion with Simone support that Simone was jealous of a perceived relationship between Alena and Stacey.

ii. Haye’s discussion with Stacey

[123] Stacey reported to Haye that he had told Simone that she was “going to the next level” of ESL classes and advised Haye that Simone had “followed him – mall, subway”.

[124] In Haye’s notes that record the discussion, Stacey advised that Simone had “said didn’t mean to write that letter, made it up” and that Simone had said that she “want to be your friend”. Stacey reported that he had told Simone that:

I am just your teacher. I don’t want to be your friend.

[125] Simone acknowledged in cross-examination that Stacey had told her that he was just her teacher and did not want to be her friend. She could not confirm when that discussion took place but agreed that it could have been in 2005.

[126] Stacey’s comments to Haye about Simone’s apology for the March 7, 2005 letter are consistent with Simone’s statements to Haye, and I accept she made the statements recorded. Further, I accept that Stacey told Simone that there was only a teacher-student relationship between them, as he repeated in the presence of Haye at the March 17, 2005 meeting which I discuss below.

[127] Simone cross-examined Stacey as to why Haye’s note referred to Stacey being followed to the “mall” as well as the “subway” but Simone did not ask Haye that question. In any event, as the Lawrence Square mall is directly across the street from the Lawrence West station, and both are within a few minutes walk from Bathurst Heights and NYCH, the distinction is of little importance.

[128] Stacey reported to Haye that “there has never been more than a teacher student relationship between himself and either of them”, referring to both Simone and Alena.

5. Thursday, March 10, 2005 – Haye meets with Alena

[129] On March 10, 2005, Haye met with Alena. His notes indicate that Alena assured him that there was no sexual or romantic relationship between her and Stacey. Alena told Haye that Stacey was a good teacher.

6. Friday, March 11, 2005 – NYCH field trip to the ROM

[130] On March 11, 2005, Simone attended the Royal Ontario Museum (“ROM”) for a previously-scheduled field trip with her NYCH class. Stacey attended the field trip as the teacher.

[131] Stacey had no recollection of that particular ROM trip. I accept his evidence that he frequently would take a group of students (and their families) to the ROM or the Art Gallery of Ontario (“AGO”), as NYCH would receive free tickets for newcomers to Canada who often had low incomes and would have otherwise been unable to afford the admission fee. Stacey would accompany such groups on the subway to give them instructions about the ROM or the AGO but then would often leave and spend some time on his own at a coffee shop.

[132] Simone claims that Stacey became jealous when Simone “flirted” with another student and did not go back on the subway with Stacey. Simone claims that this made Stacey jealous and, along with him being “caught” tutoring, led to his alleged vindictiveness.

[133] I do not accept that Stacey became jealous or vindictive because of Simone’s flirting with another student, as I have found that Stacey had no romantic interest in Simone, and he specifically told that to Simone before and after the date of the field trip.

[134] Simone failed to understand that Stacey only wanted a teacher-student relationship and did not want to be Simone’s “friend”, let alone have a romantic relationship.

7. Thursday, March 17, 2005 – The Simone letter and meeting between Haye, Stacey and Simone

[135] On March 17, 2005, Simone met with Haye and Stacey. At that meeting, in Haye’s presence, Simone delivered a letter to Stacey that she had prepared. Simone believes the meeting took place on March 16, 2005 but the factual issue is not important.

[136] I now review both the letter and the meeting.

i. Simone’s March 17, 2005 letter

[137] In her letter, Simone apologized for her conduct. She stated

I would like to sorry if I did anything bad for you or you understood something wrongly. I am sorry! I haven’t meant anything bad.

[138] Simone added that “You are a wonderful teacher and a very nice person. I don’t want to be your enemy”.

[139] In her letter, Simone acknowledged that she was confused and angry when she wrote the March 7, 2005 letter and had exaggerated facts. She said:

I explained to Earl that I wrote [the March 7, 2005 letter] when I was confused and angry. You said something that I didn’t deserve and I exaggerated some facts. I thing it was better than gossiping behind somebody’s back. I just tried to defense. Maybe it was a wrong way. I am sorry!

[140] Simone added:

Please say anything you have on you mind and forgive me anything!

[141] However, in addition to her apology, Simone wrote:

I thing somebody wants to make a problem and create an ‘ugly’ image of me.

[142] Further, Simone suggested that Stacey was jealous of her attention to the other student at the ROM field trip. Simone wrote:

Some student brought their families. I was their friend. I was supposed not to notice them? We had fun. We were horsing around. It was a museum, not a cemetery! And I didn’t bother you anyhow. But sorry anyway!

[143] Simone stated in the letter that:

I hope we can solve any problems between us and stop this stupid war which somebody wants to keep.

[144] Stacey did not want to be in a “war” – he was a teacher who only wanted to maintain a teacher-student relationship.

[145] I accept Stacey’s evidence that he was concerned by this letter. I also agree with Stacey’s evidence that the tone of Simone’s letter concerned him despite the apology.

ii. Discussions at the meeting

[146] I accept Haye’s evidence as recorded in his concurrent note that Stacey “made it quite clear [at the meeting] that the relationship between them has never been anything more than a teacher/student one”.

[147] As a result of the above events, Haye indicated in his notes that “an effort will be made to re-schedule Mila’s classes so that she doesn’t have to be around David”.

[148] Simone says that she could take classes with other teachers when Stacey was teaching, but was prohibited from signing up for Stacey’s classes and told not to contact him. The distinction between “rescheduling” and taking classes with different teachers is not important[^6]. Either way, as a result of Haye’s investigation, Bathurst Heights took steps to ensure that Simone and Stacey would not be in contact.

[149] Haye told Simone (as reflected in his notes) that:

if she persists in trying to make contact with David or to be in his presence she will be asked to leave the school.

8. Friday, March 18, 2005 – The NYCH Letter

[150] As I discuss above, Stacey raised similar concerns about Simone’s conduct with Tillock at NYCH, where Stacey was also teaching Simone.

[151] In a letter from Tillock dated March 18, 2005 (the “NYCH Letter”), Tillock referred to a conversation she had with Simone the previous day.

[152] Stacey did not write the NYCH Letter or request that it be written, contrary to Simone’s statement in her April 11, 2005 email, which I discuss in more detail below.

[153] Tillock advised Simone in the letter that she was

not to attend North York Community House LINC classes or make any further advances towards Mr. Stacey. If you are found to be in violation of this request, the police will be contacted. I hope that you understand the consequences of this behaviour, and expect that we will have no further incidents.

[154] Tillock stated in the letter that:

In addition to your having completed the program, you have made several inappropriate advances to Mr. Stacey which he has indicated to you are not welcome. Your inappropriate behaviour is now considered harassment and if it does not cease immediately further action will be taken.

9. Summary of March 2005 events

[155] Based on the above evidence, I find that it was Simone who acted inappropriately towards Stacey during this period in March 2005, demonstrating both harassing and stalking behaviour.

[156] Stacey immediately and reasonably addressed the tutoring issue, and acted appropriately in raising his concerns about Simone’s conduct to both Bathurst Heights and NYCH.

[157] In cross-examination, Simone referred Stacey to several instances in his notes in which he stated that the above events took place in June 2005. However, not only is the distinction in date irrelevant to the events, I accept Stacey’s evidence that he misstated the dates in some of the particulars for his peace bond applications and in other documents because he did not keep a file until he was later advised to do so by Haye, after the subway incident in May 2008 discussed below.

[158] In the fall of 2010, Stacey wrote his union steward co-ordinator Betty May asking for legal assistance at the January 13, 2011 return of the first peace bond application. In so doing, he related the events to date as he recalled them. He did not have any documents to refer to when he did so, and some of his dates in this document are incorrect.

[159] Consequently, Stacey was making his best estimate at dates when he prepared documents. He gave that evidence in his examination-in-chief and was unshaken on cross-examination.

[160] Further, Simone does not suggest (and led no evidence) that the above events took place in June 2005. The concurrent notes of Haye at Bathurst Heights, Haye’s file of letters from Simone, and the NYCH Letter all confirm that the impugned conduct arose in March 2005. Consequently, any inadvertent error on the date of the March 2005 events does not affect Stacey’s credibility.

10. Monday, April 11, 2005 – Simone email to Stacey

[161] After the NYCH Letter, Simone wrote an email to Stacey on April 11, 2005, advising that “I am trying now to negotiate before going to court!” Stacey did not know how Simone obtained his personal email address.

[162] In her email, Simone states that she was upset about the NYCH Letter and claims that Stacey wrote it. Simone states:

Few days ago I got a letter from [NYCH]. The letter accuses me of stalking again and threatens me with the police. It is a very strong statement to leave it without a response. But I know that you wrote it when you were mad at me. That why I am trying now to negotiate before going to court! [Emphasis added]

[163] I accept that Stacey was legitimately concerned. He did not write the NYCH Letter. He had only told Tillock what had happened.

[164] Simone’s email raised even more disturbing concerns. Simone set out her view that (i) her past teachers had also been romantically interested in her and (ii) Stacey was jealous because Simone had flirted with a student. She stated that other male teachers in her past:

show a preety strong simpathy (noticeable by other student and teachers too!). But I don’t understand what they want! I don’t understand you also. It would be quite clear in the court that I was kicked out of the school just because I flirted with another student.

[165] Simone also suggested in the email that Stacey could be fired for his conduct. She said:

I still respect you and hope that you will not lose you job because of stupid misunderstanding. I think you cold explain what you expect from me and we can be friends again!

[166] Stacey also stated in her email that (i) the premise that a person could engage in “stalking” was false and (ii) a romantic teacher-student relationship could be appropriate:

I think this ‘stalking’ exists nowhere but in north America and just in the head of the people here! I can call my teacher from Russia whenever I need. I visited him and his family in Germany. I know one couple who were a teacher and a student in my school. They are happy together.

Canadians! Are you still human being or you are transformed insencible monsters with children-clones?! Do you still belive in love, friendship or you just worry about your jobs and can betray everybody over your happiness?!!

[167] Consequently, the April 11, 2005 email is a further demonstration of harassing and stalking conduct. I accept that Stacey had legitimate reason to be concerned.

iv) Simone’s conduct between April 2005 to May 2008

[168] I accept Stacey’s evidence that after the events described above, Simone would pace back and forth in front of Stacey’s open classroom door on the third floor at Bathurst Heights on an ongoing basis or would just stop at the open door and stare at him. Simone had been banned from NYCH.

[169] I accept Stacey’s evidence that he would frequently see Simone apparently “waiting” for him, whether in stairwells, outside the school, or on the sidewalk in front of the school. Simone would engage in aggressive staring. Consequently, Stacey was concerned that either Simone was aggressive towards him or had mental health concerns. Stacey felt anxious and would try to avoid meeting Simone by using a different stairwell.

[170] I accept Stacey’s evidence that Simone would sometimes wait where she expected him to come and glare at him while he walked by.

[171] From time to time, Simone would spend time away from Bathurst Heights altogether.

v) The subway incident in May 2008 and subsequent June 2008 email from Simone

1. May 2008 – The subway incident

[172] In May 2008, Stacey was taking the subway from St. George station to Lawrence West station. At some point, he noticed that Simone was sitting directly across from him.

[173] I accept Stacey’s evidence that he exhorted Simone to move on with her life, and to stay away from him. He told her to “back off”. Stacey told Simone that it was time to “move on” and that she should also stay away from the other male teachers.

[174] Simone’s evidence is that Stacey yelled at her and asked why she continued to attend ESL courses “for so long”. She claims that Stacey asked her if she was “sleeping” with teachers and at that point she stopped the conversation and wanted to go to a separate subway car.

[175] I again accept Stacey’s evidence on this issue. Having found that Stacey had no romantic interest in Simone, it is not logical that he would inquire as to Simone’s sexual relations with anyone.

[176] Further, Stacey’s evidence that he told Simone to avoid relationships with other male instructors is consistent with Stacey’s understanding from his discussion with Faion that Simone had made similar advances to Faion. Further, Faion had complained to Stacey about being harassed by Simone.

2. The June 8, 2008 email

[177] After the meeting on the subway, Simone wrote an email to Stacey dated June 8, 2008 in which she commented that “it’s impossible for us not to run across each other in the building or around it”. Simone stated in her email:

You are a beautiful person with a big heart and vulnerable soul. You care about your friends and students. You are intelligent as well. I know, you were very angry and upset. I am truly sorry about it. I am sorry!

[178] Simone wrote that “I am happy you broke the ice”, referring to the May 2008 incident on the subway. Given the evidence I discuss above about the subway incident, Simone’s “happy” perception of the encounter would not be accurate, and is also contrary to her description at trial of Stacey’s behaviour on the subway.

[179] Simone added in her email:

I belive, I hope, with your generosity and wisdom we can solve everything and be friends again! Please!

[180] I accept Stacey’s evidence that he was bewildered and confused by the email. He had told Simone in March 2005, from the outset of Simone’s false impression of their relationship, that there was no romance or friendship between them and that they only had a teacher-student relationship. Yet, more than three years after the initial subway incident and only a month after he told her to “back off” and to stay away from other male teachers, Simone continued to “hope” that they would “be friends again”.

[181] Because of these additional events in May and June 2008, and taking into account the earlier events discussed above, Haye banned Simone as of September 2008 from taking classes at Bathurst Heights from 2 pm to 6 pm when Stacey was teaching. She was permitted to attend from 8 am to 1:30 pm on the understanding that she leave school immediately at the end of her second class.

[182] Simone was not banned from any other school for ESL courses and could even attend at Bathurst Heights if she did not attend when Stacey was teaching.

[183] It was around this time that Haye told Stacey to start documenting his encounters with Simone.

vi) Simone’s conduct between September 2008 and March/April 2010

[184] In her letter written in support of the first peace bond application, on June 26, 2010, Sever described Simone’s stalking behaviour during the period from September 2008:

I am an ESL instructor at Bathurst Heights. On numerous occasions, I have seen Mila Ryjenkova [Simone] loitering inside and outside Bathurst Heights when she was forbidden to be in the school from 2 to 6 pm. I also observed her following David Stacey to Lawrence West Subway from Bathurst Heights.

[185] I also accept Sever’s evidence at trial that during this time period, Simone followed Stacey to the subway on several occasions.

[186] I accept Sever’s evidence that she saw Simone waiting outside Bathurst Heights when Stacey’s classes finished at 6 pm, walking back and forth in front of the school and on the side of school.

[187] On two occasions, Sever noticed that Simone would leave school and walk in the direction of the subway as Stacey left the building. Simone would walk ahead and would slow down to allow Stacey to get closer. It seemed to Sever that Simone intended to wait for Stacey in some way and Simone’s conduct frightened Sever.

[188] Sever saw Simone loiter in the alcove or lobby but Simone did not stay. Simone would leave and walk to the subway slowly. This was not after school and it would not make sense why Simone would walk in the opposite direction if she was there for a 7 pm class. Sever’s evidence was that there would be no academic reason for Simone to be at Bathurst Heights at that point. Sever saw Simone walk away from the school and towards the subway.

[189] Barbara Kedzior (“Kedzior”), another teacher at Bathurst Heights, wrote her own letter in support of the first peace bond application. Kedzior also confirmed Simone’s stalking behaviour:

I would often see Mila in the school hallways where David’s classroom was. Even after Mila was banned from the afternoon programme at Bathurst Heights, she would appear near David’s classroom in the late afternoon, ostensibly to get ready for a night class. I would also see Mila in the vicinity of the school and Lawrence Mall where David works some evenings. It seemed that wherever David was, Mila was always nearby.

[190] Kedzior confirmed the above statement in her evidence at trial. I also accept her evidence that Stacey was upset and anxious because of Simone’s conduct.

[191] Stacey’s evidence was to the same effect. He described “waves” of stalking behaviour by Simone. Stacey would see Simone at Bathurst Heights before 6 pm. This behaviour continued even after Stacey went on leave from his 4 pm to 6 pm class as I discuss below, as Stacey would see Simone when he was either teaching his 2 pm to 4 pm class of if he stayed at the school to do research towards his master’s degree.

[192] I accept the above evidence and find that Simone was stalking Stacey both at Bathurst Heights and as he left Bathurst Heights to take the subway.

vii) Escalation of incidents in April to June 2010

[193] From March or April 2010 until June 2010, Stacey was on leave from his 4 pm to 6 pm class for his graduate work but continued to teach his 2 pm to 4 pm class. On April 19, 2010 Simone enrolled in evening courses from Monday to Thursday at Bathurst Heights.

[194] Before and after Stacey’s return in June 2010, Simone’s stalking and harassing behaviour escalated. There were several incidents of concern.

1. April to May 2010 – Incidents in the Lawrence Square mall

[195] I accept Stacey’s evidence that Stacey saw Simone glaring at him from the Tim Horton’s located in the Lawrence Square mall, with her face pressed against the glass window.

[196] While it is possible that it was a coincidence that Simone was sitting in the coffee shop, her conduct of having her face pressed against the glass with a hostile glare would be disconcerting to Stacey.

[197] On another occasion during this time period, Stacey was in the Lawrence Square mall walking to teach his class at NYCH, located at the end of a long corridor in the mall. Simone came out of nowhere behind a pillar near a flower shop and brushed by Stacey. NYCH was located a few minutes walk from Bathurst Heights.

[198] Simone challenges that the flower shop incident took place, on the basis that it was not specifically referred to in Stacey’s notes for the peace bond application. However, Stacey stated in his notes that during this time period, “She always situated herself in places knowing I will run into her”. I do not find that the failure to mention the particulars of the incident is a basis to find that it did not occur. I accept Stacey’s evidence on this issue.

2. Thursday, June 3, 2010 – Haye sees Simone at Bathurst Heights outside permitted hours

[199] On June 3, 2010[^7], Haye saw Simone on the third floor of Bathurst Heights before the end of the 4 pm to 6 pm classes. Stacey would have been teaching except that he still had approximately one week remaining on his leave of absence.

[200] Haye recorded in his notes that (i) “I reminded her that she is not supposed to be in the building or on school grounds after 1:30 pm”[^8] and (ii) he “made clear to Mila that if she failed to abide by this agreement then I would seek to issue her a no trespassing letter”.

[201] Simone’s evidence at trial was that she sometimes came early for the night school, but like Haye, I reject this explanation. As Haye wrote in his concurrent note:

She said that she had come to speak with [another teacher]. She also said that she had registered in night school. That being the case she was much too early for night school. Mila was told that she shouldn’t be in the building before 7:00 pm. She asked if 6:30 would be ok. I agreed to that.

[202] In cross-examination Simone suggested to Haye that even though she could not register in a class between 2 pm and 6 pm (as she was prohibited from doing as of September 2008), she still could be in the building during those times. I agree with Haye’s response that there would be no reason to be at the school if Simone could not register for the program.

[203] Simone’s view as demonstrated by her cross-examination was that she could stay on the Bathurst Heights premises without registering for a course. This is consistent with Stacey’s position and the evidence of Sever and Kedzior that Simone was engaged in stalking and harassment after September 2008.

[204] Stacey’s leave of absence ended on June 11, 2010. He returned to work immediately thereafter.

3. Wednesday, June 16, 2010 –The Bloor-Yonge station incident

i. The date of the incident

[205] As an initial issue, Simone extensively cross-examined Stacey as to whether the incident took place on June 9 or 16, 2010, as Simone had provided an explanation for why she was on the subway on June 9, 2010.

[206] First, the date is irrelevant to the issue of stalking.

[207] In any event, I prefer the evidence that the date of the subway incident was June 16, 2010. It is consistent with (i) Haye’s letter dated June 17, 2010, which banned Simone from Bathurst Heights and would have been written immediately after Stacey reported the incident by leaving a message and (ii) the concurrent notes of Haye, which demonstrate that Haye picked up the message when he came into work on June 17, 2010. It is consistent with the need for prompt action after the harrowing event.

[208] It is also consistent with Stacey’s call to the police on June 17, 2010 seeking assistance to protect him from further contact by Simone.

[209] It is not a reasonable inference that Stacey would have waited a week to report the incident or that Haye would have waited a week to write the letter, given the urgency as described by Stacey. Haye’s evidence confirms that Stacey left a message the night of the event which Haye received the next morning.

[210] Simone did not cross-examine Haye as to the date of the incident or challenge the accuracy of the dates on Haye’s notes and his letter.

[211] Simone’s former husband testified that the subway incident occurred on June 9, 2010. He had no first hand knowledge but said that Simone was upset from that incident on that night which was supposed to be her birthday dinner.

[212] Given the concurrent notes and letter dated June 17, 2010, I prefer Stacey’s evidence that the subway incident took place on June 16, 2010.

[213] Consequently, I accept Stacey’s evidence that the reference to a June 9, 2010 date for the subway incident in his material for particulars supporting the second peace bond application was in error because he did not have the relevant documents from Haye at that time and did not recall the specific date.

[214] In any event, it is the facts surrounding the subway interaction which are relevant, not the specific date.

ii. The incident

[215] I accept Stacey’s evidence that he saw Simone on the north side of the platform at the Lawrence West station at approximately 9 pm after leaving his class at NYCH. Stacey then moved to the south end of the platform to avoid contact with Simone.

[216] Stacey arrived at St. George station and took the train east. At this point, Simone would ordinarily travel west to her home.

[217] Stacey got off the subway at the Bloor-Yonge station and took the escalator to the Yonge southbound line. He then saw Simone on the escalator 8 to 10 stairs ahead of him. He was shocked to see her standing in front of him. He had never seen Simone at the Bloor-Yonge station before, and he could not understand how she was ahead of him. I find that he reasonably concluded that she could be following him home.

[218] Stacey had no choice but to proceed up the escalator. As he reached the top of the escalator, he yelled at Simone to stay away from him. He may have cursed as well. Simone then disappeared and Stacey continued on the connecting subway.

[219] Stacey was concerned that while Simone’s harassment and stalking had been limited to school property, it was now extending to outside locations such as the Tim Horton’s and flower shop in the Lawrence Square mall and the subway.

[220] Simone claims that the subway encounter was mere coincidence, based on the evidence I discuss above that she was going for a birthday dinner with her former husband on June 9, 2010 and happened to encounter Stacey. However, given the escalating conduct of Simone’s encounters with Stacey and that Stacey had moved far away from Simone at the Lawrence West station, I find that the encounter was intentional.

[221] Further, the intentional nature of Simone following Stacey is supported by Sever’s evidence that she saw Simone follow Stacey towards the subway on several occasions.

[222] However, even if Simone’s “coincidental” version of events (rather than stalking) is accepted, Stacey’s concerns about stalking in 2010 would be reasonable based on this and earlier incidents.

[223] Consequently, I accept Stacey’s evidence that Simone’s encounter with him at the Bloor-Yonge station caused him to be very concerned that Simone might now be trying to follow him home. He felt that she was lying in wait for him, as she appeared to have done in the Lawrence Square mall only a month earlier. His concern was reasonable given the facts and history I discuss above.

[224] As a result of the subway incident, Stacey called Haye from his cell phone and left an urgent message for Haye whose notes reflect Stacey’s comments that (i) Simone had followed Stacey as he made his way home and (ii) over the past two weeks, Simone’s stalking had become progressively worse. In his message, Stacey demanded that the union and the school board deal with it.

5. Thursday, June 17, 2010 – Simone is banned from attending Bathurst Heights

[225] Early in the morning of June 17, 2010, Haye picked up a telephone message from Stacey that Simone had been following him and that the stalking was getting progressively worse.

[226] The same day, Haye wrote to Simone and advised her that “you are prohibited from entering upon the property known as Bathurst Heights Adult Learning Centre located at 640 Lawrence Avenue West in the City of Toronto”. He sent two versions of the letter since he initially used the wrong form, but Haye could not see any differences between the two letters and none were indicated in the evidence at trial.

6. Evidence that Simone did not require further ESL classes at this time

[227] Faion’s evidence (as a witness called by Simone) was that Simone insisted on being in particular ESL classes well below her fluency level. Faion was an intake assessor at Bathurst Heights who evaluated English language skills for placement in the ESL classes at Bathurst Heights.

[228] Faion stated that most people who attended ESL were new to the country and, as such, would take courses for a short time period. Faion noted that Simone stayed for a long period of time, even though she was well above the levels.

[229] Edwards was also called by Simone as a witness. Edwards’ evidence was that Simone had successfully taken the ESL courses at the highest levels. He acknowledged that there was no “exit strategy” at Bathurst Heights and, as such, if students wanted to stay in the same classroom for successive periods, they could not be forced to leave.

[230] Michael Panontin was also called as a witness by Simone. He had taught Simone in the highest level ESL classes at Bathurst Heights and his uncontested evidence was that Simone sometimes knew the lessons better than he did and would remind him if he forgot to teach certain things.

[231] Sever’s evidence was that she heard Simone speak on several occasions in the office or heard her in other conversations with students in the corridor and understood that Simone’s level of English was very good. Sever has taught ESL for 26 years. She has considerable experience in assessing English fluency.

[232] Sever stated in her letter in support of Stacey’s peace bond that:

Mr. Ryjenkova [Simone] is a peculiar student as she has been here for at least over ten years. It is clear to me that her English is fluent and she has no need to be in school. I hope that Ms. Ryjenkova will leave David Stacey alone in the future. I personally have found the whole situation intimidating, even scary and I am bewildered that such a situation could continue for so long without consequence.

[233] In Kedzior’s letter of support, she stated:

I have been teaching at Flemington/Bathurst Heights for 11 years and in that time I have seen Mila register and attend ESL classes year after year. Along with my colleagues, I have wondered why she attended our school for so many years, especially since she is quite fluent in English.

[234] Kedzior’s evidence was similar at trial.

[235] Hunter’s evidence was that there were other language programs available in the broader geographic area that are similar.

[236] Haye gave similar evidence that Bathurst Heights offered non-credit adult ESL programs to allow newcomers to Canada to improve their English skills to become integrated into Canadian society. There was no specific time for progression, but students would advance as instructors saw their skills improve. Students could enter any class they wished to enter.

[237] Haye’s evidence was that it was not typical to be an ESL student for 8 years.

[238] While Simone made some grammatical and spelling errors in some of her 2005 emails (as I discuss above), those were not significant and still reflected a reasonable degree of fluency. Her email of June 8. 2008 and her recorded conversations in April and May 2011 demonstrate a strong command of English, with minor errors. I accept that there was no linguistic need for Simone to be in the ESL courses by 2010.

[239] I accept the above evidence from the teachers and administrators who testified. Their evidence was not shaken on cross-examination. They all knew Simone well and had a similar opinion of her fluency, and as such all questioned why she continued to take classes at Bathurst Heights.

[240] I find that Simone’s insistence on remaining at Bathurst Heights throughout 2010 is consistent with a conclusion that her stalking behaviour continued (although such a factual finding, based on her fluency and continued attendance at Bathurst Heights, is not necessary to establish harassment and stalking given the evidence I discuss above).

[241] Finally, I note that at trial, Simone was fully capable of understanding the evidence, making coherent argument before the court, and preparing thorough written argument on both factual and legal submissions as well as a comprehensive brief of authorities for the trial. Consequently, based on Edwards’ evidence that Simone’s fluency at trial was similar to or only slightly better than when he was teaching her, Simone would have had a high degree of proficiency in English when she continued to attend ESL classes at Bathurst Heights.

7. Summary of Simone’s conduct during this time period

[242] Based on the above evidence, I find that Simone exacerbated her stalking and harassment of Stacey during the period from March or April to June 2010.

viii) The first peace bond application (June 2010 to January 2011)

[243] The day after the June 16, 2010 incident at the Bloor-Yonge station, Stacey spoke with both his union representative and a social worker friend, both of whom suggested that he go to the police.

[244] The union representative indicated that stalking and harassment were a common occurrence at the board. The union representative recommended that Stacey contact the police.

[245] Stacey’s friend was a social worker who had experience in domestic assault cases. She was alarmed for Stacey’s safety and advised Stacey that the longer such behaviour occurred, the worst it would become. She recommended that Stacey seek police assistance.

[246] Stacey reported his concerns about his safety to the police on June 17, 2010, which is again consistent with the incident taking place on June 16, 2010.

[247] He first met with the police at a downtown station but the response of the two male officers who interviewed him was that he should have no complaint about a woman stalking him since he was male[^9]. Nevertheless, the officers advised Stacey that if he wanted to pursue his stalking concerns, he would need to speak with North York police as the incidents had taken place in North York.

[248] Stacey contacted a North York police division on June 17, 2010. Two police officers (one male and one female) met with Stacey at Bathurst Heights on June 21, 2010. They took Stacey’s concerns seriously. The police opened a file and recommended that Stacey attempt to get a restraining order.

[249] In cross-examination, Simone challenged Stacey about the reference in the police report “that Mila might start to follow [Stacey] home or escallate to a physical level”. Simone suggested that there was no basis for such a concern.

[250] However, I accept Stacey’s evidence that he had a reasonable concern that the stalking might extend to his home or escalate to a physical level. Simone’s stalking and harassment had continued for more than five years, and had expanded beyond Bathurst Heights to include incidents of glaring at him from a Tim Horton’s in the Lawrence Square mall, hiding behind a pillar near a flower shop at the end of a long corridor and brushing by him at Lawrence Square mall, and appearing in front of him on an escalator at Bloor-Yonge station.

[251] I accept Stacey’s evidence that he did not say that he had seen Simone near his condominium (as put to him by Simone in her cross-examination). That would not have been accurate. However, Stacey had reasonable concerns that Simone might be attempting to follow him home as Stacey reported to the police.

[252] On July 2, 2010, Stacey filed an application for a peace bond. I accept Stacey’s evidence that he sought the peace bond due to reasonable concerns about his safety, as supported by his union representative, his social worker friend, the police, and justified by Simone’s conduct described above.

[253] Simone cross-examined Stacey on the basis that he had stated in a summary report to his union representative that “Mila goes to legal aid to challenge the school board’s decision to ban her” and “I go then to press charges against Mila, and so on”. Simone submits that the use of the word “then” demonstrates that Stacey’s intent in seeking the peace bond was to prevent Simone from a successful lawsuit.

[254] However, I agree with Stacey that the use of the word “then” relates to the timing of the two events, not the reason for seeking a peace bond. Stacey set out the reasons for seeking the first peace bond in detail immediately above the passage in the summary report relied upon by Simone. Stacey referred to Simone’s escalating conduct and the comments of both his union representative and the police that he pursue charges.

[255] Further, Simone had threatened to sue Stacey as early as her April 11, 2005 email, so it is not reasonable that a threat which was more than five years old would be the basis for seeking a peace bond.

[256] For his peace bond application, Stacey relied on a letter from Sever, who stated that she had seen Simone follow Stacey towards the subway and was afraid because of Simone’s conduct.

[257] Stacey also relied on a letter from Kedzior, who discussed Stacey’s stalking behaviour as set out above and stated:

I have seen my friend and colleague David go through turmoil in trying to deal with this woman’s obsessive behaviour. The school board has turned a blind eye to David’s dilemma, so I hope that the court system can protect David before the situation escalates.

[258] In cross-examination, Simone asked Stacey why the police report stated that she had been attending classes for 20 years. I accept Stacey’s evidence that he relied on Faion who had been the intake officer both at Bathurst Heights and its prior location, although I agree with Stacey’s comment that the reference to “20 years” may also be the result of an error or misunderstanding by the police officer who prepared the report. Simone did not call the police officer as a witness at trial.

[259] Simone also cross-examined Stacey about the statement in the police report that the subway incident took place when Simone approached from the rear. Simone and Stacey agree that that she was ahead of Stacey on the escalator.

[260] Again, these discrepancies in a document not prepared by Stacey are insignificant, irrelevant to the issues in this case, and do not impugn Stacey’s credibility.

[261] The peace bond matter was mediated in the summer of 2010. An agreement was reached that Stacey would not proceed with the peace bond if Simone agreed not to contact him directly or indirectly. I accept Stacey’s evidence at trial that he did not care if he obtained the peace bond, as long as Simone stayed away from him. That evidence is corroborated by his notes for the second peace bond application, in which Stacey described the mediation for the first peace bond application:

Through court mediators, [Simone’s] lawyer wants me to give up charges against Mila because it will hurt her future career in real estate. I said that I didn’t care. I just want her to stay away from me. ‘Do what you have to do so as she stays away’.

[262] On January 13, 2011, the application for the peace bond was withdrawn by the Crown. Simone attended at the hearing and advised the court that she understood that (i) she was not to contact Stacey directly or indirectly and (ii) she was to avoid any contact with him.

[263] Crown counsel advised the court at the hearing (with Simone present) that he had told Simone’s counsel:

to tell Ms. Ryjenkova that if this happens again, I spoke to the complainant and I gave him - basically told him that next time this happens, he should go and see police officers [and that] considering all the circumstances, I would not be surprised if charges – criminal charges will be laid against Ms. Ryjenkova, and I want her to keep that in mind.[Emphasis added]

[264] Crown counsel added that:

[B]ased on her assurance to the Court, the Crown is in position to withdraw this.

[265] Simone says that her lawyer “forced” her to give the undertaking not to contact Stacey directly or indirectly. Regardless of the reason for the undertaking, Simone gave it to the court and the Crown based the withdrawal of the peace bond application on it.

ix) Simone’s conduct in April and May 2011 after the first peace bond application

[266] I accept Stacey’s evidence that he hoped that after the first peace bond application, Simone would not contact him directly or indirectly.

[267] However, despite her undertaking, Simone repeated her allegations about Stacey to his employers, through the administrators at both Bathurst Heights and NYCH. Simone suggested that Stacey could be fired if her allegations were proven in court. Finally, Simone seemed to raise the issue of reinstatement to Bathurst Heights which would have put her in direct contact with Stacey.

1. April and May 2011 – Telephone conversations between Simone and Haye

[268] In a telephone conversation she recorded with Haye (without his knowledge) in April 2011 (both the transcript and original in USB form were trial exhibits), Simone told Haye that “my criminal case was withdrawn” on the basis that the Crown “didn’t believe, you know – David Stacey”.

[269] There was no basis for Simone to state that the Crown did not believe Stacey. To the contrary, Crown counsel specifically told Simone in open court that (i) the peace bond was withdrawn based on her undertaking not to contact Stacey and (ii) “if this happens again”, Crown counsel “would not be surprised if … criminal charges will be laid” since “I spoke to the complainant” and “told him that next time this happens, he should go and see police officers”. [Emphasis added]

[270] By the above comments, the Crown demonstrated a belief in Stacey’s description of Simone’s stalking and harassing behaviour.

[271] In her April 2011 conversation with Haye, Simone asked for an opportunity “to meet with you and talk about it”. Haye told Simone that he would have to speak with his manager and call her back.

[272] Haye later called Simone back (again recorded by Simone without Haye’s knowledge and both the transcript and original in USB form were trial exhibits). During that call, which took place in May 2011 (as Simone was out of the country for some time), Simone made comments which Haye understood to mean that Simone was seeking to return to Bathurst Heights.

[273] Simone told Haye that “But now, I, I believe the situation is different, right?” Haye reiterated that “the letter still stands”. Simone repeated her view that “I didn’t do anything wrong”. Haye understood that Simone was seeking reinstatement at Bathurst Heights, as shown by his repeated comments that Simone could attend at any other school for ESL, but not at Bathurst Heights.

[274] Simone then continued to pursue that issue.

[275] Simone asked Haye “But if the court decides it wasn’t my fault and I wasn’t guilty and he was guilty, was is gonna be with the letter?” Haye’s response was that “the letter still stays”. Simone then added that “I am going to go through the court, probably, and prove it”.

[276] It is confusing from the conversation as to whether Simone was seeking reinstatement. Contrary to the above comments, at times she says “I wasn’t going to attend classes there” and “I am going to another school, that’s for sure – but I think the letter is not fair to me”.

[277] On the other hand, the only significance of the letter was that it prevented Simone from attending at Bathurst Heights. As Haye repeatedly told her, Simone could register at any other ESL course offered by the Board.

[278] Consequently, it was reasonable for Haye to conclude because of these discussions that it was at least possible that Simone was seeking to return to Bathurst Heights.

[279] Stacey later learned from either Haye or Faion that the meeting had taken place and that Simone was stating that she was innocent and wanted to be reinstated.

2. April 13, 2011 – The NYCH Meeting

[280] In April 2011, Simone sought a meeting with Hunter and Montejo. Hunter gave evidence at trial about the meeting that took place on April 13, 2011. As Simone had done in the past, she also recorded the April 13, 2011 meeting without notice to Hunter or Montejo.

[281] A transcript of the recording (as well as the recording itself on a USB drive) were exhibits at trial.

[282] Prior to that meeting, Simone had contacted Montejo to request a meeting. Neither Montejo nor Hunter knew the purpose of the meeting, other than Simone had said it related to a “legal matter”. At that time, Hunter did not know of the March 18, 2005 Tillock letter which banned Simone from attending NYCH.

[283] In cross-examination of Stacey, Simone challenged whether the meeting began with only Simone and Montejo in attendance, with Hunter called down later to attend. The transcript does not assist in determining the answer, as it only reflects a conversation when all three were involved. Simone gave no evidence on the issue, and Simone did not raise this issue with Hunter in her cross-examination.

[284] In any event, the factual dispute raised by Simone is irrelevant: what is relevant is the content of the meeting, as I review below.

[285] At the NYCH Meeting, Simone made comments that raise similar confusion over whether Simone sought reinstatement to Bathurst Heights. When asked directly if “You want to go to the other school [Bathurst Heights]”, Simone does not answer “no”. Instead she suggests that she could attend where Stacey was teaching. Simone answers:

At least I would like to have the freedom to go, you know, downtown or elsewhere because this situation, even though the case was withdrawn, and … now I don’t know if even he can go and try again.

[286] Simone also told Hunter and Montejo:

If I can fix this situation with that school [Bathurst Heights], maybe it can go some different ways. You know, I don’t know.

[287] Simone told Hunter that the first peace bond application was withdrawn, “Because, I believe, I think, they didn’t believe him”. This is untrue, as I discuss above in relation to Simone’s similar statement to Haye.

[288] Simone also suggested that she had past relationships with her male teachers. She said:

Some of them use this situation, especially men, but usually it doesn’t go very far. And I’m not against it. I understand, the person is not married so why not?

[289] Simone repeated her allegation that it was inappropriate for Stacey to play songs in class. Simone told Hunter and Montejo:

And he can put song about love and something like that and stereo, he’s usually play. I think this is a little bit over the top, this is a little bit too far.

[290] Simone again stated that she and David were friends and that he had a romantic interest in her. She told Hunter that (i) “I believe we were friends”; (ii) “we were very friendly”; (iii) “we were friendly, he was flirting” and:

After a while he started to … show me his sympathy. Let’s say. Little bit. I am not against it, nothing because he is a single guy I believe, I was divorced at that time, nothing was special.

[291] As I discuss above, those comments were not true. Stacey was not “single” and his relationship with Simone was strictly teacher-student; they were not friends and Stacey did not “flirt” with Simone.

[292] Simone suggested to Hunter and Montejo that she was “trying to protect myself again” in case Stacey contacted the police again.

[293] Simone said that because the first peace bond application had been withdrawn, Stacey would not be believed in the future unless:

Something extraordinary must happen. I’m killing him with a knife, you know, something, in this case they will believe him. [Emphasis added]

[294] Simone also claimed that Stacey had approached her in the subway in June 2010 and that as such, he could not have been concerned about his safety. She said:

So if as he says in his statement to the criminal court, he was afraid of his life and properties, I believe he wouldn’t have come to me. At least I wouldn't have done this, I wouldn’t never, you know, come and asked the person who is doing, who is trying to kill me, or something, you know, at least scare me, to try and communicate with this person. [Emphasis added]

[295] Simone told Hunter and Montejo that she felt unsafe and was concerned about running into Stacey.

[296] Simone then specifically asked Haye whether Stacey “could he be fired or something” “if I win for example this case, in the civil court”. Simone asked for records which NYCH did not have.

[297] Simone also suggested at the meeting that a young girl in Stacey’s class jumped out of a window in an attempt to commit suicide, and that Stacey’s conduct towards her may have led to that suicide attempt. Simone’s comment was “maybe it wasn’t that connection, but who knows?” There was no evidence at trial to support such an allegation.

[298] At the meeting, Simone warned Hunter and Montejo to “be aware of [Stacey]”

[299] Hunter suggested that Simone and Stacey could go their separate ways. Montejo suggested that Simone “continue walking” if she were to meet Stacey. Hunter suggested that Simone could step back and could move forward if they had space.

[300] Hunter and Montejo found the meeting to be shocking and disturbing. They never had a previous issue with Stacey.

[301] In response to the meeting, NYCH changed their evening protocols and began locking doors while classes were in session. They suggested that staff not travel home on their own and asked mall security to do walk-bys to ensure nothing threatening was taking place.

[302] Ms. Brand-Kleiman was asked by her supervisor to walk with Stacey back to the subway after class on the three evenings she worked.

[303] Hunter and Montejo also found the meeting confusing. On the one hand, Simone was saying that Stacey was a “nice guy” and a “nice teacher” and described her relationship with Stacey as “very friendly”. On the other hand, Simone was suggesting that Stacey had made her feel unsafe.

[304] After the NYCH Meeting, Montejo advised Stacey that Simone was claiming that Simone and Stacey had a relationship.

[305] Hunter contacted Stacey after the NYCH Meeting to talk to him about his own feelings of safety and issues he was having, Stacey knew that the source of this threat was Simone.

[306] Hunter wrote a letter supporting Stacey’s second peace bond application which set out the substance of the NYCH Meeting.

3. Summary of April and May 2011 conduct

[307] Based on the above evidence, I find that after the first peace bond application, Simone repeated allegations about Stacey’s conduct and maintained that he had a relationship with her. Stacey was advised of the alarming nature of the discussions and the safety concerns of NYCH. These facts justified a renewed concern for his safety.

x) The second peace bond application

[308] Based on the above conduct of Simone, and the advice of Crown counsel in open court at the first peace bond application that Stacey should seek another peace bond if Simone attempted to contact him directly or indirectly, Stacey contacted the police on or about April 20, 2011 to seek a peace bond.

[309] Simone cross-examined Stacey at length as to whether her April and May 2011 meetings and discussions with Haye, and with Hunter and Montejo, constituted “indirect” contact in a manner contrary to Simone’s undertaking to the court.

[310] First, I agree with Stacey’s submission that on the facts of this case, Simone was attempting indirect contact through his employers. In particular, (i) Simone’s insistence that she and Stacey had a romantic relationship, (ii) Simone’s statement that she was innocent of any misconduct, and (iii) Simone’s request (or reasonable understanding) that she be reinstated at Bathurst Heights all were likely to, and did, result in communications of Simone’s comments to Stacey through his employers.

[311] However, regardless of whether Simone was in breach of her undertaking, Stacey had a reasonable understanding that Simone was in breach. More importantly, Stacey had independent and new information about Simone’s conduct since the first peace bond application to justify seeking a second peace bond application.

[312] By her conduct, and by continuing to raise false allegations about Stacey and pursuing reinstatement at Bathurst Heights, Stacey was justifiably alarmed. In effect, Simone had refused to “stay away” from Stacey, contrary to what Stacey hoped would happen when he agreed, at the mediation, to not pursue the first peace bond application.

[313] I do not accept Simone’s submission that Stacey only sought the second peace bond “in response” to Simone’s efforts to get him fired (from words taken out of context by Simone in an email from Stacey to a Board administrator on March 29, 2012). In the passage just above the words relied upon by Simone, Stacey explains that he sought the second peace bond because he believed (reasonably, as I have found) that Simone reneged on her undertaking, and had taken the position that she was “innocent”.

[314] Further, since Stacey had been told by Faion that Simone wanted to be reinstated at Bathurst Heights (a reasonable conclusion which could be taken from her conversations with Haye, Hunter and Montejo), Stacey had a legitimate concern that Simone was seeking to be in direct contact with him despite her undertaking to the court.

[315] Based on the above facts, Stacey swore an information for a peace bond. Other staff at Bathurst Heights and Hunter from NYCH wrote letters in support of this second peace bond application.

[316] Edwards wrote his letter at the request of Estelle Cohen, his superior at the Board. Stacey did not speak to Edwards about writing this letter.

[317] Hunter wrote a letter in support of the second peace bond application, as I discuss above. Hunter accurately reported on the NYCH Meeting without having (or knowing about) Simone’s recording.

[318] In October 2011, Crown counsel advised Stacey that since (i) Simone had enrolled in another school and had promised to stay away from Stacey and (ii) Simone had not done anything that would be seen by the courts as criminal, he would not be able to obtain the peace bond even though Simone had promised to stay away in January 2011.

[319] Crown counsel further advised Stacey that the courts did not have the resources to continue with the case.

[320] On October 27, 2011, at the hearing of the second peace bond application, Crown counsel advised the court that (i) “we’ve been advised that the accused in this case has enrolled in another school”; (ii) “she’s not intending to return to the location where the complainant or the informant works”; and (iii) “there has been no contact for the last 11 months between them”.

[321] The withdrawal of the second peace bond application does not support Simone’s claim of malicious prosecution, regardless of whether a criminal charge would have been established.

[322] For the reasons I discuss above, Stacey had reasonable and probable grounds to be concerned about his safety at the time he sought the second peace bond given (i) Simone’s statements and conduct in her dealings with Bathurst Heights and NYCH administrators, (ii) Simone’s undertaking to the court not to contact him directly or indirectly and Stacey’s belief that Simone had breached the undertaking (which I accept as a proper interpretation of the undertaking), and (iii) Crown counsel’s statement that he should seek a peace bond the “next time” Simone’s behaviour “happens again”.

[323] I accept Stacey’s evidence that he had no malicious intent in seeking either peace bond.

[324] The first peace bond application was based on the history of stalking and harassment by Simone and her escalating conduct leading up to the subway incident in June 2010.

[325] By approaching both NYCH (where she had not attended since March 2005), and Bathurst Heights, restating false allegations about Stacey and possibly seeking reinstatement, as well as reasonably constituting indirect contact, Simone’s conduct supports Stacey’s evidence that he sought the second peace bond in good faith for his protection.

[326] For the above reasons, I accept Stacey’s evidence that his only motive in seeking both peace bonds was to ensure that Simone would stay away from him. He did not act with malice.

Analysis

[327] I briefly review the applicable law on credibility, defamation and malicious prosecution, and apply the legal principles to the factual findings I discuss above.

Issue 1: Determination of credibility

[328] In her opening statement to the court, Simone described Stacey as a “narcissistic psychopath”. In her closing submissions, she described Stacey as a “pathological liar”. Simone submits that the court should reject Stacey’s evidence as to the events that are described above, and accept her evidence.

[329] Simone asks the court to accept her version of the evidence, including claims that (i) Stacey had a romantic interest in her; (ii) Stacey was upset when “caught” at private tutoring, (iii) Simone did not become agitated and say “I want you. I need you”; (iv) Stacey became upset when Simone flirted with another student at a field trip; and (v) Simone never stalked, harassed, or engaged in “watching” behaviour[^10].

[330] In fact, Simone has questioned whether stalking exists. As I discuss above in her email of April 11, 2005, she stated that:

I think this ‘stalking’ exists nowhere but in north America and just in the head of the people here!

[331] In assessing credibility, I follow the approach referenced by the Court of Appeal in Saumer v. Antoniak, 2016 ONCA 851, at para. 18:

The test must reasonably subject [the witness’] story to an examination if [sic] its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[332] For the reasons I discuss above, Simone’s evidence is not consistent with the “probabilities that surround” the existing conditions of this case. Her version of events is not in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

[333] While I have discussed why I prefer Stacey’s evidence to that of Simone, I comment generally in my analysis which follows.

[334] In the face of uncontested evidence of Stacey’s committed common law relationship of more than 20 years, his unblemished professional history, and the evidence of his colleagues and administrators who knew him for years, it is not credible that he had a romantic interest in Simone. There is no evidence other than Simone’s version of events, and her basis to establish such a relationship as she set out in her examination for discovery does not support such a conclusion.

[335] To the contrary, the “conditions” in this case demonstrate that it was Simone who made inappropriate advances to Faion in the past, and that Simone repeated on numerous occasions that it was appropriate to engage in romantic teacher-student relationships. Consequently, I do not accept Simone’s theory that Stacey was the “jilted lover” who sought revenge by his statements and peace bond applications.

[336] Similarly, the “private tutoring” theory for Stacey’s purported fabrication of events cannot stand in the face of the uncontested evidence that Stacey faced no consequences for his private tutoring. The only effect of the Board policy was that he could not tutor students in his class. Stacey could still tutor any other ESL student if he wanted.

[337] Simone’s stalking, harassment, and watching was confirmed by numerous teachers, often those called by Simone as witnesses at trial. It is not plausible that all of these teachers lied or misconstrued what they saw.

[338] With respect to the various incidents on the subway (or walking to the subway), I prefer Stacey’s evidence. Simone’s version is based on a theory that Stacey was upset with her for either romantic or tutoring reasons, and such a version is not consistent with the evidence for the reasons I summarize above.

[339] There are no serious inconsistencies with Stacey’s evidence. While he occasionally recorded a date incorrectly in his notes he prepared for the peace bond applications, the evidence was that Stacey did not keep notes until Haye told him to start doing so after the May 2008 subway incident. Stacey did not have access to Haye’s notes or his files when he prepared his notes, so any discrepancies as to dates are minor in nature, irrelevant to the issues in the action, and do not affect his credibility.

[340] Finally, I accept Stacey’s evidence that he initiated the first peace bond application because he was concerned for his physical and psychological safety after Simone had escalated her behaviour in the spring of 2010. Stacey’s evidence is consistent with “the probabilities that surround” the circumstances at that time of the escalating conduct, which was supported by the evidence of teaching staff.

[341] With respect to the second peace bond application, I again accept Stacey’s evidence that he had new and reasonable concerns for his safety, based on (i) Simone’s comments to Haye and at the NYCH Meeting as reported to Stacey, (ii) his reasonable view that Simone was attempting to contact him indirectly through his employers in a manner contrary to Simone’s undertaking at the first peace bond application, (iii) his understanding that Simone was seeking to return to Bathurst Heights, and (iv) Crown counsel’s statement at the first peace bond application that he had told Stacey that he should seek another peace bond application if Simone did not comply.

[342] Simone’s version that both peace bond applications were based on malice and without reasonable grounds, in order to respond to threatened litigation, is not consistent with the evidence.

[343] For the above reasons, I accept Stacey’s evidence on all issues where his evidence differs from that of Simone.

Issue 2: Defamation and malicious prosecution

[344] Both parties prepared detailed legal submissions and provided the court with numerous authorities to support their legal arguments. However, in the present case, there is no dispute about the general principles to establish defamation or malicious prosecution. The seminal issue is the application of the facts to the legal principles.

a) Defamation

[345] In his closing submissions, Stacey raises numerous defences to the defamation claim. In summary, Stacey submits;

i. The only defamation issues which can be considered by the court are those raised in the amended claim, so any evidence at trial about comments Stacey may have made to others about Simone’s conduct cannot found a defamation claim in this action (citing cases including Lysko v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (CA), at paras. 91 and 102);

ii. Any alleged statements by Stacey which are raised in the pleadings would be protected by either absolute privilege or qualified privilege, with the qualified privilege extending to the employment context and being protected unless Simone can establish malice (citing cases such as Torstar at para. 30; D’Addario v. Smith, 2015 ONSC 6652, at paras. 55 - 57; and Haight-Smith v. Neden, 2002 BCCA 132 at para. 44); and

iii. In any event, Stacey’s impugned statements in the claim were substantially true (citing Torstar, at para. 32).

[346] The impugned statements at paragraphs 37 to 42 and 44 of the amended claim are, in effect, Stacey’s comments to teachers, administrators, and others about Simone’s conduct based on his evidence as I discuss above. Consequently, I find that those statements are “substantially true”, and dismiss the defamation claim on that basis.

[347] The statements made by Stacey about Simone’s conduct and the events in this case, as described by the witnesses who testified at trial, cannot be considered for the defamation claim unless particularized in the amended claim, given the case law cited at paragraph 345(i) above. However, even if I could consider those additional statements by Stacey, they as well could not support a defamation claim as they are “substantially true”, based on the same review of the evidence above.

[348] Further, while not necessary to my reasons given the above finding, I also agree with Stacey that the defence of qualified privilege[^11] protects the statements made by Stacey, since they were made in a workplace environment to protect the interests of co-workers, and were not initiated by malice (as set out in the cases relied upon by Stacey at paragraph 345(ii) above).

[349] For the above reasons, I dismiss the defamation claim.

b) Malicious prosecution

[350] Again, the parties do not dispute the legal requirements to establish malicious prosecution. Under Nelles, the court held that to establish a claim in malicious prosecution, the plaintiff must prove four elements (Nelles, at para. 42):

i. criminal proceedings must have been instituted by the defendant against the plaintiff;

ii. those proceedings must have been terminated in favour of the plaintiff;

iii. the absence of reasonable and probable cause; and

iv. malice, or a primary purpose other than that of carrying the law into effect.

[351] Stacey did not contest that he instituted the peace bond proceedings, but submitted that the other three requirements of the Nelles test have not been met.

[352] Given my findings based on the evidence of Stacey and others as I discuss above, I dismiss the claim for malicious prosecution. I find that Stacey had reasonable and probable cause to seek both peace bonds, and did not seek either peace bond based on malice or a primary purpose other than carrying the law into effect.

[353] Consequently, I do not address the second requirement under Nelles as it is not necessary to these reasons.

[354] Reasonable and probable cause arises when a person holds (Nelles, at paras. 43-44);

… [an] honest belief in the guilt of the accused based on a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. …

The test contains both a subjective and objective element. There must be both the actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. …

[355] A concern about safety in the context of harassment includes both physical and psychological harm (R. v. Sillipp, 1997 ABCA 346, at para. 21).

[356] When Stacey sought the first peace bond on July 2, 2010:

(i) He had been subject to more than five years of Simone’s unwanted attentions, even though Stacey had told her by March 2005 that they only had a teacher and student relationship; and

(ii) The stalking and harassing behaviour escalated in the spring of 2010, as Simone attended at locations that she knew were frequented by Stacey including the Lawrence Square mall, the Lawrence West subway station, the corridors and stairwells outside of Stacey’s classroom at Bathurst Heights and the Bloor-Yonge subway station.

[357] Consequently, I accept and adopt Stacey’s submission at paragraph 141 of his closing submissions:

It is respectfully submitted that there can be no doubt, on the evidence, that when Mr. Stacey laid the information on July 2, 2010, both he and his colleagues reasonably perceived that Ms. Simone was stalking him.

[358] With respect to the second peace bond application, I agree for the reasons I discuss above that Simone’s attempts to communicate with Stacey’s employers were an indirect attempt to contact Stacey, as either the employer would have been required to set out Simone’s allegations against Stacey, or Stacey would have had to meet with Simone to review the allegations. Consequently, this new conduct would constitute a reasonable and probable ground to seek the peace bond, particularly as Crown counsel had invited Stacey to come back to the court if Simone violated her undertaking.

[359] However, even if the communications between Simone and Bathurst Heights and NYCH were not in violation of Simone’s undertaking, that legal distinction is not important. Stacey had reasonable grounds to be concerned for his physical and psychological safety.

[360] Stacey was advised about the alarming nature of Simone’s discussions and that NYCH felt obliged to implement a safety protocol. Hunter specifically spoke to Stacey about safety issues arising from the NYCH Meeting.

[361] Consequently, Stacey had both a subjective and objective concern for his safety and, as such, reasonable and probable cause to initiate the second peace bond on April 20, 2011.

[362] With respect to the requirement of malice, the court in Nelles held (Nelles, at para. 45):

The required element of malice is for all intents, the equivalent of ‘improper purpose’. It has according to Fleming, a ‘wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage. …

[363] As I have found above, Stacey’s conduct in seeking both peace bonds was to protect his physical and psychological safety, and I accept his evidence that he did not seek the peace bonds out of malice or for some other purpose such as to gain a collateral advantage.

[364] For the above reasons, I dismiss the malicious prosecution claim.

Conclusion

[365] I find that the statements Stacey made about Simone’s conduct, both as pleaded in the amended claim and as set out by the witnesses at trial, were (i) “substantially true” and (ii) protected by qualified privilege.

[366] Simone failed to establish on a balance of probabilities that Stacey sought either peace bond without reasonable or probable grounds or with malicious intent.

[367] I find that on the balance of probabilities, the events described by Stacey occurred as I discuss above. Simone engaged in harassment and stalking of Stacey and Stacey acted appropriately in reporting Simone’s behaviour to school administration, his colleagues, and to the police in support of the peace bond applications.

[368] Stacey’s evidence was consistent with the documentary evidence before the court, as well as the independent and often unchallenged evidence of numerous teachers and administrators at both schools as to the harassment and stalking behaviour of Simone.

[369] Further, given the uncontroverted evidence of Stacey’s unblemished history as an adult education teacher, his committed common law relationship for over 20 years, and the lack of any consequences arising from the tutoring incident, it is not logical to find that Stacey acted in a jealous or vindictive manner towards Simone or that he engaged (or sought to engage) in a romantic relationship.

Order and costs

[370] I dismiss the action. Stacey shall submit written costs submissions of no more than three pages (not including a bill of costs), by April 21, 2017. Simone may file responding written costs submissions of no more than three pages (not including a bill of costs), by May 5, 2017. If necessary, Stacey may deliver reply written costs submissions of no more than two pages by May 12, 2017.

Justice Glustein

DATE: 20170407

[^1]: There is no evidence that Stacey and Simone took the subway together after this time period (i.e. as of March 2005), which is consistent with Stacey’s evidence that he became concerned about Simone’s conduct beginning in March 2005 as I discuss in more detail below. [^2]: Stacey used the example of having a conversation with his dental hygienist as the level of conversation he might have with a student he met by chance on the subway. [^3]: Throughout these reasons, I do not correct any typographical or grammatical errors or note them by [sic]. Nor do I make any spelling or grammatical changes. While Simone did make such errors from time to time, I find that based on her letters, emails and the recorded conversations, Simone was reasonably fluent in English from 2005 onwards (albeit with some errors from time to time), with even stronger fluency as shown by her June 2008 email and the recorded conversations in 2011. I review her fluency below in relation to the evidence of her continued attendance at Bathurst Heights despite her fluency. [^4]: I accept Simone’s evidence that she meant to use the word “insist”. [^5]: See footnote 4 above [^6]: Simone’s recollection on this issue appears to be accurate as Haye did not prohibit Simone from attending Bathurst Heights during Stacey’s teaching hours until September 2008. [^7]: On June 1, 2010, Haye was told by the afternoon caretaker of Bathurst Heights who had been working on the third floor (where Stacey taught) that Simone had asked the caretaker whether a man or woman was teaching the course. Haye was also told by a supply teacher in this time period that Simone had asked her ”how much longer she would be teaching the class”. Neither the caretaker nor supply teacher gave evidence at trial so their conversations are not admissible for the truth of their contents, although they are relevant to Haye’s decision a few weeks later to permanently ban Simone from attending Bathurst Heights. [^8]: The prohibition against attending after 1:30 pm is not entirely correct in the sense that while Simone was prohibited from being on the premises while Stacey was teaching, and thus was in breach of that prohibition when Haye saw her at the school before 6 pm, Simone was permitted to attend evening classes which began at 7 pm, as Haye acknowledged in his evidence discussed below. [^9]: I do not accept this view. In my opinion, it was not an appropriate response to Stacey’s serious concerns based on Simone’s conduct. [^10]: “Watching” can also constitute harassment as “continually observing for a purpose” as described in R. v. Eltom, 2010 ONSC 4001, at para. 13. [^11]: In certain situations the defence of absolute privilege would also apply, but I do not review each allegation on this basis as it is not necessary to my reasons.